UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


NEW  JERSEY 
PROBATE  LAW  and  PRACTICE 


With  a  complete  set  of  F'orms  under  the  recent 
Orphans'  Court  and  Prerogative  Court  Rules 


By 

CHARLES  F.  KOCHER 

Author  of  Ne-Tv  Jersey  Orphans^  Court  Practice, 
Netv  Jersey  Chancery  Practic:.',  etc. 


NEWARK,    N.   J. 

SONEY    &    SAGE 
1916 


T 


Copyright,  1916,  by 
CHARLES  F.  KOCHER 


■55^1  ^i 


1 


PREFACE 

The  development  of  the  law  relating  to  practice  before  the 
Probate  Courts  of  New  Jersey,  since  the  publication  of  the 
author's  work  on  Orphans'  Court  Practice  in  1901,  seems  to 
warrant  the  ptiblication  of  these  volumes,  which  are  in  no 
sense  a  revision  of  the  former  book,  but  an  entirely  new  work. 

The  statutes  and  rules  embodied  herein  have  been  carefully 
compared,  as  to  punctuation  and  capitalization,  with  those  pub- 
lished in  the  Compiled  Statutes  and  Pamphlet  Laws.  This, 
while  necessary  from  the  standpoint  of  the  practitioner,  has 
resulted  in  a  sad  lack  oi  uniformity,  as  the  draftsman  of 
each  act  apparently  employed  a  standard  of  his  own. 

One  of  the  points  kept  in  mind  in  preparing  this  work  was 
to  group  together  under  each  subject  all  of  the  statutes  and 
rules  relating  thereto.  Inasmuch  as  many  statutes  and  rales 
include  several  subjects,  this  has  resulted  in  some  repetition, 
but  it  is  believed  that  the  resulting  convenience  will  more  than 
compensate  for  the  slight  increase  in  the  size  of  the  volumes. 

The  Author  desires  to  express  his  indebtedness  to  Mr.  Hans 
Trier,  of  the  Essex  Bar,  for  his  very  valuable  assistance  in 
reading  and  correcting  the  proofs.  Chapter  l\\  on  the 
"Power  of  Probate  Courts  to  Correct  and  Revoke  their  De- 
crees." and  also  the  article  "Claims  for  Trust  Funds  in  Pos- 
session of  Decedent,"  on  page  571,  are  from  his  pen. 

ClIARLKS    F.    KOCILI'K. 


Ill 


CONTENTS 


PART  I. 
Probate  Courts  of  New  Jer?ey. 

Chap.  I                     The  Prerogative  Court  3 

II.  The  Orphans'  Court   32 

III.  The  Surrogate's  Court  55 

IV.  Power  to  Correct  and  Revoke  Decrees  68 

V.  Appeals    "4 

PART  II. 
Wills. 

Chap.  VI.                  Xature  and  Essentials    97 

VII.  Testamentary  Capacity  103 

VIII.  Execution  of  Wills   J-5 

IX.  Appointment  of  Executors   \A5 

X.  Fraud  and  Undue  Influence   UQ 

XL                  Republication  of  Wills   1 7-! 

XII.                Revocation  of  Wills   1 77 

"      XIII.              Probate  of  Wills i?8 

XIV.              Xuncupative  Wills  -.^7 

••       XV.                Lost   Wills    243 

PART  III. 
Executors,  Administrators  and  Trustees. 

Cliap.  XVI.              Administration     2J9 

XVII.  Trustees    293 

XVIII.  Bonds  of  Administrators,  etc 306 

XIX.  Assets  337 

"       XX.                 Proceedings  for  Discovery   357 

XXI.               Inventories    3^0 

"       XXII.             Allowance  to  Family  of  Decedent   366 

XXIII.  Custody  and  Management  of  Estate  370 

XXIV.  Co-Executors  and  Co-Administrators  412 

XXV.  Real  Property  and  Interests  Therein  424 

"      XXVI.           Liability  of  Lands  for  Payment  of  Debts  457 

"      XXVII.         Sale  of  Lands  for  Payment  of  Debts |70 

"      XXVIII.       Disbursements   520 

"      XXIX.    ■       Insolvent  Estates    5^4 

'•      XXX.             Removal  of  Executors,  etc 600 

"      XXXI.           Accounting   616 

"      XXX  IT.         Commissions    675 

"      XXXIII.       Distribution    6q8 

"      XXXIV.        Suits  for  Legacies,  etc 7.^" 

V 


Contents. 


PART  IV. 

Guardianship. 

Chap.  XXXV.         Guardianship  of  Infants  741 

"      XXXVI.        Guardianship  of  Incompetents    773 

PART  V. 

Adoption. 

Chap.  XXXVII.      Adoption  of  Minors   797 

PART  VI. 

Chap.  XXXyill.    A    Summary   of   Proceedings   Before   the   Or- 
phans' Court  and  Surrogate  809 

Rules  of  the  Orphans'  Court   885 

Rules  of  the  Prerogative  Court   905 

Mortality   Tables 928 

PART  VII. 

Forms  of  Procedure 937 

Table  of  Cases  Cited   ■ 1363 

Table  of  Sections  of  Orphans'  Court  Act  Cited   1385 

Table  of  Statutes  Cited   1389 

Index  of   Forms    1399 

General  Index   1441 


PART  I. 

Probate  Courts  of  Xew  Jersey. 


New  Jersey  Probate  Law 
and  Practice- 


CHAPTER  I. 

THE   PREROGATIVE   COURT   AND   THE   POWER 
AND  JURISDICTION  OF  THE  ORDINARY. 

The  Ordinary. 

The  chancellor  is  the  ordinary,  or  surrogate  general,  and 
judge  of  the  prerogative  court. ^ 

Power  of  Ordinary  to  Call  Supreme  Court  Justice  to  His 
Assistance. 
It  shall  be  lawful  for  the  ordinary,  in  any  case  in  which  he 
may  be  interested,  or  may  have  been  concerned  for  either  party, 
or  may  have  given  an  opinion  as  attorney,  solicitor,  or  counsel 
for  either  party,  or  in  any  other  case  in  which  he  may  deem  it 
expedient,  to  call  to  his  assistance  one  or  more  of  the  justices 
of  the  supreme  court,  to  sit  and  advise  with  him  on  the  hear- 
ing or  argument  of  such  case,  or  of  any  motion  touching  the 
same,  and  by  and  with  the  advice  of  such  justice  or  justices, 
to  make  and  pronounce  such  order,  sentence  or  decree,  as  shall 
be  according  to  law  and  the  rules  and  practice  of  the  preroga- 
tive court.- 

Ordinary  to  Make  Rules  of  Practice. 

It  shall  be  the  duty  of  the  ordinary,  from  time  to  time,  to 
make  such  rules  and  orders  to  regulate  the  pleadings  and  prac- 
tice in  the  prerogative  court  and  in  the  orphans'  court  as  may, 
in  his  judgment,  render  the  practice  and  proceedings  therein 
more  simple,  expeditious  and  efficient,  and  prevent  unnecessary 
costs  and  delay,  and  for  that  purpose  he  shall  have  full  power 
to  change  and  regulate  such  pleadings  and  practice.^ 

^Constitution  of  New  Jersey,  as       Comp.  Stat.,  p.  1723,  sec.  80. 
amended,  art.  VI,  sec.  IV,  par.  2.  ^Orphans'   Court  Act,   sec.    194, 

2P.   L.    1900,   p.   347,   sec.   2.     2         3   Comp.    Stat.,  3884. 


4  Probate  Law  and  Practice. 

Power  of  Ordinary  to  Compel  Obedience  to  Decree. 

If  any  person  shall  neglect  or  refuse  to  obey  any  citation,  or 
to  perform  any  sentence  or  decree  of  the  ordinary  or  judge  of 
the  prerogative  court,  it  shall  be  lawful  for  such  ordinary  and 
such  court  to  cause  such  person,  or  persons,  by  process  di- 
rected to  any  sheriff  of  any  county  of  this  state,  to  be  taken  and 
imprisoned  until  he  shall  obey  the  said  citation,  or  perform  the 
said  sentence,  or  decree  ;  and  every  sheriff  is  hereby  directed  to 
cause  all  such  process,  to  him  at  any  time  directed,  to  be  duly 
executed,  and  to  confine  the  person  against  whom  such  process 
shall  be  issued,  as  in  execution,  until  he  shall  be  delivered  by 
due  course  of  law ;  and  if  any  sheriff'  shall  neglect  his  duty 
therein,  he  shall  be  answerable  to  the  party  aggrieved  in  such 
manner  as  he  would  be  answerable  upon  process  of  the  like 
nature  issuing  out  of  the  supreme  court.* 

Payment  of  Costs. 

The  payment  of  costs  when  awarded  by  the  prerogative 
court  may  be  compelled  in  the  same  manner  as  the  court  of 
chancery  is  authorized  to  compel  payment  thereof.^ 

Evidential  Value  of  Transcript  of  Records  of  Prerogative 
Court. 

The  transcript  of  any  will  or  testament  registered  or  re- 
corded in  the  prerogative  office,  duly  certified  by  the  register  of 
the  said  office  to  be  a  true  transcript,  shall  be  received  in  evi- 
dence in  any  court  of  this  state,  and  shall  be  as  good  and  ef- 
fectual in  law  as  if  the  books  in  which  the  same  are  registered 
or  recorded  were  then  and  there  produced  and  proved.*' 

VICE  ORDINARIES. 
Vice  Chancellors  Constituted  Vice  Ordinaries. 

Every  vice  chancellor  shall  be  a  vice  ordinary  during  his 
term  of  office  as  vice  chancellor.  The  ordinary  may  refer  to 
any  vice  ordinary  any  cause,  or  other  matter,  which  at  any 
time  may  be  pending  in  the  prerogative  court,  to  hear  the  same 

*P.   L.    1900,   p.  347,   sec.   7.  2          ^P.   L.    1900,   p.  347,   sec.   8.     2 

Comp.  Stat.,  p.  1723,  sec.  82.  Comp.  Stat.,  p.  1723,  sec.  83 ;    see 

^P.   L.    1900,   p.  347,   sec.   6.  2      also  Orphans'  Court  Act,  sec.  20, 

Comp.  Stat.,  p.  1723,  sec.  81.  3  Comp.  Stat.  3819. 


The  Prerogative  Court.  5 

for  the  ordinary,  and  report  thereon  to  him  and  advise  what 
order,  or  decree,  should  be  made  therein ;  and  any  matter,  or 
cause  in  which  the  orchnary  is  interested  may  be  so  referred. 
The  ordinary  may  also,  by  general  rule,  provide  for  the  refer- 
ence of  causes,  matters  and  proceedings,  pending,  or  future, 
to  the  vice  ordinaries.' 

General  Reference  to  Vice  Ordinaries. 

Motions  and  applications  in  the  prerogative  court,  includ- 
ing applications  for  the  probate  of  wills  and  for  the  granting 
of  administration  or  guardianship,  may  be  made  to  the  vice 
ordinaries;  and  the  same  are  hereby  referred  to  them  to  hear 
and  advise  orders  thereon  without  special  reference.** 

References  of  Causes  on  Final  Hearing. 

The  final  hearing  of  causes  in  the  prerogative  court,  includ- 
ing appeals  from  the  Orphans'  Court,  may,  at  the  discretion  of 
the  ordinary,  be  referred  to  the  vice  ordinaries  upon  motion 
and  notice,  the  same  as  references  to  vice  chancellors  are 
made  in  chancery ;  and  when  so  referred,  the  proceedings  be- 
fore the  vice  ordinaries  shall,  as  nearly  as  may  be,  be  the  same 
as  on  references  by  the  chancellor  to  vice  chancellors.^ 

Taking  of  Evidence  Before  Vice  Ordinary. 

When  any  cause  or  matter  shall  be  so  referred  to  such  vice 
ordinary  it  shall  be  lawful  for  him  to  take  and  hear  the 
evidence  of  witnesses  in  said  cause,  or  matter,  orally,  in  the 
same  manner  as  evidence  is  taken  and  heard  in  the  several 
courts  of  law  in  this  state  on  trials  before  a  jury;  and  if  a 
report  of  the  evidence  so  taken  before  him  shall  become  neces- 
sary in  the  progress  of  said  cause,  for  use  on  appeal  from  the 
order  or  decree  of  the  ordinary,  then  the  vice  ordinary  shall 
settle  and  sign  such  report.^*' 
Stenographer  to  Vice  Ordinary. 

It  shall  be  lawful  for  such  vice  ordinary  to  employ  a  compe- 
tent stenographic  reporter,  for  the  same  purposes  that  vice 
chancellors  are  authorized  by  law  to  employ  such  reporters,  and 

^P.  L.  1913,  p.  81.  '"P.    L.    1900,   p.   348,    sec.    14 

^Prerogative     Court     Rule     56.        2  Comp.  Stat.,  p.  1724,  sec.  89. 
'Prerogative  Court  Rule  57. 


6  Probate  Law  and  Practice. 

such  stenographic  reporter  shall  be  compensated  in  the  same 
manner  and  after  the  same  rates  that  such  stenographers  are 
compensated  for  services  rendered  to  vice  chancellors/^ 

TERMS  OF  PREROGATIVE  COURT. 

Stated  Terms  Abolished. 

The  prerogative  court  shall  hold  no  stated  terms,  and  all 
causes  and  matters  cognizable  before  the  ordinary,  or  any  of 
the  vice  ordinaries,  may  be  brought  on  for  hearing  at  such  days 
and  times  and  upon  such  notice,  where  notice  is  required,  as  the 
ordinary  or  vice  ordinary  may  order  and  direct,  subject  to  any 
rules  of  the  prerogative  court  heretofore  or  hereafter  to  be 
made.^- 

OFFICERS   OF   COURT. 

Proctors. 

All  solicitors  of  the  court  of  chancery  shall  be  proctors  of  the 
prerogative  court. ^^ 

Register. 

The  secretary  of  state  shall  be  register  of  the  prerogative 
court,  and  shall  perform  the  duties  required  of  him  by  law  in 
that  respect.^* 

Duty  of  Register. 

It  shall  be  the  duty  of  the  register  of  the  prerogative  court 
to  record  all  wills,  proofs,  probate  letters  testamentary  issued 
thereon  and  inventories  hereafter  proven,  and  in  cases  pending 
in  the  prerogative  court,  or  before  the  ordinary,  and  all 
accounts  of  executors,  administrators,  trustees,  and  guardians, 
letters  of  guardianship  and  letters  of  administration  hereafter 
issued,  granted  or  allowed  by  the  ordinary,  and  all  orders, 
decrees,  and  other  papers  of  a  similar  nature  required  by  law 
to  be  recorded  in  the  surrogate's  ofifices  of  the  respective  coun- 
ties ;  and  for  all  official  sendees  as  register  of  the  prerogative 
court  he  shall  be  entitled  to  charge  and  receive,  for  the  use  of 

lip.  L.  1900,  p.  349,  sec.  15.     2  ^^Constitution    of    New    Jersey, 

Comp.  Stat,  p.  1724,  sec.  90.  as  amended,  art.  VI,  sec.  IV,  par. 

12P.    L.    1914,    p.    37.  4- 

^^Prerogative  Court  Rule  r. 


The  Prerogative  Court.  7 

the  state  as  provided  by  law.  the  same  fees  as  are  allowed  by 
law  to  the  surrogates  of  the  several  counties  of  this  state  for 
like  services. ^^ 

Duty  of  Register  to  Attend  Sitting  of  Court. 

The  register  of  the  prerogative  court  shall  attend  the  sitting 
of  the  court  at  the  stated  terms,  to  register  the  decrees  and 
proceedings  of  the  court. ^® 

Commissions  of  Register  on  Deposits. 

The  register  of  the  prerogative  court  shall  be  entitled  to 
charge  and  receive,  for  the  use  of  the  state,  on  all  moneys  and 
securities  deposited  with  him  under  any  law  of  this  state  or 
the  rules  of  the  prerogative  court,  the  same  commissions  as  are 
allowed  by  law  to  the  clerk  in  chancery  for  commissions  on 
deposits.^' 

PLEADINGS. 

Petitions  to  be  Addressed  to  Ordinary. 

All  petitions  shall  be  addressed  to  the  ordinary.^^ 

Character  of  Paper  and  Typewriting. 

Every  petition  and  other  pleading,  and  all  orders  and  papers 
of  every  nature  intended  to  be  filed  in  any  proceeding  shall  be 
printed,  or  fairly  and  legibly  written  by  pen,  or  by  typewriter 
with  what  is  known  as  a  "black  record  ribbon."  and  the  paper 
upon  which  said  pleadings  or  orders  are  printed  or  written 
shall  weigh  at  least  seven  pounds  to  the  ream  of  five  hundred 
sheets.'^ 

JURISDICTION   OF   PREROGATIVE   COURT. 
General  Jurisdiction. 

In  England  the  proof  of  wills  and  granting  of  administra- 
tion, and,  in  fact,  almost  all  matters  now  within  the  jurisdic- 
tion of  our  probate  courts,  had  been  for  centuries  entrusted  to 

15?.  L.,  1900,  p.  348,  sec.  10.  2  i^P.  L.  1900,  p.  348.  sec.  11.  2 
Comp.  Stat.,  p.  1723,  sec.  79.  Comp.  Stat.  p.  1724.  sec.  86. 

i«P.   L.   1900,  p.  347,  sec.  4.  2  '"Prerogative  Court  Rule  2. 

Comp.  Stat.,  p.   1724.  sec.  85.  1  "Prerogative   Court  Rule  3. 


8  Probate  Law  and  Practice. 

the  ecclesiastical  courts.  This  jurisdiction  had  its  origin  in  very 
early  times.  It  arose  out  of  the  church's  care  for  the  soul  of 
the  decedent,  and  the  desire  to  secure  to  the  church  the  prop- 
erty that  he  had  left  in  its  care  for  the  good  of  his  soul.  To 
die  intestate  was  to  die  unconfessed,  and  intestacy  was  rare. 
As  early  as  the  eighth  century,  the  "last  words"  of  a  dying  man 
were  attested  by  the  priest,  and  we  read  that  the  clergy  were 
advised  to  take  with  them  one  or  two  witnesses,  so  that  the 
avarice  of  the  kinsfolk  might  not  contradict  what  is  said  when 
one  priest  alone  is  present.  In  the  time  of  Cnut  the  Dane, 
one  who  died  without  "last  words"  was  regarded  as  a  sinner 
to  be  excused  only  because  of  negligence  or  sudden  death  ; 
and  in  Alfred's  day,  men  disposed  of  folk  lands  as  well  as 
goods  in  post  obit  gifts  in  writing,  with  a  prayer  that  the  King 
or  the  Bishop  would  allow  the  gift  to  stand. 

After  the  conquest  there  was  no  sudden  change,  and  it  was 
in  the  twelfth  and  thirteenth  centuries  that  the  changes  took 
place  which  established  the  definite  law  which  gave  jurisdiction 
to  the  church  over  wills  of  personal  property,  and  left  the  lands 
under  the  control  of  the  king's  courts.  The  king's  courts  con- 
demned the  post  obit  gifts  of  land,  and  the  development  of  the 
law  of  primogeniture  gave  the  land  to  a  single  heir,  who  had 
nothing  to  do  with  the  chattels.  The  church  asserted  the  right 
to  protect  and  execute  the  will  of  the  dead  man,  and  the  execu- 
tor of  it  gradually  became  the  personal  representative,  who 
took  the  chattels,  but  had  nothing  to  do  with  the  freehold  lands. 
As  time  went  on  the  dread  of  intestacy  increased,  and  the 
church  asserted  the  right  and  duty  of  administering  the  goods 
of  the  dead  man  for  the  repose  of  his  soul.  By  the  time  of 
Henry  II.,  it  was  settled  that  the  church  courts  might  take  care 
of  wills,  provided  there  were  no  testamentary  gifts  of  lands ; 
and  it  is  doubtful  whether  any  such  procedure  as  we  call  pro- 
bate was  known  in  England  before  the  time  when  the  jurisdic- 
tion over  testaments  had  been  conceded  to  the  church. 

By  the  end  of  the  thirteenth  century,  it  was  settled  law  that 
the  executors  must  prove  the  will  before  the  Bishop's  court, 
and  take  an  oath  duly  to  administer  the  estate.  By  statute  31 
of  Edward  III.,  the  ordinary  was  directed  to  depute  the  next 
and  most  lawful  friends  of  a  dead  person  to  administer  his 


The  Prerogative  Court.  9 

goods.  They  were  required  to  collect  debts  due  to  him  and 
administer  them  for  the  good  of  his  soul,  and  were  required 
to  answer  in  the  King's  courts,  and  made  accountable  to  the 
ordinary,  in  the  same  manner  as  executors.-"^  Blackstone  states 
that  the  purpose  of  this  statute  was  to  enable  the  next  of  kin 
to  realize  the  assets  and  pay  the  debts,  rather  than  to  prevent 
the  ordinary  from  taking  the  estate  without  paying  the  debts.-' 

The  jurisdiction  thus  acquired  by  the  ordinary  in  the  pre- 
rogative court  extended  to  the  probate  of  wills  of  personal 
property,  the  appointment  of  administrators  and  the  account- 
ability of  executors  and  administrators." 

The  jurisdiction  of  the  ecclesiastical  courts  over  the  probate 
of  wills  aflfected  only  the  disposition  of  personal  property. 
Wills  relating  to  land  were  allowed  to  be  proved  in  order  to 
qualify  the  executors  and  enable  them  to  sue  for  debts,  but  the 
probate  had  no  effect  upon  the  title  to  land,  and  even  after  land 
was  by  statute  made  freely  devisable,  the  question  of  the 
validity  as  well  as  the  construction  of  the  will  remained  with 
the  courts  of  common  law ;  and  so  it  is  that  in  New  Jersey  the 
probate  of  a  will  is  conclusive  with  respect  to  personal  property 
only,  and  the  title  to  the  land  devised  may  be  tried  in  an  action 
of  ejectment.^^ 

When  England  separated  from  the  See  of  Rome,  this  juris- 
diction was  by  the  statute  of  23  Henry  VIII.  declared  to  be  in 
the  Bishop  of  the  Diocese  who,  when  acting  in  his  capacity  of 
ex-officio  ecclesiastical  judge,  was  called  the  ordinary ;  and  in 
cases  of  goods  within  two  Dioceses  in  the  Archbishop.  When 
acting  in  this  capacity,  the  court  presided  over  by  the  Arch- 
bishop was  called  the  prerogative  court.^* 

By  the  grant  of  Charles  II.  of  March  12,  1664,  the  soil  com- 
prised within  the  province  of  New  Jersey  was  granted  to 
James,  Duke  of  York,  afterwards  James  II.,  together  with  the 
rights  of  sovereignty.  James,  by  a  grant  made  June  24th,  in 
the  same  year,  granted  the  territory  to  Berkeley  and  Carteret, 

202  Pollock  &  Maitland,  317,  et.  ^swilkinson  v.  Trustees,  38  N. 

seq.  J-  Eq.,  SH- 

212  Blackstone  Com.,  294-296.  -*2  Pollock  &  Maitland,  340,  ct. 

222    Pollock    &    Maitland,    317,  seq. 
et.   seq. 


lo  Probate  Law  axd  Practice. 

together  with  the  same  rights  of  sovereignty  he  had  acquired 
by  his  grant.  Under  this  grant,  Berkeley  and  Carteret  became 
Lords  Proprietors  of  the  province  of  New  Jersey ;  and  a  gov- 
ernment consisting  of  a  governor,  a  council  and  a  general 
assembly  was  established  in  the  province,  in  all  respects  under 
the  control  of  the  Proprietors,  Carteret  being  the  first  gov- 
ernor. The  province  having  been  conquered  by  the  Dutch, 
and  restored  to  the  English  Crown  by  the  treaty  of  peace, 
Charles,  by  letters  patent  dated  June  29,  1674,  renewed  his 
grant  to  James;  and  James,  by  his  grant  of  the  twenty-ninth 
of  July,  1674,  renewed  his  grant  to  Berkeley  and  Carteret,  the 
provincial  government  being  continued  as  above  mentioned, 
Carteret's  commission  as  governor  being  renewed.  Other  per- 
sons, namely,  William  Penn,  Gawn  Lawry  and  Nicholas  Lucas, 
having  acquired  an  interest  in  the  grant  by  a  quintipartite  deed 
made  July  ist,  1676,  partition  was  made  of  the  province  into 
two  parts,  to  be  called  respectively,  "East  Jersey"  and  "West 
Jersey,"  Carteret  retaining  East  Jersey  and  Penn  and  his  asso- 
ciates West  Jersey.  After  this,  each  division  had  its  own 
Council  of  Proprietors  and  House  of  Assembly,  the  functions 
of  which  were  wholly  distinct. 

The  courts  in  East  Jersey,  as  established  by  the  assembly, 
were  county  courts,  justice's  courts  and  courts  of  common 
right;  the  latter  being  the  supreme  court,  having  jurisdiction 
of  all  matters,  causes  and  cases — capital,  criminal,  in  equity  and 
at  common  law. 

The  government  by  the  Board  of  Proprietors  being  unsatis- 
factory throughout  the  province,  the  power  of  the  Crown  to 
transfer  to  individuals  the  sovereignty  in  its  colonies  was 
denied  in  the  mother  country,  and  the  title  of  the  Proprietors 
to  the  soil  was  disputed  by  the  settlers.  In  May,  1701,  the 
inhabitants  of  West  Jersey  petitioned  the  King  to  be  taken 
under  the  immediate  government  of  the  Crown.  In  July  of  the 
same  year,  the  inhabitants  of  East  Jersey  presented  a  similar 
petition.  These  petitions  were  referred  to  the  Lords  of  Trade, 
who  recommended  that  a  trial  should  be  had  upon  a  feigned 
issue,  whereby  the  claim  of  the  Proprietors  to  the  right  of  gov- 
ernment might  be  determined.  Discouraged  in  their  efforts  to 
establish  a  government  in  the  province,  and  desiring  to  save  so 
much  of  the  grant  as  vested  in  them  the  title  to  the  soil,  the 


The  Prerogativk  Colrt.  ii 

Proprietors,  by  an  instrument  of  surrender  of  April  15.  1702. 
surrendered  and  yielded  up  to  the  Crown  all  their  powers, 
authorities  and  privileges  concerning  the  government  of  the 
two  provinces,  or  either  of  them,  or  of  the  inhabitants  thereof, 
reserving  to  themselves  the  title  to  the  soil.  This  surrender 
was  accepted  by  the  Crown. 

The  result  was  the  consolidation  of  the  two  divisions  of  East 
and  West  Jersey  into  and  under  one  government,  with  one  gov- 
ernor, one  council  and  one  general  assembly  for  the  enactment 
of  laws.-^  The  tirst  governor  appointed  after  the  surrender 
was  Lord  Cornbury ;  and  by  the  commission  and  explanatory 
instructions  given  him,  the  whole  ecclesiastical  jurisdiction  over 
New  Jersey  was  reserved  to  the  Bishop  of  London,  excepting 
''the  collating  of  benefices,  granting  of  licenses  for  marriages 
and  probate  of  walls,"  jurisdiction  over  which  matters  was 
granted  to  Lord  Cornbury,  and  without  variation  to  his  several 
successors.-*^ 

Thus  it  was  that  jurisdiction  over  matters  relating  to  the 
administration  of  the  estates  of  decedents  was  committed  to  the 
royal  governor,  who,  having  been  invested  with  all  of  the  juris- 
diction exercised  over  these  matters  by  the  Bishop  of  London 
in  his  capacity  as  ordinary,  naturally  assumed  the  appellation 
of  ordinary  of  the  province.  The  governor,  however,  had  not 
only  the  authority  of  an  English  ordinary,  but  of  the  Arch- 
bishop of  the  province  as  well ;  he  had  no  superior  but  the 
Queen  in  Council.  His  court  was  called  the  prerogative  court, 
the  appellation  applied,  as  we  have  seen,  to  the  Archbishop's 
court ;  nor  had  he  any  subordinates ;  his  jurisdiction  over  these 
subjects  was  sole  and  exclusive. 

Article  X,  section  i,  of  the  Constitution  of  1776,  provided 
that  "the  several  courts  of  law  and  equity,  except  as  herein 
otherwise  provided,  shall  continue  with  the  like  powers  and 
jurisdiction,  as  if  this  constitution  had  not  been  adopted,"  and 
it  is  settled  that,  in  addition  to  the  jurisdiction  conferred  upon 
the  prerogative  court  by  statute,  that  court  has  inherently  all 
the  jurisdiction  of  the  ecclesiastical  courts  of  England  at  the 
time  of  the  adoption  of  the  constitution  of  1776.'-^ 

2''Roesel  v.  State,  62  N.  J.  L.,  -'In  re  Hodnett.  65  N.  J-   I"-<1-. 

216.  329.    In  re  Conrsen's  Will,  4  N.  J. 

^''Leaniing  &  Spicer,  639.  Eq.,  408. 


12  Probate  Law  and  Practice. 

Statutory  Jurisdiction. 

The  statute  provides  that  the  authority  of  the  ordinary  shall 
extend  only  to  the  granting  of  probate  of  wills,  letters  of 
administration,  letters  of  guardianship,  and  to  the  hearing  and 
finally  determining  of  all  disputes  that  may  arise  thereon.^* 
In  addition  to  this  jurisdiction,  the  prerogative  court  has  special 
statutory  jurisdiction  over  several  matters  which  will  be  later 
considered. 

PROBATE  OF  WILL  AND  GRANT  OF  ADMINISTRATION 
BY  ORDINARY. 

Jurisdiction. 

The  original  jurisdiction  of  the  ordinary  in  all  matters  of 
probate  and  administration  is  concurrent  with  that  of  the  sur- 
rogate ;  and  where  a  surrogate  has  obtained  cognizance  of  a 
case,  the  ordinary  cannot  interfere  during  the  pendency  of 
that  case  before  the  surrogate. ^°  But  where  a  caveat  against 
the  probate  of  a  will  had  been  filed  with  the  surrogate,  and 
thereafter  application  for  probate  of  the  will  in  question  was 
made,  and  before  the  issue  of  citations  the  application  for  pro- 
bate was  withdrawn  by  a  writing  delivered  to  the  surrogate,  it 
was  held  that  the  withdrawal  was  a  sufficient  discontinuance 
of  the  proceeding,  and  that  the  ordinary  would  assume  juris- 
diction upon  a  subsequent  application  to  him  for  probate  of 
the  same  paper.^^ 

The  power  of  the  prerogative  court  to  admit  a  will  to  probate 
rests  exclusively  on  the  fact  that  decedent  was  domiciled  in 
this  state  at  the  time  of  his  death ;  otherwise  probate  must  be 
denied.  The  ordinary  has  no  jurisdiction  to  admit  to  probate 
the  will  of  a  non-resident  of  New  Jersey.^^ 

-sp.  L.   1900,  p.  346,  sec.   I.     2  from  whose  decree  the  statutory 

Comp.  Stat.,  p.  1722,  sec.  76.  period  of  review  has  expired.     In 

3oin  re  Coursen's  Will,  4  N.  J.  re    Whitehead's    Estate,    94    Atl. 

Eq.,   408.     The   Ordinary  has   no  Rep.,    796. 

jurisdiction  to  entertain  proof  of  a  ^ipjsher's    Case,   49    N.   J.    Eq., 

will  in  solemn  form  as  a  means  of  517. 

setting  aside  a  decree  of  probate  ^-In  re  Geiser's  Will,  82  N.  J. 

of    a    surrogate    who    has    acted  Eq.,    311.      Chadwick's    Case,    80 

within  his  original  jurisdiction  and  N.  J.  Eq.,  47i- 


The  Prerogative  Court.  13 

The  original  jurisdiction  of  the  ordinary  over  the  probate  of 
wills  of  residents  of  this  state  and  the  granting  of  administra- 
tion is  general  and  full,  and  not  limited  and  special.^^  So  the 
prerogative  court  has  jurisdiction  to  grant  letters  of  limited 
administration  to  a  mortgagee  on  the  estate  of  a  subsequent 
deceased  mortgagee  of  the  same  premises,  who  was  a  non- 
resident, no  administration  having  been  taken  out  in  this  state 
upon  his  estate,  in  a  case  where  such  mortgagee  is  unwilling  to 
assume  general  administration  upon  such  estate.^'' 

Proof  Required  that  No  Caveat  Has  Been  Filed  or  Dispute 
Has  Arisen. 
Probate  of  any  will  shall  not  be  granted  by  this  court,  nor 
shall  letters  of  administration  be  granted  by  it  in  any  case,  until 
proof  be  made  to  its  satisfaction  that  no  caveat  against  proving 
such  will  has  been  filed  and  that  no  dispute  has  arisen  as  to  the 
right  of  administration,  in  the  office  of  the  surrogate  of  the 
county  where  the  testator  or  intestate  resided  at  the  time  of 
his  death,  or  that  notice  has  been  given  to  all  persons  concerned 
of  the  application  to  this  court  for  the  probate  of  said  will  or 
for  letters  of  administration.^^ 

PROCEEDINGS  ON  PROBATE. 

An  executor  who  propounds  a  will  for  probate  before  the 
ordinary  may  adopt  one  of  two  alternatives,  viz:(i)  To  sub- 
mit the  will  upon  mere  proof  that  no  caveat  has  been  filed  in 
the  county  in  which  the  testator  had  residence  at  the  time  of 
his  death,  or  (2)  to  give  notice  to  all  persons  concerned  of  the 
application  for  probate.  If  he  adopts  the  former  alternative, 
and  satisfies  the  ordinary  that  no  caveat  has  been  filed,  he  may 
then  propound  the  will  and  obtain  his  probate,  without  having 
given  any  notice ;  if,  however,  a  caveat  has  been  filed,  the  ordi- 
nary will  not  allow  probate,  except  upon  notice.  The  alterna- 
tive provision  is,  however,  so  general  as  to  indicate  plainly  that 
it  was  intended  to  permit  the  executor  to  proceed  upon  such 

•■'•■'In  re  Coursen's  Will.  4  N.  J.  See   also    P.    L.    1900.    p.   343-     2 

Eq..  408.  -  Comp.  Stat.,  p.   1722.  sec.  77  and 

s^Lothrop's  Case.  33  N.  J.  Eq.,  Orphans'    Court    Act.    sec.    15.    2 

246.  Comp.  Stat.  3817. 

^•'■Prerogative     Court     Rule     lo. 


14  Probate  Law  and  Practice. 

notice,  whether  a  caveat  has  been  filed  or  not.  Upon  this  con- 
struction of  the  act,  it  follows  that  any  person  noticed  to  attend 
the  probate  must  be  admitted  to  cross-examine  the  testamen- 
tary witnesses  and  to  produce  evidence  on  the  matter  of  the 
will,  and  a  contest  against  the  will  may  be  maintained  by  him. 
It  also  follows  that  any  person  who  has  been  noticed  to  attend 
and  has  refrained  from  attending,  or  who  has  attended  and 
made  no  contest,  would  be  thereafter  estopped  by  the  order 
admitting  the  will  to  probate  from  further  contest,  at  least 
on  matters  then  apparent  or  discoverable.  If  any  party  con- 
cerned and  noticed  to  attend  be  an  infant,  there  can  be  no  doubt 
that  the  incidental  powers  of  the  ordinary  would  extend  to  the 
appointment  of  a  guardian  ad  litem  by  whom  the  infant  might 
appear,  pursuant  to  the  practice  of  courts  having  equitable  or 
ecclesiastical  jurisdiction.^® 

The  power  of  the  ordinary  to  order  the  re-probate,  upon 
notice,  of  a  will  probated  before  him  without  notice,  or  to  order 
the  re-probate,  upon  notice,  of  a  will  probated  before  the 
orphans'  court  or  surrogate  is  considered  elsewhere.^^ 

Application  for  Probate  or  Letters  of  Administration. 

The  application  for  probate  of  a  will,  for  letters  of  adminis- 
tration, letters  of  administration  with  the  will  annexed,  for 
substitutionary  administration,  or  for  substitutionary  adminis- 
tration with  the  will  annexed,  shall  be  in  writing,  verified  by 
affidavit ;  such  application  shall  state  the  residence  of  the 
applicant,  the  names  of  the  heirs  and  next  of  kin  of  the 
deceased,  so  far  as  the  same  are  known,  with  their  residences 
or  post-office  addresses,  and  the  manner  or  degree  in  which 
they  severally  stand  related  to  him  or  her ;  and  shall  also  state 
the  ages  of  any  of  said  heirs  or  next  of  kin  who  may  be  minors, 
which  application  shall  be  recorded  by  the  register  in  a  book 
to  be  kept  for  that  purpose. ^^ 

Renunciation  By  or  Notice  To  Next  of  Kin. 

Where  application  for  administration,  for  administration 
with  the  will  annexed,  for  sustitutionary  administration,  or  for 

^^In  re  Hodnett,  65  N.  J.  Eq.,       Common  Form,"  p.  190,  infra. 
329-339.  ^^Prerogative  Court  Rule  4. 

3"See  "Probate   in   Solemn   and 


The  Prerogative  Court.  15 

substitutionary  administration  with  the  will  annexed  is  made 
by  any  person  other  than  the  next  of  kin  or  party  first  entitled, 
or  by  one  of  several  equally  entitled  to  letters  of  administra- 
tion, the  person  making  such  application  shall  produce  to  the 
court  the  renunciation  and  request  of  the  persons  so  entitled 
that  letters  be  issued  according  to  the  application,  or  proof 
that  at  least  ten  days'  notice  has  been  given  to  all  of  the  next  of 
kin  or  parties  by  law  entitled  to  such  administration  who  reside 
in  this  state,  and  that  not  less  than  ten  nor  more  than  sixty 
days'  notice,  as  the  court  may  by  order  direct,  has  been  given 
to  the  said  next  of  kin  or  parties  by  law  entitled  to  such  ad- 
ministration who  shall  reside  without  this  state.  Notice  to 
non-residents  of  the  State  of  New  Jersey  may  be  sent  by  mail, 
with  the  postage  thereon  prepaid,  addressed  to  the  last  known 
residence  of  such  next  of  kin  or  parties  by  law  entitled  to 
such  administration;  which  application,  and  the  renunciation 
and  request,  if  any,  shall  be  recorded  in  a  book  to  be  kept 
for  that  purpose.^^ 

Administration  After  Forty  Days  From  Death. 

If  the  executor  named  in  any  last  will  shall  not  apply  for 
probate  of  said  will  and  for  letters  testamentary  thereon  for 
forty  days  from  the  death  of  his  testator,  or  the  next  of  kin  of 
any  person  dying  intestate  shall  not  apply  for  administration 
for  forty  days  from  the  death  of  the  intestate,  this  court  may 
grant  letters  testamentary,  or  letters  of  administration,  as  the 
case  may  be,  to  any  fit  person  who  will  accept  the  same.*" 

Notice  of  Application. 

In  all  t:ases  where  application  for  letters  testamentary  or 
letters  of  administration  is  made  under  the  provisions  of 
rule  six*^  the  petitioner  shall  give  at  least  ten  days'  notice 
to  the  executor,  if  any,  and  also  to  the  heirs,  widow,  next  of  kin, 
or  persons  entitled  to  administration,  who  are  residents  of  the 
State  of  New  Jersey  and  not  less  than  ten  nor  more  than  sixty 
days'  notice,  as  the  court  may  by  order  direct,  to  the  executor, 
if  any,  and  also  the  heirs,  widow,  next  of  kin,  or  persons 
entitled  to  administration,  who  shall  reside  without  the  State 
of  New  Jersey,  or  to  those  of  them  whose  residences  or  ad- 

39Prerogative  Court  Rule  5.  '•'See  this  page,  supra. 

♦"Prerogative  Court  Rule  6. 


i6  Probatk  Law  and  Practice. 

dresses  he  can  ascertain,  of  his  intention  to  make  such  appH- 
cation ;  which  notices  may  be  sent  by  mail  with  the  postage 
thereon  prepaid.  Proof  of  service  of  the  aforesaid  notices 
shall  be  filed  with  the  register  of  this  court.*- 

Affidavit  of  Value  of  Estate. 

Upon  application  to  this  court  for  letters  of  administration, 
administration  with  the  will  annexed,  substitutionary  adminis- 
tration, or  substitutionary  administration  with  the  will  annexed, 
the  applicant  shall  file  an  affidavit  of  the  value  of  the  estate 
for  administration  of  which  the  application  is  made.*^ 

Residents  Preferred  Over  Non-Residents. 

Where  upon  an  application  for  letters  of  administration,  ad- 
ministration with  the  will  annexed,  substitutionary  adminis- 
tration, or  substitutionary  administration  with  the  will  annexed, 
it  shall  appear  that  some  of  the  next  of  kin,  or  persons  entitled 
to  administration,  are  residents  of  the  State  of  New  Jersey, 
and  that  others  of  said  next  of  kin,  or  persons  entitled  to 
administration,  reside  without  the  State  of  New  Jersey,  this 
court,  in  granting  letters  of  administration,  shall  give  prefer- 
ence to  the  residents  of  the  State  of  New  Jersey.** 

Proceedings  Where  Will  Is  Discovered  After  Administra- 
tion Granted. 

Where  administration  of  an  estate  has  been  granted  by  this 
court,  and  afterwards  a  will  shall  be  produced  to  t4iis  court, 
or  where  probate  of  a  will  shall  have  been  granted  in  this  court 
and  afterwards  a  later  will  shall  be  produced,  the  register  shall 
issue  a  citation  to  all  persons  interested,  returnable  to  this 
court,  to  show  cause  why  probate  of  such  will  should  not  be 
granted ;  and  upon  admitting  to  probate  such  will,  the  court 
shall  require  the  administrator,  or  prior  executor,  to  make  final 
settlement  of  his  account,  and  shall  make  such  order  in  relation 
to  his  commissions  as  shall  be  just  and  equitable. *° 

^^Prerogative  Court  Rule  7.  ^^Prerogative  Court  Rule  9. 

^^Prerogative  Court  Rule  8.  ■'^Prerogative  Court  Rule  11. 


The  Prerogative  Court.  17 

SUBSTITUTIONARY  ADMINISTRATION. 

Substitutionary    Administration   After   Forty    Days   From 
Death  of  Executor  or  Administrator. 

In  all  cases  where  any  will  has  been  admitted  to  probate  by 
this  court,  or  letters  of  administration,  administration  with  the 
will  annexed,  substitutionary  administration  or  substitutionary 
administration  with  the  will  annexed,  has  been  granted  by  it, 
and  the  executor,  or  administrator,  shall  die  before  fully 
administering  the  estate  of  his  testator,  or  intestate,  and  the 
next  of  kin,  residuary  legatee,  or  persons  by  law  entitled  shall 
not  apply  for  substitutionary  administration  with  the  will 
annexed,  or  for  substitutionary  administration,  as  the  case  may 
require,  for  forty  days  after  the  death  of  such  executor,  this 
court  may  grant  letters  of  substitutionary  administration  with 
the  will  annexed,  or  letters  of  substitutionary  administration, 
as  the  case  may  require,  to  any  fit  person  who  will  accept  the 
same.*^ 

Notice  of  Application. 

In  all  cases  where  application  for  letters  of  substitutionary 
administration  is  made  under  the  provisions  of  rule  twelve*^ 
the  petitioner  shall  give  at  least  ten  days'  notice  to  the  heirs, 
widow,  next  of  kin,  residuary  legatees,  or  persons  by  law  enti- 
tled to  substitutionary  administration  with  the  will  annexed,  or 
to  substitutionary  administration,  as  the  case  may  be,  who  are 
residents  of  the  State  of  New  Jersey,  and  not  less  than  ten,  nor 
more  than  sixty,  days'  notice,  as  the  ordinary  may  by  order 
direct,  to  the  heirs,  widow,  next  of  kin,  residuary  legatees,  or 
persons  by  law  entitled  to  such  substitutionary  administration 
with  the  will  annexed,  or  to  substitutionary  administration,  as 
the  case  may  be,  who  shall  reside  without  the  State  of  New 
Jersey,  or  to  those  of  them  whose  residences  or  addresses  he 
can  ascertain,  of  his  intention  to  make  such  application,  which 
notices  may  be  sent  by  mail,  with  the  postage  thereon  prepaid. 
Proof  of  service  of  the  aforesaid  notices  shall  be  filed  with 
the  Register  of  the  Court.*** 

♦"Prerogative  Court  Rule  12.  ■•^Prerogative  Court  Rule  13. 

*~  See  this  page,  supra. 

3 


l8  Probate  Law  and  Practice. 

LETTERS  TESTAMENTARY  AND  LETTERS  OF  ADMINIS- 
TRATION. 

Form  of  Letters  of  Substitutionary  Administration. 

To  All  to  Whom  These  Presents  shall  come.     Greeting: 

Whereas,  A.  B.,  late  of  the  County  of  M.,  in  the  State  of 
New  Jersey,  departed  this  life  intestate,  of  whose  goods,  chat- 
tels and  credits  administration  was  duly  committed  to  C.  D. : 
and  the  said  C.  D.,  after  taking  upon  himself  the  burden  of 
said    administration,   departed    this    life   (or  was   removed), 

(or    discharged)     from    the    said    office    by    , 

(as  the  case  may  be).  Therefore  I,  E.  R.  W.,  Ordinary,  or 
Surrogate-General  and  Judge  of  the  Prerogative  Court  of 
the  State  of  New  Jersey,  do  in  the  place  and  stead  of  the  said 
C.  D.,  hereby  substitute  and  appoint  E.  F.,  administrator  of  all 
and  singular  the  goods,  chattels  and  credits  of  said  intestate 
who  is  duly  authorized  as  such  substituted  administrator  to 
administer  the  same  agreeably  to  law.*^ 

Form  of  Letters  of  Substitutionary  Administration  With 
the  Will  Annexed. 

To  All  to  Whom  These  Presents  Shall  Come,  Greeting : 
Whereas,  A  B,  late  of  the  county  of  M,  in  the  State  of  New 
Jersey,  died,  having  made  and  executed  a  last  will  and  testa- 
ment, which  has  been  duly  proved  according  to  law  before  the 
Ordinary  of  the  State  of  New  Jersey,  and,  whereas,  the  said 
testator  appointed  C.  D.  executor  thereof,  who,  after  taking 
upon  himself  the  burden  of  administration,  departed  this  life, 
(or  was   removed)    (or   discharged)     from    his    said   office 

by ,  (as     the    case     may     be).       Therefore, 

I,  E.  R.  W.,  Ordinary,  or  Surrogate-General  and  Judge  of  the 
Prerogative  Court  of  the  State  of  New  Jersey,  do,  in  the 
place  and  stead  of  the  said  C.  D.,  hereby  substitute  and 
appoint  E.  F.,  administrator  of  all  and  singular  the  goods, 
chattels  and  credits  of  the  said  testator,  who  is  duly  authorized 
as  such  substituted  administrator  to  administer  the  same  agree- 
ably to  said  will.^° 

^^Prerogative  Court  Rule  14.  ^oprerogative  Court  Rule  15. 


The  Prerogative  Court.  19 

Form  o£  Letters  to  be  Changed  to  Accord  to  Facts. 

If  the  appointment  is  in  substitution  of  an  administrator 
with  the  will  annexed  who  has  died,  been  removed,  or  dis- 
charged, the  form  is  to  be  changed  to  accord  with  the  fact.^^ 

Register  to  Sign  Letters. 

Letters  testamentary  and  letters  of  administration  shall  be 
signed  by  the  register  of  the  prerogative  court. '^^ 

SUBSEQUENT  PROCEEDINGS  AFTER  PROBATE  OF 
WILL  OR  GRANT  OF  LETTERS  BY  ORDINARY. 

Subsequent  Proceedings  to  be  Before  Surrogate. 

When  any  will  shall  be  admitted  to  probate,  or  letters  of 
administration  or  of  guardianship  shall  be  granted  by  the 
ordinary,  all  subsequent  proceedings  relating  to  the  adminis- 
tration and  settlement  of  the  estate  of  such  testator,  intestate 
or  minor,  shall  be  had  before  the  Surrogate  and  Orphans'  Court 
of  the  county  in  which  by  law  such  probate  might  have  been 
granted,  or  letters  issued ;  provided,  nevertheless,  that  the 
inventory  of  any  administrator  pendente  lite  appointed  by  the 
prerogative  court  shall  be  exhibited  to  the  register,  and  his 
account  settled  before  the  ordinary  in  that  court.^^ 

Proceedings  Where  Will  Proved,  or  Letters  Granted,  By 
Ordinary. 

Where  any  will  shall  hereafter  be  admitted  to  probate,  or 
letters  of  administration  or  of  guardianship  shall  hereafter  be 
granted,  by  the  ordinary,  the  executor,  administrator,  or  guard- 
ian shall  file  in  the  office  of  the  surrogate  of  the  county  in 
which  the  testator  or  intestate  resided  at  the  time  of  his  death, 
or  in  which  the  ward  may  reside,  a  transcript  of  such  will,  the 
proofs  thereof,  the  order  for  probate  and  the  letters  testamen- 
tary, a  transcript  of  such  letters  of  administration,  or  guardian- 
ship, duly  certified  by  the  register  under  the  seal  of  the  prerog- 
ative court,  which  transcript  shall  be  recorded  in  such  surro- 

■1  Prerogative  Court  Rule  16.  ssQrphans'  Court  Act,  sec.  6.    3 

^^Prerogative  Court  Rule  i?-  Comp.    Stat.,    3815. 


20  Probate  Law  and  Practice. 

gate's  office,  for  which  the  surrogate  shall  be  entitled  to  receive 
the  same  fees  now  allowed  by  law  for  recording  wills  and  the 
proofs  thereof.^* 

Transcript    of    Record    of    Prerogative    Court    May    Be 
Recorded    in    Surrogate's  Office, 

Any  person  interested  may  cause  a  transcript  of  any  will, 
proofs,  order  for  probate,  letters  testamentary,  letters  of 
administration,  letters  of  guardianship,  certified  by  the  register 
under  the  seal  of  the  prerogative  court  to  be  recorded  in  the 
office  of  the  surrogate  before  whom  such  probate  might  law- 
fully have  been  made  or  by  whom  such  letters  might  have  been 
granted ;  transcripts  from  such  record,  when  duly  certified  by 
the  surrogate,  shall  be  received  in  evidence  in  any  of  the  courts 
of  this  state,  and  shall  have  the  same  force  and  effect  as  if  cer- 
tified by  the  register  of  the  prerogative  court. ^^ 

GUARDIANSHIP. 

Application  for  Letters  of  Guardianship. 

Application  for  letters  of  guardianship  shall  be  in  writing, 
verified  by  affidavit ;  such  application  shall  state  the  age  and 
residence  of  the  minor,  the  names  and  residences  of  his  nearest 
of  kin,  the  names  and  residences  of  all  persons  standing  in  loco 
parentis  to  such  minor,  if  any,  and  the  names  and  residences 
of  the  persons  with  whom  he  resides,  and  shall  have  annexed 
thereto  an  affidavit  of  the  value  of  the  personal  estate  of  said 
minor  and  the  amount  of  the  income  from  any  real  estate 
belonging  to  him.  In  the  case  of  applications  by  orphans  over 
the  age  of  fourteen  years,  the  foregoing  affidavit  shall  be  made 
by  some  person  having  personal  knowledge  of  the  value  of  the 
personal  estate  of  said  minor  and  the  amount  of  the  income 
from  any  real  estate  belonging  to  him.^''^ 

Notice  of  Application  for  Guardianship. 

Where  application  for  letters  of  guardianship  of  an  orphan 
under  fourteen,  or  guardianship  upon  the  estate  of  a  minor 

540rphans'  Court  Act,  sec.  4.    3       Comp.  Stat.,  3815- 
Comp.    Stat..   3815.  seprerogative  Court  Rule  18. 

s^Orphans'  Court  Act,  sec.  5.    3 


The  Prerogative  Court.  21 

whose  father  is  living,  is  made  by  any  person  other  than  the 
next  of  kin,  or  party  first  entitled,  or  by  one  of  several  equally 
entitled  to  receive  letters  of  guardianship,  the  person  making 
such  application  shall  produce  to  this  court  the  renunciation  and 
request  of  such  persons  so  entitled,  and  of  the  person  or  persons 
standing  in  loco  parentis  to  said  minor,  if  any,  and  also  of  the 
persons  with  whom  said  minor  resides,  that  letters  be  issued 
according  to  the  application,  or  proof  that  at  least  ten  days' 
notice  has  been  given  to  all  of  the  next  of  kin  or  parties  by  law 
entitled  to  such  guardianship,  and  to  all  persons  standing  in 
loco  parentis,  to  said  minor,  if  any,  and  also  to  the  persons  with 
whom  said  minor  resides,  who  reside  in  this  state ;  or  that  not 
less  than  ten,  nor  more  than  sixty  days'  notice,  as  this  court 
may  by  order  direct,  has  been  given  to  the  said  next  of  kin  or 
parties  by  law  entitled  to  such  guardianship,  and  to  any  person 
standing  in  loco  parentis  to  said  minor,  and  to  the  persons  with 
whom  the  said  minor  may  reside,  who  shall  reside  without  this 
state.  Notice  to  non-residents  of  the  State  of  New  Jersey  may 
be  sent  by  mail  with  the  postage  thereon  prepaid,  addressed  to 
the  last  known  residence  of  such  next  of  kin,  persons  standing 
in  loco  parentis,  persons  with  whom  said  minor  may  reside  or 
parties  by  law  entitled  to  such  guardianship.  The  application 
and  the  renunciation  and  request,  if  any,  shall  be  recorded  by 
the  register  in  a  book  to  be  kept  for  that  purpose.^^ 

Appointment  of  Guardian  for  Infant  Over  14  for  Whom  a 
Guardian  Has  Been  Appointed  While  Under  14. 

In  case  any  orphan,  for  whom,  while  under  the  age  of  four- 
teen years,  a  guardian  has  been  appointed  by  this  court,  desires, 
upon  arriving  at  the  age  of  fourteen  years,  to  choose  another 
guardian,  application  may  be  made  to  this  court,  which  appli- 
cation shall  be  signed  by  the  minor  in  the  presence  of  the  ordi- 
nary, a  vice  ordinary,  or  a  special  master  in  chancery  of  New 
Jersey,  and  shall  be  in  conformity  with  the  requirements  of 
Rule  eighteen. 

The  same  notice  of  such  application  shall  be  given  to  the 
existing  guardian,  and  also  to  the  next  of  kin,  persons  standing 
in    loco   parentis   and   persons   with    whom    such   minor   may 

'^Prerogative  Court  Rule  19. 


22  Probate  Law  and  Practice. 

reside,  as  is  prescribed  in  Rule  nineteen'^^ ;  upon  such  applica- 
tion, the  court  shall  inquire  into  the  circumstances  of  the  case, 
and  shall  take  such  action  in  respect  to  the  appointment  of  a 
guardian,  or  guardians,  for  such  minor  as  shall  seem  to  be  for 
his  best  interest  and  advantage/'^ 

Proof  Required  That  No  Dispute  As  To  Guardianship  Has 
Arisen. 

Letters  of  guardianship  shall  not  be  granted  by  this  court 
until  proof  be  made  to  its  satisfaction  that  no  dispute  has  arisen 
with  respect  to  the  right  of  guardianship  in  the  office  of  the 
surrogate  of  the  county  where  the  minor  resides,  or  that  such 
notice  of  the  application  to  this  court  for  such  letters  of  guard- 
ianship has  been  given  to  all  persons  concerned  as  is  prescribed 
in  Rule  nineteen.**'^ 
Register  to  Sign  Letters. 

Letters  of  guardianship  shall  be  signed  by  the  register  of  the 
prerogative  court. "^^ 

INQUIRY  FOR  ABSENT  NEXT  OF  KIN. 

Nature  of  Inquiry  for  Absent  Next  of  Kin. 

Wherever  it  shall  appear  by  any  petition  for  letters  of 
administration,  or  guardianship,  that  the  residence  or  post- 
office  address  of  any  next  of  kin  or  other  persons  entitled  to 
notice  of  such  application  shall  not  be  known,  the  applicant,  or 
his  proctor,  shall  make  diligent  and  careful  inquiry  therefor. 
Such  inquiry  shall  be  made  of  the  nearest  relatives  of  the  dece- 
dent, or  minor,  if  known ;  or  if  not  known,  such  inquiry  shall 
be  made  of  any  person  known  to  be  connected  with  the  said 
decedent  or  minor  by  marriage,  or  in  business,  or  of  any  per- 
son who  the  applicant,  or  his  proctor,  making  the  inquiry,  has 
reason  to  believe  possesses  knowledge  of  the  residence  or  post- 
office  address  of  such  absent  next  of  kin  or  person  entitled  tO' 
notice  of  such  application ;  such  inquiries  may  be  made  in  per- 
son, or  by  letter,  and  shall  state  that  application  has  been  made 
for  letters  of  administration  upon  the  estate  of  such  decedent 

■"'^Page  21.  supra.  Court  Rule  21. 

•""'^Prerogative  Court  Rule  20.  "' Prerogative  Court  Rule  22. 

''"See  p.  21.  supra.     Prerogative 


The  Prerogative  Court.  23 

(naming  him),  or  for  letters  of  guardianship  for  such  minor 
(naming  him),  and  that  the  next  of  kin,  or  person  entitled  to 
notice,  whose  residence  is  sought  to  be  obtained,  is  interested  in 
such  application,  and  that  the  object  of  the  inquiry  is  to  give 
him  notice  of  such  application,  that  he  may  appear  and  protect 
his  interests,  and,  in  the  case  of  any  application  for  guardian- 
ship, the  interests  of  said  minor.  When  such  inquiry  is  made 
by  letter,  a  proper  postage  stamp  for  the  return  of  an  answer 
shall  be  enclosed. 

Proof  of  such  inquiry  shall  be  made  by  the  affidavit  of  the 
applicant,  or  his  proctor,  that  such  inquiry  has  been  made  in 
good  faith  and  without  success.^- 

SETTLEMENT    OF   ACCOUNTS. 

Vouchers  to  be  Lodged  With  Register. 

Executors,  administrators,  guardians  and  trustees  who  have 
noticed  their  accounts  for  settlement  in  this  court  shall  lodge 
with  the  register  the  vouchers  and  receipts  for  payments  and 
disbursements  claimed  therein  at  least  twenty  days  previous  to 
the  day  on  which  said  account  is  noticed  for  settlement,  which 
said  vouchers  shall  be  open  to  the  inspection  of  all  interested 
persons.  The  register  shall  not  report  any  account  to  this 
court  for  allowance  and  settlement  unless  the  said  vouchers  and 
receipts  have  been  lodged  with  him  in  compliance  with  this 
rule.*'^ 

Notice  of  Settlement  of  Accounts  to  be  Mailed. 

In  addition  to  the  posting  and  publication  of  notices  of  settle- 
ment of  the  accounts  of  executors,  administrators,  guardians 
and  trustees  prescribed  by  law,  one  month's  notice  of  the 
settlement  of  all  accounts  of  executors,  administrators,  guard- 
ians and  trustees,  together  with  a  statement  as  to  whether 
counsel  fees  and  commissions  will  be  applied  for  by  said  ac- 
countant on  the  allowance  of  said  account  by  the  court,  shall 
be  given  by  said  accountant  to  all  persons  interested  therein, 
which  notice  may  be  sent  by  mail  with  the  postage  thereon 
prepaid.     In  case  any  person  interested  in  ttie  settlement  of 

•^Prerog^ative  Court  Rule  23.  '^Prerogative  Court  Rule  24. 


24  Probate  Law  and  Practice. 

such  account  be  a  minor,  such  notice  shall  be  mailed  to  the 
guardian  of  such  minor  if  any,  if  there  be  no  guardian  then  to 
the  parent  or  other  person  standing  in  loco  parentis  to  said 
minor.  Proof  of  such  mailing  shall  be  filed  in  the  office  of 
the  Register  of  the  Prerogative  Court  before  the  day  on 
which  the  said  account  is  noticed  for  settlement."^* 

Petition  To  Be  Annexed  To  Accounts. 

All  accounts  of  executors,  administrators,  guardians  or  trus- 
tees, shall  have  annexed  thereto  a  petition,  which  shall  be 
addressed  to  the  Ordinary,  and  which  shall  contain  the  names 
and  addresses  of  all  persons  interested  in  said  accounting,  and 
shall  specify  which  if  any  of  such  persons  in  interest  are  mi- 
nors. In  case  any  of  such  persons  in  interest  be  minors  the  said 
petition  shall  give  the  names  and  addresses  of  the  guardians 
of  such  minors  if  any,  or  if  there  be  no  guardian  then  the 
names  and  addresses  of  the  parents  or  other  persons  standing 
in  loco  parentis  to  such  minors,  said  petition  shall  also  contain 
a  summary  of  the  account,  and,  in  the  case  of  a  first  account- 
ing, shall  recite  the  amount  of  the  inventory,  the  amount 
shown  by  the  account  to  have  been  collected  in  addition  thereto, 
the  amount  of  expenditures  and  the  balance  in  the  hands  of 
the  accountant.  In  the  case  of  a  second  or  other  accounting, 
said  petition  shall  recite  the  balance  remaining  in  the 
hands  of  accountant  as  shown  in  his  last  previous  account, 
the  amount  received  during  the  period  covered  by  the  account, 
the  amount  of  disbursements  shown  by  the  account,  and  the 
balance  in  the  hands  of  accountant.  Such  petition  annexed 
to  trustees'  accounts  shall  also  state  the  receipts  and  disburse- 
ments on  account  of  corpus  and  income  separately.  The  peti- 
tion and  account  shall  be  verified  by  the  oath  of  the  accountant, 
and  shall  pray  for  the  allowance  of  said  account,  and  also  for 
the  allowance  of  commissions  and  counsel  fees,  if  accountant 
intends  to  apply  therefor.®^ 

Exceptions  to  be  in  Writing  and  Specific. 

When  exceptions  are  made  to  the  account  of  an  executor, 
administrator,  gifkrdian,  or  trustee,  such  exceptions  shall  be  in 

^♦Prerogative  Court  Rule  25.  ^^Prerogative  Court  Rule  26. 


The  Prerogativk  Court.  25 

writing:  and  where  the  objections  are  to  disbursements,  they 
shall  state  specifically  the  item,  or  items,  and  particulars 
objected  to.  and  the  reasons  therefor.*'*' 

Statement  of  Assets  to  be  Annexed  to  Account. 

In  the  settlement  of  the  accounts  of  executors,  administra- 
tors, guardians,  or  trustees,  the  accountant  shall  annex  to  the 
account  a  full  statement,  or  list,  of  the  securities,  investments 
and  assets  of  which  the  balance  of  the  estate  in  his  hands  con- 
sists, and  a  statement  of  all  changes  made  in  the  securities 
since  the  filing  of  the  inventory  or  since  the  last  settlement.*'^ 

Notice  of  Re-Settlement  of  Accounts. 

In  proceedings  for  the  re-settlement  of  the  account  of  an 
executor,  administrator,  guardian  or  trustee,  at  least  five  days' 
notice  of  the  intended  application  shall  be  given  to  the  executor, 
administrator,  guardian  or  trustee.**^ 

COMMISSIONS. 

Application  for  Commissions  Where  Estate  is  Large. 

Application  for  commissions,  in  all  cases  where  the  sums 
which  shall  come  into  the  hands  of  executors,  administrators 
or  trustees,  shall  exceed  fifty  thousand  dollars,  or  where,  in 
the  case  of  guardians,  such  sums  shall  exceed  twenty  thousand 
dollars,  shall  be  accompanied  by  an  affidavit  stating  fully  the 
pains,  trouble  and  risk  of  such  applicant  in  settling  such 
estate.**^ 

Notice  of  Adjustment  of  Commissions. 

Upon  the  adjustment  of  commissions  between  executors, 
administrators,  guardians  or  trustees,  this  court  shall  not 
determine  the  matter  upon  the  application  of  some  or  one  of 
them  without  proof  that  not  less  than  five  days'  notice  of  such 
application  has  been  given  to  the  other  or  others.^" 

'^Prerogative  Court  Rule  2"].  "^Prerogative  Court  Rule  30. 

"^Prerogative  Court  Rule  28.  '^'^Prerogative  Court  Rule  31. 

"^Prerogative  Court  Rule  29. 


26  Probate  Law  and  Practice. 

INVESTMENT  OF  MONEYS. 

Executors,  Etc.,  To  Report  Failure  To  Invest. 

Executors,  administrators,  guardians  or  trustees,  required  to 
retain  money  in  their  hands  shall  put  it  out  at  interest,  or 
apply  to  this  court  for  an  order  so  to  do ;  and  in  case  they  shall 
not  be  able  to  find  proper  investment  therefor,  they  shall  report 
the  fact  to  the  court  within  sixty  days  after  they  shall  have 
received  it,  or  after  they  shall  be  required  to  retain  it  or  to 
invest  it;  and  in  case  of  their  neglect  so  to  do,  they  shall  be 
accountable  for  interest  thereon.'^ 

DISTRIBUTION. 

Proof  of  Next  of  Kin  on  Distribution. 

The  ordinary,  before  decreeing  the  distribution  of  the  estate 
of  any  person  dying  intestate,  shall  require  proof  in  writing, 
under  oath,  of  the  names  of  the  wife  and  children,  if  any,  or 
other  next  of  kin  of  the  intestate,  and  how  and  in  what  degree 
such  other  next  of  kin  are  related ;  which  proof  may  be  made 
by  affidavit  of  the  administrator,  or  of  any  one  having  knowl- 
edge of  the  family  and  next  of  kin  of  the  deceased,  unless  the 
court  shall  require  further  or  other,  proof.'" 

Distribution  in  Case  of  a  Will. 

All  applications  by  executors,  substitutionary  administrators 
with  the  will  annexed,  or  administrators  with  the  will  annexed, 
for  a  decree  of  distribution,  shall  be  by  verified  petition 
addressed  to  the  ordinary,  which  petition  shall  recite  the  grant 
of  letters  to  petitioner,  the  names  and  addresses  of  all  persons 
interested,  the  allowance  of  petitioner's  account  by  this  court 
and  the  balance  in  petitioner's  hands  for  distribution,  and  shall 
pray  for  any  order  of  distribution  in  accordance  with  the  terms 
of  the  will,  a  copy  whereof  shall  be  annexed  to  the  said  peti- 
tion.''^    ■ 

Notice  of  Application. 

Five  days'  notice  of  any  application  for  distribution,  under 
the  provisions  of  Rule  thirty-four'*  shall  be  given  by  such 

^^Prerogative  Court  Rule  32.  "Prerogative  Court  Rule  34. 

T2Prerogative  Court  Rule  33.  '^See  this  page,   supra. 


The  Prerogative  Court. 


^/ 


•executor,  substituted  administrator  with  the  will  annexed,  or 
administrator  with  the  will  annexed,  to  all  persons  interested 
therein,  who  are  residents  of  the  State  of  New  Jersey,  and  not 
less  than  five,  nor  more  than  sixty,  days'  notice,  as  the  court 
may  by  order  direct,  to  all  persons  interested  therein  who 
reside  without  the  State  of  New  Jersey,  which  last  mentioned 
notice  may  be  sent  by  mail  with  the  postage  thereon  prepaid."'^ 

DISCHARGE       OF       EXECUTORS,       ADMINISTRATORS, 
GUARDIANS    AND    TRUSTEES. 

Notice  of  Application. 

An  executor  or  administrator  seeking  to  be  discharged  from 
the  further  duties  of  his  office  shall  give  to  all  the  parties  inter- 
ested in  the  estate  of  which  he  is  executor  or  administrator,  or 
to  such  of  them  as  the  court  shall  direct,  at  least  thirty  days' 
notice,  in  writing,  of  his  intended  application  to  the  court  for 
such  discharge,  unless  the  court,  for  good  cause  appearing, 
shall  otherwise  order ;  and  where  any  of  the  said  parties  shall 
reside  outside  of  this  state,  such  notice  may  be  given  by  mail- 
ing the  same  to  their  post-office  addresses. 

Guardians  seeking  to  be  discharged  from  their  trust  shall 
give  like  notice  in  like  manner  to  their  wards,  to  the  nearest  of 
kin  of  their  wards,  to  any  persons  standing  in  loco  parentis  to 
their  wards  and  to  the  persons  with  whom  their  wards  may 
reside,  or  such  of  them  as  the  court  shall  direct;  and  trus- 
tees seeking  to  be  discharged  from  their  trust  shall  give  like 
notice  in  like  manner  to  their  cestui  que  trust  or  cestuis  que 
trustent.  If  a  cestui  que  trust  be  a  minor,  or  non  compos  men- 
tis, notice  shall  be  given  to  his,  or  her,  guardian,  if  any,  and,  if 
none,  to  the  nearest  of  kin,  to  any  persons  standing  in  loco 
parentis  to  such  minor  or  lunatic  and  to  the  persons  with 
whom  such  minor  or  lunatic  resides,  or  to  such  of  them  as  the 
court  shall  direct.^" 

SALE   OF   INCHOATE    RIGHT    OF    DOWER   OF    PERSON 
UNDER   DISABILITY. 

Jurisdiction  of  Court. 

Whenever  it  shall  appear  to  the  satisfaction  of  the  ordinary 
of  the  prerogative  court  that  any  person  entitled  to  an  inchoate 

"Prerogative  Court  Rule  ^S■  ■'"Prerogative  Court  Rule  36. 


28  Probate  Law  and  Practice. 

right  of  dower  in  any  lands,  tenements  or  hereditaments  is 
incapacitated,  by  mental  infirmity  or  disease,  from  executing 
a  valid  conveyance,  or  release,  of  the  same,  and  that  the  inter- 
ests of  both  such  persons  and  the  owner  of  such  lands,  tene- 
ments and  hereditaments  will  be  promoted  by  a  conveyance  or 
mortgage  of  the  same,  it  shall  be  lawful  for  the  ordinary  of 
the  prerogative  court  to  direct  such  conveyance  or  release,  to 
be  made  by  any  master  of  the  court  of  chancery,  whose  deed, 
or  release  executed  jn  behalf  of  such  person  shall  convey, 
release  and  bar  all  the  dower,  or  right,  or  estate  in  dower,  to 
which  such  person  may  have,  or  would  at  any  time  succeed 
or  become  entitled  to  in  such  lands,  tenements  and  heredita- 
ments.^^ 

Practice  on  Application  for   Sale  of  Inchoate   Right  of 
Dower. 

Upon  a  petition  filed  for  a  conveyance,  or  mortgage,  as 
aforesaid,  the  ordinary  of  the  prerogative  court  may,  in  a  sum- 
mary manner,  proceed  to  inquire  into  the  merits  of  the  applica- 
tion by  reference  to  a  master  or  otherwise,  and  in  case  a  con- 
veyance or  mortgage  is  allowed  and  ordered  by  him,  shall 
require  a  bond  to  be  given  by  the  owner  of  such  lands,  tene- 
ments and  hereditaments  to  the  ordinary  of  the  prerogative 
court  or  to  the  guardian  of  such  person  in  such  penalty  and 
with  such  surety  as  he  may  direct,  to  secure  to  the  guardian  of 
such  person  so  entitled  to  such  inchoate  right  of  dower,  the 
enjoyment  during  her  life  after  such  dower  has  become  fixed 
and  assigned,  a  fund  equal  to  one-third  of  the  value  of  such 
lands,  tenements  and  hereditaments ;  or  in  lieu  of  said  bond, 
if  the  petition  so  request,  the  ordinary  of  the  prerogative  court 
shall  cause  an  appraisement  of  said  land  and  premises  to  be 
made,  and  a  gross  sum  paid  or  secured  to  the  guardian  of  such 
incompetent  in  consideration  of  the  release  and  relinquishment 
of  her  inchoate  right  of  dower  in  the  said  lands,  tenements  and 
hereditaments ;  and  the  prerogative  court  shall  have  full  power 
over  such  admeasurement  and  make  all  orders  and  decrees  rel- 
ative to  the  same  as  may  be  necessary  to  give  complete  relief  to 
the  parties,  their  heirs,  devisees  and  assigns.''^ 

T^P.  L.   1912,  p.  537,  sec.   I.  ^^^P.  L.   1912,  p.  537,  sec.  2, 


The  Prerogative  Court.  29 

Division  of  Real  Estate. 

The  prerogative  court  has  jurisdiction  to  make  division  of 
real  estate,  under  certain  circumstances.^® 

NOTICES. 

Five  Day's  Service  of  Rules,  Notices,  Etc. 

There  shall  be  at  least  five  days'  service  of  all  notices  and 
rules  to  show  cause  and  process,  except  where  otherwise  pro- 
vided.^'' 

Notices  of  Motions. 

Notices  of  motions  shall  designate  the  place  of  hearing  either 

as  "the  chancery  chambers  at "  (naming  a  place 

other  than  Trenton),  or  the  "State  House  at  Trenton,"  accord- 
ing to  where  the  motions  shall  be  intended  to  be  made,  and 
they  shall  also  state  that  the  motion  will  be  made  before  "the 
ordinary,"  unless  the  case  shall  theretofore  have  been  specially 
referred  to  a  vice  ordinary,  in  which  case  the  notice  shall  state 
that  the  motion  will  be  made  before  the  vice  ordinary  to  whom 
such  reference  shall  have  been  made.^^ 

AFFIDAVITS  AND  DEPOSITIONS. 

Before  Whom  Affidavits  and  Depositions  May  Be  Taken. 

The  register  of  this  court,  the  surrogate  of  each  county  and 
the  masters  of  the  court  of  chancery  shall  have  full  power  and 
authority  to  take  affidavits  and  depositions  to  be  used  in  this 
court ;  and  every  affidavit  and  deposition  which  shall  be  made 
or  taken,  before  the  register,  or  before  the  surrogate  of  any 
county  in  this  state  or  a  master  of  the  court  of  chancery,  shall 
and  is  hereby  declared  to  be  as  good  and  effectual,  to  all  intents 
and  purposes,  as  if  the  same  were  made  or  taken,  before  the 
ordinary  himself.^^ 

'"See  3  Comp.   Stat.,  3901,  sec.  ^o Prerogative  Court  Rule  37. 

9.      See    also    Prerogative    Court  «i Prerogative  Court  Rule  38. 

Rules  47  to  51.  ^-Prerogative  Court  Rule  52. 


30  Probate  Law  and  Practice. 

Proctors  or  Counsel  Not  to  Take  Affidavits. 

No  proctor,  or  counsellor  shall  take  any  affidavit  for  use  in 
any  proceeding  in  this  court  in  which  proceeding  he,  or  any 
firm  of  which  he  is  a  member,  appears  as  proctor  or  counsel  of 
record.^^ 

APPOINTMENT  OF  GUARDIANS  AD  LITEM. 

Practice  on  Application  on  Behalf  of  Infant. 

Whenever  it  shall  be  necessary,  in  any  cause  or  proceeding, 
in  this  court,  that  a  guardian  ad  litem  for  any  infant  or  in- 
competent party  thereto  should  be  appointed,  a  petition  may  be 
presented,  by  the  infant  if  above  the  age  of  fourteen  years,  or, 
if  under  that  age,  by  his  guardian  appointed  by  the  surrogate  or 
orphans'  court,  his  father,  or  some  other  friend,  in  his  behalf, 
praying  such  appointment.  In  the  case  of  an  incompetent 
party  the  petition  shall  be  by  his  guardian  appointed  by  the 
Orphans'  Court  or  some  next  friend  in  his  behalf.  Annexed  to 
the  petition  shall  be  an  agreement,  by  the  person  petitioned 
for  as  guardian,  to  accept  the  appointment,  and  also  an  affi- 
davit that  the  petition  and  agreement  were  duly  signed  by  the 
persons  purporting  to  sign  them,  and  verifying  the  age  of 
the  infant.^* 

Where  No  Application  Is  Made  on  Behalf  of  Infant. 

If  no  application  shall  be  made  by  or  on  behalf  of  the  infant 
or  incompetent  party  within  five  days  after  the  service  upon 
him  of  the  citation,  or  other  authoritative  command  of  the  court 
to  appear,  etc.,  this  court  may,  on  application  on  behalf  of  the 
party  instituting  or  prosecuting  the  proceedings,  by  its  order, 
assign  a  guardian  ad  litem  for  said  infant  or  incompetent  party ; 
but  ten  days'  notice  of  such  application  must  be  given  to  the 
infant,  if  of  the  age  of  fourteen  years  and  resident  within 
this  state,  or,  if  under  that  age,  or  not  a  resident  in  this  state, 
to  his  guardian  appointed  by  the  surrogate  or  orphans'  court, 
if  any  there  be,  and,  if  no  such  guardian,  to  the  father  of  such 
infant,  or,  if  no  father,  then  to  the  mother,  or,  if  no  mother, 
to  the  person  standing  in  loco  parentis  to  the  infant;    pro- 

ssprerogative  Court  Rule  53.  8*Prerogative  Court  Rule  54. 


The  Prerogative  Court.  31 

vided  such  guardian,  father  or  mother,  etc.,  be  resident  in  this 
state,  which  notice  may  be  served  at  the  time  of  service  of  the 
process  of  citation  or  at  any  time  thereafter.  If  such  guardian, 
father  or  mother,  etc.,  be  not  resident  in  this  state,  such  notice 
shall  be  given  as  the  court  may  by  order  direct.  In  the 
case  of  an  incompetent  person,  ten  days'  notice  of  such 
application  shall  be  served  upon  him  and  also  upon  his  guard- 
ian appointed  by  the  Orphans'  Court,  if  any  there  be,  and  if  no 
such  guardian,  then  upon  such  persons  as  the  court  may  by 
order  direct.®^ 

APPEALS. 

Appeal   From   Prerogative   Court. 

All  persons  aggrieved  by  any  order  or  decree  of  the  prerog- 
ative court,  may  appeal  from  the  same,  or  any  part  thereof,  to 
the  court  of  errors  and  appeals  in  the  last  resort  in  all  causes, 
which  appeal  shall  be  taken  within  the  same  time  and  prose- 
cuted in  the  same  manner  in  all  respects  as  now  provided  by 
law  for  appeals  from  the  court  of  chancery.**^ 

^^Prerogative  Court  Rule  55.  subject  will  be   found   fully  con- 

s*^P.  L.  1900,  p.  347,  sec.  9.  2  sidered  elsewhere.  See  "Appeals," 
Comp.  Stat.,  p.  1724,  sec.  84.    This       p.  74,  infra. 


CHAPTER  II. 

THE  ORPHANS'  COURT,  ITS  CONSTITUTION  AND 
JURISDICTION. 

Historical. 

The  first  mention  of  an  Orphans'  Court  in  this  State  is  the 
act  of  the  i6th  of  December,  1784.^  The  name  and  idea  of  the 
Orphans'  Court  were  borrowed,  not  from  the  English  Ecclesi- 
astical Courts,  but  from  a  court  called  the  Court  of  Orphans, 
for  a  long  time  established  in  London  and  some  of  the  other 
large  cities  in  England,  and  which,  as  its  name  imports,  had 
jurisdiction  over  the  estates  and  persons  of  orphans  only.  So 
far  as  regarded  decedents'  estates,  generally,  the  act  gave  the 
Orphans'  Court  the  same  jurisdiction  as  the  Prerogative  Court, 
borrowing  from  the  English  Ecclesiastical  Courts,  had  over 
executors  and  administrators ;  and  so  far  as  orphans  were  con- 
cerned, it  gave  the  Orphans'  Court  the  same  jurisdiction  the 
Ordinary  had,  and  which,  so  far  as  the  Orphans'  Court  was 
concerned,  was  borrowed  from  the  Court  of  Orphans  of  the 
City  of  London.^"  The  jurisdiction  thus  conferred  has  been 
greatly  extended  by  subsequent  legislation. 

Judges  Comprising  Court. 

The  statute  provides  that  there  shall  be  in  each  county  in 
this  state  a  court  of  record,  to  be  called  the  orphans'  court, 
which  court  shall  be  composed  of  the  justice  of  the  supreme 
court,  authorized  to  hold  the  circuit  court  in  the  county,  and 
the  judge  of  the  court  of  common  pleas  in  the  county,  or  either 
one  of  them.- 

When  Judge  From  Other  County  May  Preside. 

The  judge  of  the  court  of  common  pleas  in  and  for  any 
county  may,  at  the  request  of  the  judge  of  said  court  in  and  for 

iPat.  Laws,  135.  -Orphans'  Court  Act,  sec.  i.    3 

laGraham  v.  Houghtalin,  30  N.       Comp.  Stat.,  3813. 
J.  L.,  552-561. 


The  Orphans'  Court.  33 

any  other  county,  preside  during  the  absence  or  sickness  or 
other  inabiUty  of  the  judge  making  such  request,  or  to  assist 
such  judge  in  disposing  of  the  accumulated  business  of  said 
court,  in  the  courts  or  in  any  of  them  for  which  the  judge 
making  such  request  was  specially  appointed. 

When  such  judge  shall  be  so  requested  to  sit  for  the  purpose 
of  assisting  the  judge  making  such  request  in  disposing  of  the 
accumulated  business  of  said  courts,  both  of  said  judges  may 
sit  separately,  at  one  and  the  same  time,  for  the  purposes  of 
trying  issues  in  said  courts  and  of  hearing  and  determining 
such  other  matters  as  said  court  of  common  pleas,  or  any 
judge  thereof,  may  be  empowered  by  law  to  hear,  try  and 
determine.*' 

Request.     How  Made. 

The  request  mentioned  in  the  preceding  section  shall  be  in 
writing;  and  the  judge  to  whom  such  request  shall  have  been 
made,  before  presiding  in  the  courts  of  any  county  other  than 
that  for  which  he  was  specially  appointed,  shall  file  such  re- 
quest in  the  office  of  the  clerk  of  the  county  in  which  he  shall 
have  been  so  requested  to  preside. 

When  such  judge  shall  be  so  requested  to  sit  for  the  purpose 
of  assisting  the  judge  making  such  request  in  disposing  of  the 
accumulated  business  of  said  courts,  the  judge  so  requested 
shall  while  so  sitting,  in  addition  to  his  regular  salary,  be  en- 
titled to  the  sum  of  twenty  dollars  per  day,  which  shall  be 
paid  by  the  county  in  which  he  shall  be  so  requested  to  sit,  upon 
the  certificate  of  the  judge  making  such  request.^ 

Validity  of  Acts  of  Substitute  Judge. 

When  the  judge  of  the  court  of  common  pleas  in  and  for 
any  county  shall  so  preside  in  any  other  county,  all  proceed- 
ings and  acts  had  and  done  before  him,  and  in  the  courts  in 
which  he  shall  so  preside,  shall  be  of  the  same  validity,  force 
and  effect  as  though  the  judge  who  made  such  request  were 
himself  present  and  presiding.^ 


3  P. 

L.  1907,  p.  n. 

2    Comp. 

Stat.,   1726.  sec.  98. 

Stat., 

1726,  sec.  97. 

■"•P.   L.    1900,   p.  m,  sec.  9, 

*P. 

L.    1907,    p.    78. 
4 

2    Comp. 

Comp.   Stat.,    1727,   sec.  99. 

34  Probate  Law  and  Practice. 

Absence,  Sickness,  etc. ;   Who  May  Hold  Court. 

In  case  of  the  absence,  sickness  or  other  disabiHty  of  the 
judge  of  the  court  of  common  pleas  in  and  for  any  county,  the 
chief  justice,  or  any  associate  justice  of  the  supreme  court, 
if  he  shall  be  unable  to  perform  the  duties  himself,  which  he  is 
hereby  authorized  to  do,  may  designate  and  request  the  judge 
of  the  court  of  common  pleas  of  any  other  county  to  perform 
the  duties  of  such  office,  and  the  judge  so  designated  shall 
have  all  the  powers  and  perform  all  the  duties  of  the  judge 
in  whose  place  he  shall  be  designated  and  requested  to  preside, 
upon  filing  such  designation  and  request  in  the  office  of  the 
clerk  of  the  county  in  which  he  shall  have  been  so  requested 
to  preside ;  and  in  case  of  a  vacancy  in  the  office  of  judge  of 
the  court  of  common  pleas  in  and  for  any  county,  the  judge  of 
the  court  of  common  pleas  of  any  other  county  may  be  in 
like  manner  designated  and  requested  to  perform  the  duties 
of  such  office  during  the  continuation  of  such  vacancy  or  for 
any  less  time,  and  upon  filing  such  designation  and  request  as 
aforesaid  the  judge  so  designated  shall  have  the  same  powers 
and  perform  the  same  duties,  for  the  time  being,  as  a  regu- 
larly appointed  judge  of  said  court. ^^ 

Additional  Judges  in  Certain  Counties. 

In  any  county  now  or  hereafter  having  by  any  state  or 
federal  census,  four  hundred  thousand  or  more  inhabitants, 
the  governor  is  authorized  whenever  in  his  judgment  the  public 
interest  shall  so  require,  to  appoint  by  and  with  the  advice 
and  consent  of  the  senate,  an  additional  judge  of  the  court  of 
common  pleas,  who  shall  serve  for  the  same  term  and  receive 
the  same  salary  as  is  now  provided  by  law  for  the  judge  of  said 
court  in  the  county  in  and  for  which  he  is  so  appointed.^^ 

Judges  May  Sit  Together  or  Separately;    Powers,  Juris- 
diction, Etc. ;  Presiding  Judge. 

Whenever  there  shall  be  two  judges  of  the  court  of  common 
pleas  in  any  county,  said  judges  sitting  together,  or  either  of 
them  sitting  alone,  or  each  of  them  sitting  separately  at  the  same 
time  shall  constitute  and  may  hold  the  court  of  common  pleas, 

sap.  L.   1900,  p.  334.     2  Comp.  ''bP.   L.    1908,   p.   33.     2   Comp. 

Stat.,  p.  1727,  sec.  100.  Stat.,  p.  1730,  sec.  109. 


The  Orphans'  Court.  35 

the  orphans'  court,  the  court  of  quarter  sessions,  the  court  of 
special  sessions  and  the  court  for  the  trial  of  juvenile  offenders  ; 
and  said  judges  when  sitting  together,  or  either  of  them  when 
sitting  alone,  or  each  of  them  when  sitting  separately  at  the 
same  time  shall  have  and  possess  the  same  powers,  authority 
and  jurisdiction  as  is  now  vested  in  the  existing  judge  of  said 
courts;  each  of  said  judges  shall  have  the  same  power  to  hold 
the  court  of  oyer  and  terminer  and  circuit  court  as  is  now 
conferred  by  statute  on  the  existing  judge  of  the  court  of 
common  pleas ;  whenever  the  said  judges  shall  sit  together,  the 
senior  judge  in  service  shall  be  the  president  judge  of  said 
court;  and  any  power  or  authority  now  conferred  by  statute 
on  the  judge  of  the  court  of  common  pleas  in  any  proceeding 
or  matter,  may  be  exercised  by  either  of  said  judges. ^*^ 

Laws  Applicable. 

AH  existing  statutes  relating  to  the  court  of  common  pleas, 
the  orphans'  court,  court  of  quarter  sessions  and  court  for  the 
trial  of  juvenile  offenders  shall  apply  to  each  of  said  courts 
when  so  held  at  the  same  time  by  said  judges  sitting  separately, 
and  the  duties  of  the  clerk,  the  sheriff,  constables  and  other 
ofificers  shall  be  the  same  in  each  of  said  courts  so  held  at  the 
same  time  as  now  provided  by  law  in  the  existing  courts, 
when  held  by  the  existing  judge  of  the  court  of  common 
pleas. ^'^ 

Provision  for  Signing  Judgments  in  Case  of  Death  or  Expi- 
ration of  Term  of  Judge. 

If  the  judge  of  any  court  of  common  pleas,  by  whom  any 
judgment  or  order  has  been  or  shall  be  rendered,  made  or  pro- 
nounced, or  by  whom  any  matter  or  cause  has  been  or  shall  be 
heard  and  determined,  or  before  whom  any  proceeding  or  pro- 
ceedings have  been  or  shall  be  taken  and  determined,  has  died 
or  shall  die,  or  has  gone  out  of  office  or  shall  go  out  of  office, 
and  some  other  person  has  been  or  shall  be  appointed  judge, 
before  the  judgment  or  order  therein  has  been  or  shall  have 
been  signed,  it  shall  be  the  duty  of  his  successor  in  office,  or  the 

Sep.  L.  1908,  p.  33.  2  Comp.  -""'P.  L.  1908,  p.  34.  2  Comp. 
Stat.,  p.  1730,  sec.  no.  Stat.,  p.  1730,  sec.  iii. 


36  Probate  Law  and  Practice. 

judge  for  the  time  being,  to  sign  such  judgment  or  order,  and 
all  judgments  and  orders  so  signed  shall  be  as  good  and  effect- 
ual in  law,  to  all  intents  and  purposes,  as  if  the  same  had  been 
duly  signed  by  the  Judge  of  the  said  court,  when  such  judg- 
ment or  order  was  rendered,  made  or  pronounced.*^ 

Where  Judge  May  Practice. 

The  judges  of  the  court  of  common  pleas  may  practice  as 
attorneys  or  counsellors  at  law  in  any  of  the  courts  of  this  state, 
except  in  the  courts  of  common  pleas,  or  any  courts  of  inferior 
jurisdiction  thereto  of  the  county  in  and  for  which  they  are 
judges;  proznded,  liozvcver,  that  no  judge  of  the  court  of 
common  pleas  in  and  for  any  county  shall  personally  appear 
as  such  attorney  or  counsellor  at  law  in  the  trial  of  any  cause 
before  a  jury  in  any  of  the  courts  of  the  county  in  and  for 
which  he  is  such  judge.' 

Officers  of  Court. 

The  surrogate  of  the  county  is  clerk  of  the  orphans'  court;  * 
and  the  statute  provides  that  neither  the  surrogate  of  any 
county,  nor  any  person  employed  by  him  in  connection  with  the 
duties  of  his  office  shall  be  allowed  to  act  as  an  attorney,  proc- 
tor or  counsel  in  the  orphans'  court  of  that  county,  or  to  sit  as 
a  judge  of  that  court.^ 

Masters  in  Chancery  as  Officers  of  Court. 

The  masters  and  examiners  of  the  court  of  chancery  shall 
be  ex-officio  masters  and  examiners  of  the  orphans'  court  of 
this  state.^° 

Reference  of  Exceptions  to  Account. 

The  statute  provides  that  the  orphans'  court  shall  have  power 
to  refer  exceptions  to  accounts  to  the  surrogate,  auditors  or  a 
master  in  chancery  to  examine  and  re-state  the  account,  after 
hearing  parties  and  witnesses  and  make  report  to  the  court  for 

^See  P.  L.  1900,  p.  334,  sec.  11.  2          '^Orphans'    Court   Act,   sec.   8.  3 

Comp.  Stat.,  1727,  sec.  loi.  Comp.  Stat.,  p.  3815.  sec.  8. 

^2  Comp.  Stat.,  1730,  sec.  108.  ^''Orphans'  Court  Act,  sec.  9,  as 

^Orphans'  Court  Act.  sec  7.  3       amended  by  P.  L.  1907.  p.  293.    3 

Comp.  Stat.,  p.  3815,  sec.  7.  Comp.  Stat.,  3815. 


The  Orphans'  Court.  37 

confirmation  and  allowance  and  the  surrogate,  auditors  or  mas- 
ter to  whom  an  account  is  referred  as  aforesaid,  at  the  instance 
of  any  party  interested  in  the  same,  or  by  their  own  proper 
authority,  may  examine  any  executor,  administrator,  guardian 
or  trustee,  exhibiting  such  account,  on  oath  or  affirmation, 
touching  the  truth  and  fairness  of  the  same  or  any  part  or  item 
thereof.'^ 

Reference  to  Advisory  Master. 

The  orphans'  court  may  refer  to  any  master  in  chancery,  who 
shall  be  an  attorney-at-law  of  at  least  five  years'  standing,  any 
cause  or  other  matter  which  may  at  any  time  be  pending  in 
such  court,  to  hear  the  same  for  the  orphans'  court  and  report 
thereon  to  it,  and  advise  what  order  or  decree,  should  be  made 
therein. ^- 

Taking  Testimony  Before  Advisory  Master;  Stenographer. 

When  any  cause  or  matter  shall  be  so  referred  to  a  master, 
it  shall  be  lawful  for  him  to  take  and  hear  the  evidence  of  any 
or  all  witnesses  in  said  cause  or  matter,  orally  in  the  same 
manner  as  the  evidence  is  now  taken  and  heard  in  courts  of 
law  in  this  state  on  trials  before  a  jury.  And  it  shall  be  lawful 
for  such  master,  when  any  cause  or  matter  is  so  referred  to 
him,  to  employ  a  competent  stenographic  reporter  to  take  down 
the  evidence  of  such  witnesses  as  may  be  examined  before  him 
for  the  use  of  the  court  and  parties  in  such  cause  or  matter.'^ 

Appointment  and  Compensation  of  Advisory  Masters  and 
Stenographers. 

The  orphans'  court  may,  by  rule  of  court,  fix  and  determine 
to  what  masters  the  references  provided  for  by  this  act  shall  be 
made,  and  such  masters  may  be  removed  and  changed  at  the 
pleasure  of  the  court.  The  orphans'  court  shall  fix  the  com- 
pensation to  be  paid  to  such  masters  and  stenographers  for 
their  services,  which  said  compensation  shall  be  paid  by  the 
county  collector  on  the  certificate  of  the  said  orphans'  court.'* 

"Orphans'  Court  Act,  sec.  126.  '■"'P.  L.   1907.  P-  293.      3  Comp. 

3  Comp.  Stat.,  3857.  vStat.,   3816,   sec.  9b. 

'2P.  L.   1907,  p.  293.     3   Comp.  '^P.  L.   1907.  P-    293.     3  Comp. 

Stat.,  3815,  sec.  9a.  Stat.,  3816,  sec.  9c. 


38  Probate  Law  and  Practice. 

Terms  of  Court. 

The  statute  provides  that  the  orphans'  court  shall  hold 
annually  in  each  county  three  stated  terms,  at  the  times  and 
places  prescribed  by  law  for  holding  the  circuit  court  in  such 
county,  and  also  such  special  terms  as  the  court  may  from  time 
to  time  appoint,  or  as  may  be  convened  pursuant  to.  law ;  all 
special  terms,  except  where  otherwise  specially  authorized 
by  law,  shall  be  appointed  by  the  court  at  a  regular  term,  and 
shall  be  held  at  the  place  in  the  county  where  the  court  holds 
its  regular  terms. ^^ 
Business  Continued  in  Case  Term  Not  Held. 

If  it  shall  happen  that  an  orphans'  court  shall  not  be  held  at 
the  regular  term  of  said  court,  by  reason  of  non-attendance  of 
a  judge,  the  business  and  proceedings  pending  in  said  court  and 
process  returnable  thereto  shall  be  continued  from  time  to  time 
until  a  regular  court  shall  be  held.^'' 

Time  for  Holding  Term. 

The  statute  provides  that  the  supreme  court  may,  from  time 
to  time,  fix  and  change  the  times  for  holding  the  stated  terms 
of  the  supreme  court,  the  several  circuit  courts,  courts  of  oyer 
and  terminer,  courts  of  common  pleas,  courts  of  quarter  ses- 
sions and  orphans'  court ;  promdcd,  at  least  three  such  terms  of 
each  court  shall  be  held  annually.^' 

Change  of  Time. 

No  change  in  the  time  for  holding  said  courts  shall  become 
operative  until  the  order  therefor  shall  have  been  entered  upon 
the  minutes  of  the  supreme  court,  and  publicly  announced  in 
the  court  whose  terms  are  to  be  changed,  at  a  regular  term, 
prior  to  the  change  going  into  effect.^^ 

When  Court  is  Open. 

The  orphans'  court  is  open  at  all  times,  except  on  Sundays, 
for  the  issuing  of  citations  and  the  return  of  process.^^ 

i^Orphans' Court  Act,  sec.  10.    3  Comp.  Stat.,   1711,  sec.  21. 

Comp.   Stat..  3816.  i^P.  L.   1900,  p.  349,  sec.  3-     2 

i«Orphans'  Court  Act,  sec.  12.  3  Comp.  Stat.,  171 1,  sec.  22. 

Comp.    Stat.,    3816.  i^Orphans'  Court  Act,  sec.  11.  3 

i^P.  L.   1900.  p.  349,  sec.  2.     2  Comp.    Stat.,   3816. 


The  Orphans'  Court.  39 

Adjournments. 

It  shall  be  lawful  for  the  orphans'  court  in  any  county  to 
adjourn  over  from  any  day  in  term  to  any  subsequent  day  in 
the  same  term,  whenever  the  convenience  of  the  public  and  of 
the  said  court  shall  require  such  adjournment ;  and  in  case  of 
such  adjournment  all  suits,  process,  orders,  rules,  recognizances 
and  other  proceedings  pending  in  such  court,  shall  be  continued 
to  the  time  to  which  such  adjournment  shall  be  made,  without 
prejudice  to  any  of  the  parties  therein,  and  may  then  be  pro- 
ceeded in  according  to  law,  in  the  same  manner  as  if  said  court 
had  been  adjourned  from  day  to  day.-° 

PROCESS. 

Issue  and  Service  of  Process. 

Process  for  the  appearance  of  any  person  before  the  orphans' 
court  or  to  compel  any  executor,  administrator,  guardian  or 
trustee  to  perform  any  duty  required  by  this  act,  may  be  by 
citation  issued  by  the  surrogate  under  the  seal  of  his  office, 
which,  unless  otherwise  specially  provided,  shall  be  served  ten 
days  before  the  day  whereon  it  shall  be  returnable,  in  the  same 
manner  as  writs  of  summons  are  required  to  be  served  by  the 
act  entitled,"An  act  to  regulate  the  practice  of  courts  of  law."-* 

When   Rule   To   Show   Cause    May   Be   Used   Instead   of 
Citation. 

In  any  proceedings  against  executors,  administrators,  guard- 
ians or  trustees,  by  virtue  of  this  act,  after  grant  of  letters 
testamentary,  of  administration  or  guardianship,  the  court 
may  proceed  by  a  rule  to  show  cause,  a  copy  of  which  shall  be 
served  upon  the  person  or  persons  therein  named,  in  such  man- 
ner as  the  court  may  direct ;  and  upon  such  service,  duly  veri- 
fied by  affidavit,  the  court  may  proceed  therein  the  same  as  if 
such  person  or  persons  had  been  summoned  by  citation. -'- 

2"P.  L.   1901,  p.  243,  section   i.      3  Comp.  Stat.,  3878. 
3   Comp.   Stat.,  3879,   sec.   179a.  220rphans'  Court  Act,  sec.   170. 

21  Orphans'  Court  Act,  sec.  174.       3    Comp.    Stat.,   3879. 


40  Probatk  Law  and  Practice. 

Service  of  Rule  to  Show  Cause  and  Notices. 

There  shall  be  at  least  five  days'  service  of  all  notices  and 
rules  to  show  cause  and  process,  except  where  otherwise  pro- 
vided or  where  the  court  otherwise  directs.-" 

Process  May  Be  Issued  Into  Any  County:     Service. 

Citations  issued  out  of  the  orphans'  court  and  process  of 
attachment  to  compel  obedience  to  any  citation  or  the  perform- 
ance of  any  order  or  decree  of  the  court  may  be  issued  into 
any  county  of  this  state,  and  shall  be  served  by  the  sheriff,  or 
other  proper  officer  of  such  county ;  and  the  said  sheriff  or 
other  officer  is  hereby  authorized  and  empowered  to  serve  and 
execute  such  citations  or  process  ;  and  the  court  may  enforce 
obedience  to  all  such  citations  and  process  in  the  same  manner 
as  if  the  same  had  been  served  within  the  county  where  such 
citation  or  process  is  issued.-* 

By  Whom  Process  Served. 

The  sheriff  and  constables  of  the  county  shall  be  officers  of 
the  orphans'  court  of  such  county,  and  shall  serve  all  process 
and  orders  of  the  court  directed  to  them  or  any  of  them,  to  be 
served  within  such  county.-' 

Service  of  Process  in  Foreign  State. 

When  any  person  against  whom  any  citation  or  other  process 
for  appearance  in  any  suit,  matter  or  proceeding  in  the  pre- 
rogative court  or  any  of  the  orphans'  courts  of  this  state  shall 
issue,  resides  out  of  the  state,  service  thereof  may  be  made  by 
any  person  whom  the  ordinary  or  surrogate,  under  his  hand, 
shall  appoint,  either  personally  or  by  leaving  a  copy  of  the 
same  at  his  usual  place  of  abode,  with  some  person  of  the  age 
of  fourteen  years  or  upwards,  thirty  days  before  the  return  of 
such  citation,  or  process ;  and  the  person  serving  such  citation 
shall  make  and  file  an  affidavit  setting  forth  the  time,  place  and 

230rphans'  Court  Rule  39-  ^oQrphans'  Court  Act,  sec.  175. 

240rphans'  Court  Act,  sec.  176.       3    Comp.    Stat.   3878. 
3  Comp.  Stat.,  3878. 


The  Orphans'  Court.  41 

manner  of  such  service,  whereupon  the  same  shall  have  the 
force  and  eft'ect  of  a  service  by  the  proper  officer  within  this 
state. -^ 

Service  of  Non-Resident  by  Publication. 

When  it  shall  appear  to  the  satisfaction  of  the  prerogative 
court  or  any  orphans'  court  that  the  person  against  whom  a 
citation  or  other  process  has  been  issued  resides  out  of  this 
state,  or  cannot  be  found  therein  to  be  served  therewith,  the 
said  court  may  by  order  direct  such  absent  defendant  to  appear 
in  such  suit,  matter  or  proceeding  at  a  certain  time  not  less 
than  thirty  days  from  the  date  of  said  order,  or  that  such  pro- 
ceeding will  be  had  against  the  said  absent  defendant  as  if  he 
had  appeared  in  said  suit  or  proceeding;  and  notice  of  such 
order  shall  be  served  and  published  in  the  same  manner  as  like 
notices  are  required  to  be  served  and  published  in  proceedings 
against  absent  defendants  in  the  court  of  chancery ;  and  if  such 
absent  defendant  shall  not  appear  and  cause  his  appearance  to 
be  entered  in  said  court  at  or  before  the  time  mentioned  in  such 
order,  he  shall  be  proceeded  against  in  the  same  manner  as  if  he 
had  appeared,  and  the  determination  of  any  of  said  courts, 
upon  proofs  that  such  person  against  whom  process  shall  be 
issued  resides  out  of  the  state,  or  cannot  be  found  therein,  or 
that  he  has  been  served  with  a  copy  of  such  process,  or  that  the 
notice  of  the  order  to  appear  has  been  served  or  published  as 
required  by  law,  shall  be  sufficient  evidence,  and,  in  collateral 
proceedings  conclusive  evidence,  of  the  fact  so  determined.-' 

JURISDICTION    OF    ORPHANS'    COURT, 

General  Jurisdiction. 

The  statute  provides  that  the  orphans'  court  shall  have  full 
power  and  authority  to  hear  and  determine  all  controversies 
respecting  the  existence  of  wills,  the  fairness  of  inventories,  the 
right  of  administration  and  guardianship,  and  the  allowance  of 
the  accounts  of  executors,  administrators,  guardians  or  trus- 
tees, as  hereinafter  directed,  and  also  all  other  matters  and 
things  hereinafter  submitted  to  their  determination  ;  and  may 

2«0rphans'  Court  Act,  sec.   I77-  -^Orphans'  Court  Act,  sec.  178. 

3   Comp.    Stat.,   3879.  3    Comp.    Stat.,   3879. 


42  Probate  Law  and  Practice. 

issue  process  to  compel  all  executors,  adroinistrators,  guardians 
and  trustees  under  wills  to  account  for  the  estates  in  their 
hands  and  to  cause  to  come  before  them  all  persons  as  wit- 
nesses to  give  evidence  in  any  cause  before  the  said  court;  and 
all  causes  in  said  court  may  be  heard  in  a  summary  way  and 
determined  by  the  court.-* 

The  statute  creating  the    orphans'    court  is  remedial  in  its 
nature  and  should  be  liberally  construed.-'' 

A  Court  of  General  Jurisdiction. 

The  orphans'  court  is  a  court  of  general  jurisdiction  over  the 
subjects  committed  to  its  cognizance. ^°  The  principal  distinc- 
tion between  courts  of  superior  and  general  jurisdiction  and 
those  of  limited  and  special  jurisdiction  is,  that  the  former  need 
not  set  forth  in  their  records  the  facts  upon  which  their  right 
o  adjudicate  depends,  but  such  facts  will  be  presumed  and  no 
evidence  can  be  received  to  contradict  them."^  The  orphans' 
court  is  not  a  tribunal  of  limited,  or  special,  jurisdiction  in  the 
sense  that  its  proceedings  must  set  forth  everything  necessary 
to  give  it  jurisdiction,  or  be  presumptively  void  as  coram  non 
judice.^-  On  the  contrary,  it  is  a  court  of  general  jurisdiction, 
in  the  sense  that  its  judgments  are  entitled  to  a  presumption  of 
regularity ;  facts  necessary  to  sustain  jurisdiction  will  be  pre- 
sumed, and  no  evidence  admitted  to  contradict  them  in  any  col- 
lateral proceeding.^^ 

-■^Orphans'  Court  Act,  sec.  2.    3  stitution,    46    N.    J.    L.,    211-229. 

Comp.    Stat.,   3813.  Crawford   v.   Lees,  93   Atl.   Rep., 

23In   re   Cassidy,  80  N.  J.   Eq.,  201. 

163.     Wood  V.  Tallman,   i   N.  J.  32ciark  v.  Costello,  59  N.  J.  L.. 

L.,  153-155-    Pyatt  V.  Pyatt,  46  N.  234. 

J.   Eq.,   285-288.  sspiume  v.  Howard  Savings  In- 

3°0bert  V.  Hammel,  18  N.  J.  L.,  stitution,  46  N.  J.  L.,  211.     In  re 

J2,-    Hess  V.  Cole,  23  N.  J.  L.,  116.  Coursen's  Will,  4  N.  J.  Eq.,  408. 

Plume  V.  Howard  Savings  Institu-  Hess   v.    Cole,   23   N.   J.   L.,    116. 

tion,  46  N.  J.  L.,  211-229.     Clark  Obert  v.  Hammel,  18  N.  J.  L.,  7i. 

V.  Costello,  59  N.  J.  L.,  234.    Pj'-  Boulton  v.  Scott,  3  N.  J.  Eq.,  231. 

att  V.  Pyatt,  46  N.  J.  Eq.,  285-288.  Young's  Case,  67  N.  J.  Eq.,  553- 

Straub's  Case,  49  N.  J.  Eq.,  264-  559.    Vincent  v.  Vincent,  70  N.  J. 

265.     Affirmed  50  N.  J.  Eq.,  795.  Eq..  272.    Clark  v.  Costello,  59  N. 

Inhabitants  of  Hohokus  Township  J.  L.,  234.     Podesta  v.  Binns,  69 

V.  Erie  R.  R.,  65  N.  J.  L.,  353.  N.  J.  Eq.,  387.    Crawford  v.  Lees, 

^^Plume  V.  Howard  Savings  In-  93   Atl.   Rep.,   201. 


The  Orphans'  Court.  43 

The  orphans'  court  having  been  created  by  statute  witli 
powers  in  derogation  of  the  constitutional  courts,  it  must  be 
restrained  in  the  exercise  of  those  powers  by  the  words  of  the 
statute.^*  It  must  therefore  acquire  its  jurisdiction  in  the 
manner  prescribed  by  the  statute  giving  jurisdiction^^-''  and  if 
it  transcends  its  jurisdiction,  its  acts  will  pass  for  nothing/'*' 

The  orphans'  court,  being  a  superior  court  of  general  juris- 
diction, has  the  same  authority  over  its  decrees  by  inquiring 
into  the  authority  of  its  attorneys  to  appear,  as  may  be  exer- 
cised by  any  court  of  general  jurisdiction.^" 

Nature  of  Jurisdiction. 

The  orphans'  court  is  not  a  court  of  common  law,  but  a  court 
partaking  of  the  powers  of  a  chancery,  or  prerogative  jurisdic- 
tion^*^ ;  but  the  design  was  not  to  confer  upon  the  orphans' 
court  all  the  powers  which  the  Court  of  Chancery  has  over 
cases  of  administration,  guardianship  and  trust."''*  Thus  the 
orphans'  court  cannot  exercise  chancery  powers,  such  as  com- 
pelling a  trustee  to  re-convey  property  turned  over  to  him  by 
his  predecessor  in  the  trust";  and  so  the  court  has  no  jurisdic- 
tion to  enforce  the  lien  of  an  heir  against  land  which  has  been 
purchased  by  an  administrator  with  the  funds  of  the  estate.*' 
So  the  orphans'  court  has  no  original  jurisdiction  to  determine, 
upon  an  application  for  letters  of  administration,  whether  a 
wife's  release  of  her  interest  in  her  husband's  estate  has  been 
obtained  by  fraud ;  this  issue,  if  at  all,  is  only  incidentally  cog- 
nizable, and  its  decision  thereon  is  therefore  not  res  judicata.*'- 

'^Ludlow  V.  Ludlow.  4  N.  J.  L.,  Eq..  272.    See  also  "Power  to  Cor- 

189-190.     Potter  V.   Berry,   56  N.  rect  and  Revoke  Decrees,"  p.  68. 

J.    L.,    454-455.      Affirmed    57    N.  infra. 

J.  L.,  201.    In  re  Fritz's  Estate,  91  -''Wood  v.  Tallman.  i  N.  J.  L.. 

Atk  Rep.,  1017.  153-155-     Pyatt  v.  Pyatt,  46  N.  J. 

^■'Bray   v.   Neill,   21    N.  J.   Eq.,  Eq.,   285-288.     In    re    Cassidy,   80 

43.     Lawson  v.   Acton,   57  N.  J.  N.  J.  Eq.,  163. 

Eq.,  107.  39Hunt  v.  Mayberry,  29  N.  J.  L., 

3«In  re  Alexander.  79  N.  J;  Eq.,  403-406. 

226.  Russell's  Case,  64  N.  J.  Eq..  ^oghgrman   v.   Lanier,  39   N.  J. 

313-318.     Murray  v.  Lynch,  64  N.  Eq.,  249. 

J.  Eq.,  290-300.     Myer's  Case,  69  '•'Culver  v.  Pierson.  15  Atl.  Rep.. 

N.  J,  Eq.,  793-795.  but  see  "Inci-  269. 

dental  Jurisdiction,"  p.  46,  infra.  ^^Mullaney  v.  MuUaney,  65  N.  J. 

s^Vincent   v.   Vincent,   70   N.   J.  Eq.,  384- 


44  Probate  Law  and  Practice. 

The  orphans'  court  has  no  jurisdiction  to  establish  or  enforce 
trusts.  That  jurisdiction  resides  solely  in  the  Court  of  Chan- 
cery.*^ So  where  a  petition  was  presented  to  the  orphans' 
court  by  one  who  claimed  that  he  had  deposited  a  sum  of 
money  with  a  person,  since  deceased,  to  secure  him  against 
liability  upon  a  bond  given  by  him  at  petitioner's  request  to  a 
creditor  of  petitioner  as  collateral  to  obligations  given  to  such 
creditor  by  petitioner,  reciting  that  the  obligations  had  been 
paid  and  that  petitioner  was  in  possession  of  the  bond  of 
deceased  and  was  ready  to  surrender  it  to  the  administrator  of 
deceased  appointed  by  the  surrogate  of  the  county,  and  pray- 
ing for  a  decree  ordering  the  administrator  to  pay  to  petitioner 
$2,000,  and  interest  thereon,  it  was  held  that,  assuming  the 
truth  of  the  statements  in  the  petition  and  that  the  transaction 
between  the  petitioner  and  the  deceased  had  created  a  trust,  the 
orphans'  court  had  no  jurisdiction  to  establish  the  trust  and 
decree  its  performance  by  the  administrator." 

The  orphans'  court  has  no  jurisdiction  to  determine  whether 
a  trustee  is  properly  performing  the  trust,  or  to  direct  a  trustee 
how  to  perform  the  same.*'^  So  where,  by  the  will  of  a  testa- 
tor, his  residuary  estate  was  bequeathed  and  devised  to  a  trus- 
tee in  trust,  among  other  things,  to  pay  the  net  income  to  his 
daughter  for  life,  and  in  case  the  net  income  should  prove  insuf- 
ficient for  her  necessary  support  and  maintenance,  authority 
was  given  the  trustee  to  pay  her  out  of  principal  such  weekly 
or  monthly  allowance  as  might  be  required  for  said  support  and 
maintenance,  upon  application  to  the  orphans'  court  for  an 
order  requiring  the  trustee  to  pay  the  petitioner,  out  of  the 
principal  of  the  trust  fund,  such  weekly  or  monthly  allowance 
as  the  proof  should  show  to  be  required  for  her  support  and 
maintenance  in  accordance  with  the  provisions  of  said  will,  it 
was  held  that  the  court  had  no  jurisdiction  to  make  such  an 
order.*^ 

*3Appeal  of  O'Callaghan,  64  N.  "O'Callaghan's    Case,   64   N.  J. 

J.  Eq.,  287.     Lippincott's  Case,  68  Eq.,  287.     See  also  Ferdon's  Case. 

N.   J.   Eq.,    578,   but   quere   as   to  69  N.  J.  Eq.,  762. 

whether  such  jurisdiction  has  been  *^Lippincott's  Case,  68  N.  J.  Eq.. 

conferred  by   P.   L.    1909,   p.  284,  578. 

3  Comp.  Stat.,  3866,  sec.  139a.  ^''Lippincott's  Case,  68  N.  J.  Eq., 

578. 


The  Orphans'  Court.  45 

Over  Probate  of  Wills. 

The  orphans'  court  has  no  original  jurisdiction  over  the  pro- 
bate of  wills.  It  obtains  its  jurisdiction,  in  such  cases,  only 
through  the  surrogate.  Such  jurisdiction  springs  from  an 
issue  suggested  in  a  proceeding  which  originates  before  the 
surrogate.  The  statute  does  not  contemplate  that  application 
for  probate  shall  in  any  case  be  made  to  the  orphans'  court. 
That  court,  so  far  as  matters  of  probate  are  concerned,  is 
merely  the  trial  tribunal  of  issues  suggested  before  the  surro- 
gate.*" 

Over  Grant  of  Letters  of  Administration. 

The  orphans'  court  has  no  original  jurisdiction  to  grant  let- 
ters of  administration,  except  upon  a  dispute  arising  concern- 
ing the  right  of  administration,  which  deprives  the  surrogate 
of  his  jurisdiction  and  confers  it  upon  the  orphans'  court.** 
Where,  however,  a  disputed  will  which  names  no  executor  is 
admitted  to  probate  by  the  orphans'  court,  that  court,  as  an 
incident  to  its  jurisdiction  to  admit  the  will  to  probate,  has 
jurisdiction  to  appoint  an  administrator  with  the  will 
annexed.*''  The  statute  confers  upon  the  orphans'  court  the 
power  to  appoint  a  successor  to  an  administrator  removed  or 
discharged  by  it."'" 

Over  Grant  of  Letters  of  Guardianship. 

The  statute  confers  upon  the  orphans"  court  original  juris- 
diction over  the  grant  of  letters  of  guardianship.''^ 

To  Review  Decrees  of  Surrogate. 

As  has  been  seen,  the  orphans'  court  has  general  jurisdiction 
over  all  of  the  subjects  prescribed  by  the  statutes  of  which  it 
is  the  creature ;'-  but  control  of  decrees  of  the  surrogate  is  not 

^"Murray  v.  Lynch,  64  N.  J.  Eq.,  p.  46,  infra. 
290-295.     Affirmed  65   N.   J.   Eq.,  ■'"'•'Orphans'  Court  Act,  sec.   151. 

399.     Straub's  Case,  49  N.  J.  Eq.,  p.  611,  infra. 
264.  "''Orphans'   Court    Act,   sec.   36, 

^^Russell's   Case,  64   N.   J.   Eq.,  p.  741,  infra. 
.31.3-315-  •'"'-See  "A  Court  of  General  Jur- 

^■'In  re  Queen,  82  N.  J.  Eq.,  583  isdiction,"  p.  42.  supra, 
and  see  "Incidental  Jurisdiction,"' 


46  Probate  Law  and  Practice. 

one  of  those  subjects,  except  it  be  accomplished  through  review 
upon  appeal.  The  orphans'  court  and  the  surrogate's  court 
are  independent  judicial  tribunals,  and  the  orphans'  court  has 
no  jurisdiction  to  review  the  decree  of  the  surrogate,  except  by 
appeal.^^ 

It  follows  that  when  the  time  within  which  appeal  may  be 
taken  has  elapsed,  the  judgment  of  the  surrogate  is  a  finality, 
until  it  be  disturbed  by  a  direct  attack  upon  it,  which  should 
originate  before  the  surrogate.  Any  other  construction  would 
render  that  provision  of  the  statute  which  limits  the  time 
within  which  an  appeal  must  be  taken  meaningless;  for  if  at 
any  time  application  might  be  made  to  the  orphans'  court  to 
set  aside  the  surrogate's  decree,  there  would  be  no  use  for  an 
appeal,  as  such  an  application  would  effectuate  all  of  the  pur- 
poses of  an  appeal.^* 
Incidental  Jurisdiction. 

The  orphans'  court  may,  in  the  exercise  of  its  jurisdiction, 
determine  any  question  incidentally  and  necessarily  involved, 
though  the  determination  of  that  question,  if  directly  presented, 
would  not  be  within  its  jurisdiction ;  but  the  binding  effect  of 
its  conclusion  upon  the  question  will  not  extend  beyond  the  end 
for  which  the  conclusion  is  necessarily  reached^^ ;  so  where 
the  orphans'  court,  after  admitting  a  will  to  probate,  ordered 
that  assets  of  the  estate  in  the  possession  of  persons  in  New 
York,  who  were  before  the  court,  one  as  proponent  of  another 
will  of  the  testator  and  one  as  witness  thereto,  be  handed  over 
by  them  to  the  administrator  with  the  will  annexed,  it  was  held 
that  the  court  had  jurisdiction  to  make  the  order,  as  it  had 
jurisdiction  of  the  subject  matter  and  of  the  parties;  that,  gen- 
erally speaking,  the  order  was  a  direction  to  pay  and  deliver 
over  property  of  the  estate  to  the  person  entitled  by  law  to  the 
custody  of  it,  and  directed  the  parties  to  do  nothing  which  it 
was  not  their  plain  duty  to  do  without  such  order ;  and  that 
they  were  therefore  not  in  any  way  prejudiced  or  aggrieved 
by  it.'" 

s^In    re    Queen.    82    N.    J.    Eq.,  Affirmed  65  N.  J.  Eq.,  399. 

583,  and  cases  cited  at  p.  585.  ^^Dunham   v.    Marsh,    52   N.   J. 

5*In  re  Evans,  29  N.  J.  Eq.,  571.  Eq.,  256.    Affirmed  ib.  831.    In  re 

Straub's  Case,  49  N.  J.  Eq..  264.  Alexander,  79  N.  J.  Eq.,  226. 

Affirmed  50  N.  J.  Eq.,  795.    Mur-  ^^Dietz's  Case,  41  N.  J.  Eq.,  284. 

ray  v.  Lynch,  64  N.  J.  Eq.,  290.  Affirmed  42  N.  J.  Eq.,  689. 


The  Orphans'  Court.  47 

TESTIMONY,  HOW  TAKEN. 

Evidence    May    Be    Taken    in    Writing:    Adjournment    of 
Hearing. 

Upon  all  causes  heard  before  the  orphans'  court,  the  evi- 
dence and  proceedings,  upon  the  application  of  either  party, 
shall  be  reduced  to  writing  by  the  clerk  of  the  court ;  and  the 
court,  upon  just  cause,  may  put  off  the  hearing  of  the  cause  to 
another  time,  upon  the  application  of  either  party""  and  an 
appeal  lies  from  a  decree  of  the  orphans'  court,  where  the  court 
refused  to  admit  competent  evidence.^* 

Before  What  Officers  Testimony  May  Be  Taken:  Practice. 

All  examinations  to  be  taken  and  made  use  of  at  the  hearing 
of  any  cause  in  the  orphans'  court  of  any  county  may  be  taken 
and  reduced  to  writing  before  the  surrogate  of  such  county,  or 
a  master  in  chancery,  which  examinations  shall  be  taken  on 
ten  days'  notice  of  the  time  and  place  of  taking  the  same,  given 
by  the  party  or  his  attorney  to  the  opposite  party  or  his  attor- 
ney ;  and  either  of  the  parties  may,  in  person  or  by  his  attor- 
ney, be  present  and  examine  and  cross-examine  such  witnesses, 
V  and  the  examination  so  taken  shall  be  of  the  like  force  and 
effect  as  if  taken  in  the  orphans'  court,  and  shall  be  filed  with 
th'i  clerk  of  the  said  court  and  read  in  evidence  upon  the  hear- 
ing of  the  cause,  saving  all  just  exceptions. "^^ 

Orphans'  Court  May  Certify  Questions  of  Fact  to  Circuit 
Court  for  Trial. 

The  orphans'  court  may  certify  any  question  of  fact  into  the 
circuit  court  of  the  same  county  for  trial  before  a  jury,  and 
upon  filing  the  certificate  in  the  circuit  court  such  proceedings 
shall  be  had  thereupon  as  are  provided  for  in  the  trial  of  ques- 
tions involved  in  the  probate  of  wills  before  a  jury.®" 

^^Orphans'  Court  Act,  sec.  180.  3  3  Comp.  Stat.,  3880. 

Comp.   Stat.,  3880.  ""Orphans'  Court  Act,  sec.  182. 

^^Ex  parte  Coombs,  8  N.  J.  Eq.,  3  Comp.  Stat.,  3880.    For  practice 

78.     Reeve  v.  Townsend,  8  N.  J.  on  trial  of  questions  involved  in 

Eq.,  81.  the  probate  of  wills  before  a  jury, 

^''Orphans'  Court  Act,  sec.  181.  see  p.  226,  infra. 


48  Probate  Law  and  Practice. 

ORDERS  AND  DECREES. 

Validity  of  Decree. 

It  is  a  doctrine  of  universal  acceptation  that  the  judgment  of 
a  competent  court,  acting  within  its  jurisdiction,  is  conclusive 
upon  parties  and  privies  as  to  all  matters  adjudged  upon  which 
the  parties  were  of  right  entitled  to  be  heard.  This  rule  has 
been  applied  to  decrees  of  the  orphans'  court  in  numerous 
cases. '^^  A  decree  of  an  orphans'  court,  though  unlawful,  on  a 
matter  over  which  it  has  obtained  jurisdiction,  must  be  consid- 
ered valid  until  it  is  reversed,  and  is  not  to  be  questioned  in  a 
collateral  proceeding:"'-  and  where  a  decree  of  the  orphans" 
court  is  challenged  in  a  collateral  proceeding,  that  court  will  be 
presumed  to  have  had  before  it  and  to  have  passed  upon  all 
those  matters  the  existence  of  which  was  necessary  to  author- 
ize the  making  of  such  order.*'^  This  rule  does  not,  however, 
apply  to  acts  of  the  orphans'  court  relating  to  realty,  e.  g.,  the 
probate  of  a  will  devising  lands,  but  only  to  acts  affecting  per- 
sonalty.®* 

If  the  orphans'  court  transcends  its  jurisdiction,  its  decree 
will  be  treated  as  void  in  a  collateral  proceeding.*''' 

•'iConover  v.   Conover,   i   N.  J.  Savings    Inst.,    46    N.    J.    L..   211 

Eq.,  403.     Boulton  v.  Scott,  3  N.  Clark  v.  Costello,  59  N.  J.  L.,  234 

J.  Eq.,  231.    Black  v.  Whitall,  9  N.  Pittenger    v.    Pittenger,    3    N.    J 

J.    Eq.,    572.      Obert    v.    Hammel,  Eq.,    156.     Zabriskie   v.   Wetmore 

18   N.   J.    L.,    ^^.     Van    Kleek  v.  26  N.  J.  Eq.,   18.     Straub's  Case 

O'Hanlon,  21   N.  J.  L.,  582.     Za-  49.  N.   J.   Eq.,   264.     Affirmed    50 

briskie  v.  Wetmore,  26  N.  J.  Eq.,  N.    J.    Eq.,    795-      Inhabitants    of 

18.     Search    v.    Search,   27    N.   J.  Hohokus  Township  v.  Erie  R.  R 

Eq.,  137.     Plume  v.  Howard  Sav-  65  N.  J.  L.,  353 ;    but  see  Lawson 

ings  Inst..  46  N.  J.  L.,  211.    Clark  v.  Acton.  57  N.  J.  Eq.,  in,  at  p 

V.  Costello,  59  N.  J.  L.,  234.    Te-  113. 

han   V.   Maloy,   45   N.   J.   Eq..   68.  eaciark  v.  Costello,  59  N.  J.  L. 

Weyman  v.  Thompson,   50  N.  J.  234.     Crawford   v.    Lees,   93   Atl 

Eq.,  8.     Seymour  v.  Goodwin,  68  Rep.,    201. 

N.  J.  Eq.,  189.    Woolsey  v.  Wool-  G4Wiii^inson  v.  Trustees,  38  N 

sey,  72  N.  J.  Eq.,  898.     Shearman  J.  Eq.,  5i4- 

V.    Cameron,    78    N.    J.    Eq.,    532-  e^Qraham  v.  Houghtalin,  30  N 

536.     Crawford   v.   Lees.  93   Atl.  J.  L..  552.     Gray  v.  Fox,  i  N.  J 

Rep.,   201.  Eq.,   259-272.     Partridge  v.   Part- 

«20bert  V.  Hammel,  18  N.  J.  L.,  ridge,  46  N.  J.  Eq.,  434-    Affirmed 

IZ.     Van   Kleek  v.   O'Hanlon,  21  47  N.  J.  Eq..  601. 
N.  J.  L.,  582.     Plume  V.  Howard 


The  Orphans'  Court.  49 

The  decrees  of  the  orphans'  court,  like  the  judgments  of  all 
other  courts,  may  be  set  aside  in  equity  for  fraud  in  obtaining 
them.  The  court  of  chancery  has,  however,  no  jurisdiction  to 
decree  a  will  to  be  void  on  the  ground  of  fraud ;  fraudulent 
wills  constitute  the  great  exception  to  the  jurisdiction  of  courts 
of  equity  over  cases  arising  from  fraud.®^ 

ENFORCEMENT   OF   ORDERS   AND   DECREES. 

By  Attachment  for  Contempt. 

Every  person  duly  cited  or  summoned  to  appear  at  any  of 
the  said  orphans'  courts,  who  shall  make  default,  shall  be  liable 
to  attachment  for  contempt,  and  the  said  courts  are  hereby 
authorized  and  empowered  to  compel  obedience  to  their  proc- 
ess, orders  and  sentences,  by  imprisonment  of  body  or  dis- 
tress and  sale  of  lands  and  goods,  as  fully  and  amply  as  any 
other  court  of  record  in  this  state.®^ 

The  orphans'  court  has  no  authority  to  attach  for  contempt 
an  executor  because  he  refuses  to  obey  an  order  requiring  him 
to  turn  over  the  assets  of  the  estate  in  his  hands  to  his  co-exec- 
utor, if  such  order  be  made  while  he  is  still  in  office  ;  that  power 
comes  into  existence  only  after  the  removal  from  office  of  such 
executor.''^ 

Discharge  of  Persons  Imprisoned  By  Orphans'  Court. 

When  any  person  shall  be  imprisoned  by  virtue  of  any  order, 
writ  or  process,  made  by  or  issued  out  of  the  orphans'  court, 
the  court  making  such  order,  or  out  of  which  such  writ  or  proc- 
ess has  issued,  is  hereby  authorized  to  discharge  the  person  so 
imprisoned  at  the  discretion  of  said  court,  whenever  in  the 
judgment  of  said  court  the  ends  of  justice  require  such  dis- 
charge.**^ 

""Knikel  v.  Spitz,  74  N.  J.  Eq.,  Kocber's  Chancery  Practice,  p.  452. 

581.  esSmith  v.  Smith,  80  N.  J.  Eq., 

•-Orphans'  Court  Act,  sec.  183.  478. 

3  Comp.  Stat..  3880.    For  practice  «-'Orphans'  Court  Act,  sec.  186. 

on   attachment    for  contempt,   see  3    Comp.    Stat.,   3881. 


50  Probate  Law  and  Practice. 

What    Decrees    Must    Be    Recorded:    Execution:     When 
Decrees  Bind  Lands. 

All  decrees  or  orders  of  the  orphans'  court  whereby  any  fine 
is  imposed  or  a  sum  of  money  is  ordered  to  be  paid  by  one 
party  to  another  shall  be  recorded  and  shall  be  signed  by  a 
judge  of  the  court,  and  the  said  decrees  and  orders  shall  have 
the  same  liens  and  priorities  as  judgments  of  the  circuit  court 
of  the  same  county,  and  the  like  executions  may  issue  thereon, 
or  if  need  be  the  court  may  enforce  performance  of  the  same 
by  writs  of  attachment,  injunction  and  ne  exeat,  in  the  same 
manner  as  may  be  done  by  the  court  of  chancery;  provided, 
that  no  decree  of  the  orphans'  court  of  any  county  hereafter 
to  be  made  shall  become  a  lien  upon  or  bind  any  lands,  tene- 
ments, hereditaments  or  real  estate,  until  some  party  interested 
in  such  decree  shall  have  filed  in  the  office  of  the  clerk  of  the 
circuit  court  of  the  same  county  a  statement  or  abstract  of  such 
decree  containing  the  names  of  those  against  whom  it  is  ren- 
dered, the  time  at  which  said  decree  was  signed  and  the  amount 
of  the  fine  imposed,  or  sum  of  money  therein  ordered  to  be 
paid,  which  statement  or  abstract  said  clerk  shall  forthwith  file 
in  his  office,  and  index  and  record  the  same  in  the  books  in 
which  judgments  recovered  in  said  circuit  court  are  recorded 
and  indexed.''*' 
Execution  Will  Not  Issue  on  Decree  of  Distribution. 

A  decree  of  distribution  is  not  a  decree  whereby  money  is 
ordered  to  be  paid  by  one  party  to  another,  upon  which,  under 
the  provisions  of  this  section,  an  execution  may  issue.  The 
decree  for  the  payment  of  money  intended  by  the  foregoing 
section  is  one  made  in  a  proceeding  in  which  there  are  parties 
seeking  and  resisting,  or  having  the  opportunity  to  resist,  such 
decree.  A  decree  of  distribution  is  of  a  wholly  different  char- 
acter J^ 

When  Execution  Binds  Lands. 

No  execution  hereafter  issued  out  of  the  orphans'  court  shall 
bind  lands  unless  the  same  shall,  before  it  is  delivered  to  the 
sheriff,  be  recorded  in  the  book  kept  for  recording  executions 
issued  out  of  the  circuit  court  of  the  county." 

■^oOrphans'  Court  Act,  sec.  184.      9. 
3   Comp.   Stat.,   3880.  '^Orphans'  Court  Act,   sec.   185. 

■^iBayley  v.  Bayley,  71  N.  J.  Eq.,       3  Comp.  Stat.,  3880. 


The  Orphans'  Court.  51 

Order  or  Decree  May  Be  Docketed  in  Supreme  Court — Lien 
Upon  Lands. 

All  decrees  or  orders  of  the  orphans'  court  heretofore  or 
hereafter  made,  whereby  any  fine  has  been  or  may  hereafter 
be  imposed,  or  a  sum  of  money  has  been  or  may  hereafter  be 
ordered  paid  by  one  party  to  another,  shall  have  the  same  liens 
and  priorities  as  judgments  of  the  supreme  court,  and  the  same 
sliall  become  a  lien  upon  and  bind  the  lands,  tenements,  heredit- 
aments or  real  estate  of  the  person  against  whom  the  same  was 
or  shall  be  made ;  provided,  that  and  whenever  some  party 
interested  in  such  decree  shall  have  filed  in  the  ofiice  of  the 
clerk  of  the  supreme  court  a  statement  or  abstract  of  such 
decree,  certified  by  the  surrogate  of  the  county  wherein  the 
same  was  made,  containing  the  names  of  the  parties  thereto, 
designating  particularly  those  against  whom  it  is  rendered,  the 
time  at  which  said  decree  was  signed,  the  amount  of  the  debt, 
damages,  costs,  fine  imposed  or  other  sum  of  money  thereby 
directed  to  be  paid,  which  statement  or  abstract  the  said  clerk 
shall  forthwith  record  in  a  proper  book  by  him  provided  and  in 
his  office  kept  for  that  purpose,  and  which  book  shall  be  prop- 
erly indexed  by  said  clerk,  and  be  a  public  record  and  to  which 
all  persons  desirous  to  examine  the  same  shall  have  access. 
And  the  amount  due  on  such  decree  at  the  time  of  such  docket- 
ing shall  be  sworn  to  by  affidavit  annexed  to  such  statement, 
or  abstract,  by  the  party  causing  the  same  to  be  filed  as  afore- 
said, or  his  or  her  attorney  or  proctor.'^ 

LIABILITY      OF      EXECUTOR,      ETC.,      ON      DOCKETED 

DECREE. 

When  any  person  be  personally  and  individually  liable  on 
any  such  decree  made  against  them  as  executor,  administrator, 
guardian  or  trustee,  and  docketed  as  aforesaid,  no  suit  shall  be 
necessary  on  the  said  decree  or  the  bond,  as  against  such  per- 
son, but  such  decree,  when  docketed  as  aforesaid,  shall,  on 
order  of  the  orphans'  court,  as  hereinafter  provided,  bind  the 
lands,  tenements,  hereditaments  and  real  estate  of  such  person 
as  fully  and  in  the  same  manner  as  though  it  were  a  judgment 
of  the  supreme  court  rendered  against  such  person. ''* 

'•'P.   L.   1907,  p.  358.     3   Comp.  '*P.   L.   1907,  p.  359-     3  Comp. 

Stat.,  3881,  sec.  i86a.  Stat.,  3881,   sec.    186b. 


52  Probate  Law  and  Practice. 

EXECUTION  OUT  OF  SUPREME  COURT  ON  ORDER  OF 
ORPHANS'  COURT. 

Execution  shall  issue  out  of  the  supreme  court  on  any  such 
decree  docketed  therein  as  aforesaid  against  any  person  as 
executor,  administrator,  guardian  or  trustee,  or  as  an  indi- 
vidual when  personally  liable  thereon,  on  order  of  the  orphans' 
court,  in  which  said  decree  was  made,  which  order  shall  specify 
how  such  execution  shall  issue  and  a  certified  copy  of  which 
order  when  made  shall  be  filed  with  the  clerk  of  the  said 
supreme  court ;  provided,  That  no  such  order  shall  be  made 
except  upon  petition  to  the  orphan's  court  of  the  person  apply- 
ing for  the  same  and  due  notice  given  to  the  person  to  be 
affected  thereby,  or  their  attorney,  or  proctor."^ 

Satisfaction  of  Decree. 

Such  decree  may  be  satisfied  in  the  same  manner  as  now 
provided  for  the  satisfaction  of  judgments  at  law  in  the 
supreme  court,  or  by  order  of  the  said  orphans'  court  duly 
made,  and  a  certified  copy  of  which  order  shall  be  filed  with 
the  clerk  of  the  supreme  court. ''^ 

Fees  Allowable, 

The  clerk  of  the  supreme  court  shall  be  entitled  to  collect  and 
tax  the  same  fees  and  costs  for  the  filing  of  such  statement,  or 
abstract,  the  filing  of  such  orders  and  the  issuing  and  return  of 
such  execution  as  are  now  provided  by  law  for  the  docketing 
of  decrees  from  the  court  of  chancery  and  the  filing  of  orders 
and  issuing  and  return  of  execution  in  actions  at  law,  which 
fees  and  costs  shall  become  a  part  of  the  amount  due  in  such 
decree." 

Remedy  Against  Principal  or  Surety  Not  Affected. 

Nothing  herein  contained  shall  be  construed  to  affect  any 
remedy  against  any  principal  or  surety  on  any  bond,  or  to  make 
liable  or  release  from  liability  any  principal  or  surety  on  any 
bond  heretofore  or  hereafter  made  or  given. "^ 

■sp.  L.   1907,  p.  359.  3   Comp.  "'P.   L.   1907,  p.  360.     3   Comp. 

Stat.,  3881,  sec.  i86c.  Stat.,  p.  3881,  sec.   i86e. 

"''P.  L.   1907.  p.  359-  3  Comp.  ^^P.  L.   1907,  p.  360.     3  Comp. 

Stat.,  3881.  sec.  i86d.  Stat.,  p.  3882,  sec.  i86f. 


The  Orphans'  Court.  53 

AMENDMENTS. 

Power  of  the  Orphans'  Court. 

In  order  to  prevent  the  faih:re  of  justice,  by  reason  of  mis- 
takes and  objections  of  form,  it  shall  be  lawful  for  the  orphans' 
court  or  the  ordinary,  at  all  times  and  in  all  cases,  to  amend 
all  defects  and  errors  in  any  proceeding,  whether  there  is  any- 
thing in  writing  to  amend  by  or  not,  and  whether  the  defect  or 
error  be  that  of  the  party  applying  to  amend  or  not,  and  all 
such  amendments  may  be  made  with  or  without  costs,  and 
upon  such  terms  as  to  the  orphans'  court  or  ordinary  may 
seem  fit ;  and  all  such  amendments  as  may  be  necessary  for  the 
purpose  of  determining  in  the  existing  suit  or  proceeding  the 
real  question  in  controversy  between  the  parties,  or  the  real 
question  raised  on  the  application  to  amend,  shall  be  so  made.'^ 
Amendments  on  Appeal. 

The  ordinary  and  orphans'  court  may  make  such  amend- 
ments in  proceedings  brought  before  them  by  appeal  as  the 
court  below  should  have  made.^° 

COSTS    AND    COUNSEL    FEES. 
In  General. 

Costs  were  not  recoverable  at  common  law.  They  are  the 
creature  of  statute.*^  It  follows,  therefore,  that  the  only  right 
of  the  orphans'  court  to  allow  costs  and  counsel  fees  must  flow" 
from  some  statute  granting  that  power.  The  only  statutory 
provisions  conferring  upon  the  orphans'  court  such  power  are 
sections  196*-  and  197*^  of  the  Orphans'  Court  Act. 
Section  196  applies  to  all  litigation,  and  the  terms  "costs  and 
expenses"  used  in  the  section  undoubtedly  include  counsel  fees ; 
but  that  section  provides  that  "the  court  shall  judge  and  direct 
zvhicli  party  shall  pay  the  costs  and  expenses  of  the  litigation," 
which  obviously  does  not  apply  to  an  application  to  pay  the 
costs  of  an  unsuccessful  litigation  from  the  estate.  Section 
197  of  the  Orphans'  Court  Act  applies  only  to  will  contests. 
These  principles  were  applied  in  the  Essex  County  Orphans' 

'"■'Orphans'  Court  Act,  sec.  195.  siL^^jgh  Valley  R.  R.  Co.  v.  Mc- 

3  Comp.  Stat.,  3884.  Farland,  44  N.  J.  L.,  674. 

*<*Robison  v.  Furman,  47  N.  J.  82pagg  ^^    infra. 

Eq.,  307.     Voorhees'  Case,   57   N.  ^ap^gg  230,   infra. 
J.   Eq.,  291-294. 


14  Probate  Law  and  Practice. 

Court, ^*  to  an  application  for  the  allowance  of  counsel  fees 
in  a  proceeding  for  a  decree  of  distribution,  in  which  proceed- 
ing the  only  question  arising  was  as  to  who  should  be  the  dis- 
tributees, and  it  was  held  that  the  orphans'  court  was  without 
jurisdiction  to  allow  counsel  fees  to  the  unsuccessful  litigants. 
This  adjudication  was  affirmed  by  the  Prerogative  Court,  sub. 
nom.  Smith  v.  McDotujld.^^ 

Court  to  Adjudge  Who  Shall  Pay  Costs. 

In  all  litigated  suits  in  the  orphans'  court,  the  court  shall 
adjudge  and  direct  which  party  shall  pay  the  costs  and  expenses 
of  such  litigation,  and  shall  have  the  power  to  apportion  and 
determine  the  costs  and  expenses  to  be  paid  by  either  party.®** 

AFFIDAVITS. 
Proctor  Not  to  Take. 

No  proctor  or  counsellor  shall  take  any  affidavit  for  use  in  any 
proceeding  before  the  Orphans'  Court  or  Surrogate  in  which  he 
or  any  firm  of  which  he  is  a  member  appears  as  proctor  or 
counsel  of  record.^' 

^*In  re  Cornelia  B.  Halsey,  Mar.  ance  of  costs  on  probate  of  will  in 

1905.  the   orphans'   court,   see   "Probate 

856q  n   j    Eq^  765.   Affirmed  71  of  Wills,"  p.  188,  infra. 

N.  J.  Eq.,  261.  s^Orphans'  Court  Rule  48. 

^^Orphans'  Court  Act,  sec.  19b. 
3  Comp.  Stat.,  3884.     For  allow- 


CHAPTER  III. 

THE     SURROGATE— HIS     OFFICE,     DUTIES     AND 
JURISDICTION. 

Historical. 

Upon  the  surrender  of  the  government  of  the  province  of 
New  Jersey  to  the  crown  by  the  Proprietors  in  1702,  Lord 
Cornbury  was  appointed  governor  of  the  province ;  and  by  the 
commission  and  instructions  given  him  the  whole  ecclesiastical 
jurisdiction  over  New  Jersey  was  reserved  to  the  Bishop  of 
London,  excepting  "the  collating  of  benefices,  granting  of 
licenses  for  marriages  and  probate  of  wills,''  which  powers 
were  granted  to  Lord  Cornbury,  and  without  variation  to  his 
several  successors.^ 

At  an  early  date,  the  provincial  governors,  to  facilitate  the 
transaction  of  business,  appointed  deputies  wnth  the  name  of 
surrogate  to  act  in  their  stead,  the  name  being  derived  from 
that  of  the  deputy  appointed  by  the  English  Bishops  to  take 
cognizance  of  questions  of  ecclesiastical  jurisdiction.  These 
surrogates  appointed  by  the  provincial  governors  had  concur- 
rent jurisdiction  with  them  throughout  the  state.  This  condi- 
tion of  affairs  continued  until  the  adoption  of  the  constitution 
of  1776,  whereby  the  governor  was  constituted  the  "ordinary 
or  surrogate-general."  The  governors  under  the  constitution, 
in  their  capacity  as  ordinary,  continued  appointing  deputies  or 
surrogates,  in  the  same  manner  as  their  provincial  predecessors 
had  done,  until  1784,  when  an  act  was  passed  providing  that 
the  ordinary  should  thereafter  appoint  but  one  deputy  or  surro- 
gate in  each  county,  and  that  the  power  and  authority  of  the 
surrogate  should  be  limited  to  the  county  for  which  he  was 
appointed.  In  1822  (Elmer's  Digest,  547)  the  appointment  of 
his  surrogates  was  taken  from  the  ordinary  and  conferred  upon 
the  joint  meeting  of  the-council  and  assembly,  and  their  term 
of  office  fixed  at  five  years.  In  1844,  the  surrogate,  by  the 
constitution  adopted  in  that  year  (Sec.  IV.,  par.  2),  was  made 

'See  Learning  &   Spicer,  p.  639. 

55 


56  Probate  Law  and  Practice. 

a  constitutional  officer  and  the  method  of  his  selection  provided 
for,  which  was  thereafter  to  be  election  by  popular  vote.  This 
divorced  him  from  his  former  status  as  deputy,  and  made  him 
an  independent  officer,  whose  duties  were  fixed  by  the  Legisla- 
ture in  the  revision  of  1846,  which,  among  other  things,  pro- 
vided that  there  should  be  but  one  surrogate  elected  in  each 
county,  "and  the  power  and  authority  of  the  surrogate  shall  be 
limited  to  the  county  in  which  he  is,  or  shall  be  elected." — 
Rev.  1846,  p.  827.  This  act  has  never  been  repealed.^ 
There  is  no  doubt  that  this  statute  was  intended  to,  and  does, 
limit  the  jurisdiction  of  the  surrogate  to  matters  arising  in  his 
particular  county,  and  does  not  grant  a  general  jurisdiction  to 
admit  to  probate  the  wills  of  non-residents  of  state  or  county. 
As  to  wills  of  residents  of  this  state,  his  jurisdiction  is  now  by 
statute  expressly  limited  to  cases  where  the  testator  resides  in 
his  county  at  the  time  of  death.^ 

Nature  of  Office, 

In  admitting  wills  to  probate,  as  well  as  in  the  grant  of  let- 
ters of  administration  and  of  guardianship,  the  surrogate  holds 
a  court  and  acts  in  a  judicial  capacity,  and  his  acts  can  only  be 
reviewed  by  appeal  to  the  orphans'  or  prerogative  court ;  they 
cannot  be  impeached  collaterally.  The  only  question  that  can 
be  raised  otherwise  than  by  appeal  is  whether  he  had  jurisdic- 
tion.* But  the  acts  of  the  surrogate  are  not  regarded  as 
final  in  so  far  as  they  affect  realty  ;  e.  g.,  in  the  case  of  the  pro- 
bate of  a  will  devising  lands  which  may  be  attacked  collaterally 
in  a  suit  for  ejectment  involving  such  lands.^ 

24  Comp.  Stat.,  p.  5056,  sec.  i.  J.  Eq.,  583-    In  re  Whitehead's  Es- 

^Orphans'  Court  Act,  sec.  14,  p.  tate,  94  Atl.  Rep.,  796-8.    The  ordi- 

201,   infra.     Chadwick's    Case,  80  nary  has  no  jurisdiction  to  enter- 

N.  J.  Eq.,  471-474.  tain    proof    of    a    will    in    solemn 

*Quidort  v.  Pergeaux,  18  N.  J.  form,  as  a  means  of  setting  aside 

Eq.,  472.     Ryno  v.  Ryno,  27  N.  J.  a  decree  of  a  surrogate  admitting 

Eq.,  522.     In  re  Evans,  29  N.  J.  a  will  to  probate,  after  the  statu- 

Eq.,  571.     Straub's  Case,  49  N.  J.  tory  period  for  appeal  has  expired. 

Eq.,  264.     Affirmed  50  N.  J.  Eq.,  In  re  Whitehead's  Estate,  94  Atl. 

795.  Buecker  v.  Carr,  60  N.  J.  Eq.,  Rep.,  796. 

300.    Steele  v.  Queen,  67  N.  J.  L.,  ^wiikjnson  v.  Trustees,  38  N.  J. 

99.  Crawford  v.  Lees,  93  Atl.  Rep.,  Eq.,   514.     Crawford  v.   Lees,  93 

201.     In  re  Queen's  Estate,  82  N.  Atl.   Rep.,  201. 


The  Surrogate's  Court.  57 

In  addition  to  his  judicial  powers,  the  surrogate  is,  as  will 
be  seen,  made,  by  the  statute,*^  the  recorder  of  the  papers  and 
decrees  of  his  own  court — in  fact,  clerk  of  his  own  court.  In 
addition  thereto,  he  is  clerk  of  the  orphans'  court.  The  dis- 
tinction drawn  by  section  157  and  162  of  the  Orphans'  Court 
Act  make  this  fact  perfectly  clear.  Section  159'  expressly 
defines  his  duties  as  clerk  of  the  orphans'  court  and  section  160* 
defines  his  duties  as  clerk  of  his  own,  or  surrogate's  court." 

Jurisdiction. 

The  jurisdiction  of  the  surrogate  is  purely  statutory,  and 
extends  to  the  probate  of  wills  and  grant  of  letters  of  adminis- 
tration and  of  guardianship  in  uncontested  cases,  and  to  such 
other  matters  as  are  mentioned  in  the  statute.  A  full  consid- 
eration of  the  surrogate's  jurisdiction  over  each  of  the  several 
matters  committed  to  him  will  be  found  in  connection  with  the 
various  subjects  of  his  jurisdiction.^*^ 

May  Issue  Subpoena  To  Appear. 

The  surrogates  of  the  several  counties  of  this  state  are 
hereby  authorized  to  issue  process  of  subpoena  to  any  person 
within  this  state  to  appear  before  them  to  give  evidence  in  any 
case  or  matter  pending  before  said  surrogates.  Every  person 
subpoenaed  as  a  witness  by  any  of  the  surrogates  of  this  state 
who  shall  not  appear,  or  appearing  shall  refuse  to  serve  or  give 
evidence,  in  any  such  action,  shall  forfeit  and  pay  for  every 
such  default  or  refusal,  unless  some  reasonable  cause  be 
assigned,  such  fine  not  exceeding  fifty  dollars,  nor  less  than  one 
dollar,  as  the  surrogate  issuing  such  subpoena  shall  think 
proper  to  impose  and  in  default  of  the  payment  of  such  fine 
shall  be  committed  to  the  county  jail  of  the  county  of  the  surro- 
gate issuing  such  subpoena  as  aforesaid,  until  such  fine  is  paid, 
unless  sooner  discharged  by  the  order  of  the  said  surrogate, 
which  fine,  when  collected,  shall  be  paid  over  to  the  county 
collector  of  the  county  in  which  the  said  surrogate  was 
elected. ^^ 

^Orphans'   Court   Act,   sec.    158,  loSee  Probate  of  Wills,  p.   188, 

p.  58.  infra.  infra.      "Letters    of    Administra- 

^Page  62,  infra.  tion,"    p.    251,    infra.    "Letters    of 

sPage  59,  infra.  Guardianship,"  page  741,  infra. 

»Steele  v.  Queen,  67  N.  J.  L.,  ^^P.  L.   1915,  P-   MO. 
99. 


58  Probate  Law  and  Practice. 

Commissions  To  Take  Depositions  De  Bene  Esse. 

An  amendment  to  the  Evidence  Act'-  provides  that  the 
provisions  of  that  act  in  relation  to  the  examination  of  wit- 
nesses by  depositions  shall  apply  to  any  proceeding  in  the 
court  of  chancery,  supreme  court,  circuit  court,  court  of 
common  pleas,  orphans'  court,  or  before  any  of  the  surro- 
gates of  this  state,  wherein  the  testimony  of  witnesses  may  be 
required  as  the  basis  of  judicial  action  by  virtue  of  any  statute 
or  other  law  of  this  state. '^ 

Validity  of  Acts  of  Surrogate. 

The  statute  provides  that  the  probate  of  wills,  and  letters 
testamentary,  of  administration  and  of  guardianship,  issued 
by  the  surrogate  under  said  act,  shall  have  the  same  validity 
and  effect  as  the  probate  of  wills  and  letters  of  administration 
or  guardianship  issued  by  the  register  of  the  prerogative 
office  in  the  name  of  the  ordinary,  with  the  seal  of  office 
affixed.'-^ 

When  the  time  within  which  appeal  from  the  surrogate  may 
be  taken  has  elapsed,  the  proceeding  is  a  finality  until  it  is 
disturbed  by  a  direct  attack  upon  it,  which  should  originate 
before  the  surrogate ;  the  orphans'  court  cannot  on  application 
set  it  aside.'^ 

MISCELLANEOUS  FUNCTIONS  OF  SURROGATE. 

Surrogate  to  Record  Wills;   Records  and   Transcripts   as 

Evidence. 

The  surrogate  of  each  county  shall  record,  in  books  to  be 
provided  for  that  purpose,  at  the  expense  of  the  county  for 
which  they  shall  be  used,  all  wills  proved  before  him  or  before 
the  orphans'  court,  together  with  the  proofs  thereof,  all  letters 
of  guardianship,  letters  testamentary  and  letters  of  adminis- 

122  Comp.  Stat.,  2216.  574-     Straub's  Case,  49  N.  J.  Eq.. 

132  C.  S.,  2235,  sec.  47,  as  amend-  264-265.     Affirmed   50  N.  J.   Eq.. 

ed  by  P.  L.  1915,  p.  141.  795-     Crawford    v.   Lees,   93    Atl. 

i^Orphans'  Court  Act,  sec.  156.  Rep..  201.     In  re  Queen's  Estate. 

3  Comp.  Stat.,  3872.  82  N.  J.  Eq..  583,  and  see  "Nature 

i^In  re  Evans,  29  N.  J.  Eq.,  571-  of  Office."  p.  56,  supra. 


The  Surrogate's  Court.  59 

tration,  by  him  issued  or  granted,  and  all  things  concerning 
the  same,  and  also  all  inventories  proved  before  him ;  which 
records  shall  be  of  the  same  force,  validity  and  etTect  as  the 
like  records  in  the  prerogative  office,  and  the  transcript  of  such 
records,  certified  under  the  hand  and  seal  of  office  of  the  surro- 
gate, shall  be  received  in  evidence  in  every  court  of  this  state, 
and  have  the  same  validity  and  effect  as  transcripts  certified 
by  the  register  of  the  prerogative  court. ^^ 

Surrogate  To  Index  Records  and  Papers. 

It  shall  be  the  duty  of  the  surrogate  to  keep  all  papers  and 
records  appe^rtaining  to  his  office  properly  indexed  in  an 
alphabetical  manner,  in  which  records  of  all  the  official  acts 
(which  are  made  of  record  in  said  office)  of  the  previous  week 
(so  far  as  the  same  can  be  done)  shall  be  recorded,  properly 
indexed  in  manner  aforesaid ;  upon  any  failure  to  perform  said 
duties  the  surrogate  shall  forfeit  and  pay  the  sum  of  ten  dol- 
lars for  each  and  every  week  he  shall  neglect  said  duties,  to  be 
sued  for  and  recovered  by  the  director  of  the  board  of  chosen 
freeholders  in  the  county  where  the  delinquency  shall  happen, 
in  his  own  name,  to  be  applied,  when  recovered  to  and  for  the 
use  of  the  county.'" 

Surrogate  Required  To  File  Certain  Documents, 

The  surrogate  is  required,  by  statute,  to  file  all  administra- 
tion and  guardianship  bonds  by  him  taken,  and  other  instru- 
ments in  writing  required  bylaw  in  conducting  the  business  of 
his  office,  or  which  were  heretofore  used  to  be  filed  in  the  pre- 
rogative office.'^ 

Surrogate  for  Time  Being  May  Sign  Entries  and  Certifi- 
cates. 

The  surrogate  for  the  time  being  is  authorized  to  sign  all 
entries  of  record  and  the  certificate  of  the  filing  of  papers  in 
his  ofiftce,  either  as  surrogate  or  clerk  of  the  orphans'  court : 
and  such  signature  by  the  surrogate  in  office  shall  be  as  good 

"'Orphans'  Court  Act,  sec.  158.       3  Coinp.   Stat..  387^- 
3   Comp.   Stat.,   3872.  "^Orphans'  Court  .\ct,  sec.   157. 

'^Orphans'  Court  Act,  sec.   160.      3  Comp.  Stat.,  3872. 


6o  Probate  Law  and  Practice. 

and  effectual  as  if  signed  by  the  surrogate  or  clerk  of  the 
orphans'  court  at  the  time  the  said  entries  of  record  or  the 
filing  of  such  papers  were  or  should  have  been  made.^^ 

Evidential  Value  of  Surrogate's  Records  and  Transcripts. 

The  records  kept  by  the  surrogate,  under  the  provisions  of 
this  act,  and  the  transcript  of  such  records  under  the  hand  and 
seal  of  office  of  the  surrogate,  shall  be  received  as  evidence  in 
any  of  the  courts  of  this  state.-*' 

Duty  of  Surrogate  To  Transmit  Wills,  Etc.,  To  Prerogative 
Court. 

Every  surrogate  shall,  on  the  first  Monday  of  February, 
May,  August  and  November,  in  each  year,  transmit  to  the  reg- 
ister of  the  prerogative  court  all  wills  and  inventories  proved 
by  him,  and  a  return  of  all  letters  of  administrations  granted 
during  the  preceding  three  months,  to  be  filed  in  the  said  regis- 
ter's office.-^ 

Penalty  For  Taking  Illegal  Fees. 

If  any  surrogate  shall  take  other  or  greater  fees  than  by  law 
allowed,  or  shall  take  fees  for  services  not  performed,  he  shall, 
for  every  such  offense,  forfeit  and  pay  the  sum  of  thirty  dol- 
lars, to  be  recovered  in  an  action  of  debt,  with  costs  of  suit, 
before  any  court  having  cognizance  thereof,  by  the  party 
aggrieved.-- 

Surrogate  or  Deputy  Surrogate   May  Administer   Certain 
Oaths. 

Any  oath,  affirmation,  affidavit,  deposition  or  proof  required 
to  be  made  or  taken  in  any  proceeding  before  the  surrogate 
or  in  the  orphans'  court  of  any  county  or  necessary  or  proper 
to  be  used  before  such  surrogate  or  court  for  any  purpose 
whatever,  including  the  proof  of  wills,  may  be  made  and  taken 

i^Orphans'  Court  Act,  sec.  i6i.  -'Orphans'  Court  Act,  sec.  165; 

3  Comp.  Stat.,  3873-  3  Comp.  Stat.  3873. 

^oQrphans'  Court  Act,  sec.  162.  220rphans'  Court  Act,  sec.  166. 

3  Comp.  Stat.,  3873.  3  Comp.  Stat.,  3873. 


The  Surrogate's  Court.  6i 

by  and  before  the    surrogate  or    deputy  surrogate  of    such 
county.-^ 

Certain  Oaths  Taken  Before  Deputy  Surrogates  Valid. 

All  oaths,  affirmations  and  affidavits,  and  certificates  thereof 
heretofore  taken  or  made  before  or  by  any  one  of  the  deputy 
county  clerks  or  deputy  surrogates  of  any  of  the  counties  of 
this  state  are  hereby  confirmed  and  made  valid  and  legal  and 
effectual  as  if  such  deputy  county  clerk  or  deputy  surrogate 
had  been  given  full  power  and  lawful  authority  to  take  such 
oaths,  affirmations  and  affidavits  by  virtue  of  an  act  entitled 
"An  act  to  amend  an  act  entitled  'A  supplement  to  an  act  enti- 
tled "An  act  relative  to  oaths  and  affidavits  (Revision).'' 
approved  March  twenty-seventh,  one  thousand  eight  hundred 
and  seventy-four,'  "  which  supplement  was  approved  March 
twelfth,  one  thousand  eight  (sic)  hundred  and  eight.-* 

Admissibility  in  Evidence. 

The  record  of  any  oath,  affirmation  or  affidavit,  or  certified 
as  mentioned  in  the  next  preceding  section,  is  hereby  made 
good  and  effectual  in  law,  and  the  same  or  a  certified  copy 
thereof  may  be  used  and  given  in  evidence  in  the  same  manner 
and  with  like  effect  as  if  the  said  oath,  affirmation  or  affidavit 
had  been  made  before  and  certified  by  an  officer  then  having 
full  power  and  lawful  authority  to  take  the  same.-" 

Practice  When  Surrogate  is  Executor,  Administrator,  &c. 

If  any  surrogate  before  whom  the  probate  of  any  will  is 
required  to  be  made,  or  by  whom  the  letters  of  administration, 
or  of  guardianship  are  required  to  be  issued,  or  any  other 
official  act  as  surrogate  is  required  to  be  done  in  the  administra- 
tion or  settlement  of  any  estate,  shall  be  the  executor,  adminis- 
trator, guardian  or  trustee,  the  duties  required  to  be  performed 
by  the  surrogate  by  this  act  with  respect  to  the  probate  of  the 
will,  or  the  issuing  of  letters,  or  the  administration  or  settle- 
ment of  the  accounts  of  such  surrogate,  may.  in  such  cases,  be 

2-Orphans'  Court  Act,  sec.  164.  -"•?.  L.  191 1.  p.  21.  sec.  i. 

3  Comp.  Stat.,  3873.  25p    i^    ig£i_  p_  21,  sec.  2. 


62  Probate  Law  and  Practice. 

performed    Ijy    a  judge  of  the  orphans'   court  of  the  same 
county.-*^ 

Surrogate  To  Be  Clerk  of  Orphans'  Court. 

The  surrogate,  as  clerk  of  the  orphans'  court,  shall  keep 
regular  minutes  of  the  trials  and  proceedings  in  said  court,  and 
shall  record,  in  books  to  be  kept  for  that  purpose,  all  orders  and 
decrees  of  the  court ;  and  all  bonds  required  by  law  to  be  taken 
by  the  surrogate  or  given  in  pursuance  of  any  order  or  decree 
of  the  orphans'  court,  and  all  accounts  of  executors,  adminis- 
trators, guardians,  assignees  and  trustees,  and  all  partitions, 
sales  of  land  and  acceptances,  revocations,  requests,  renuncia- 
tions and  releases  necessary  or  proper  to  be  made,  if  desired 
by  any  party  in  interest.-^ 

COSTS. 
Surrogate  to  Tax — Recovery. 

The  bills  of  costs  shall  be  drawn,  taxed  and  filed  by  the 
surrogate,  who  shall,  in  case  the  same  be  not  paid,  issue  execu- 
tion therefor  against  the  goods  and  chattels,  and  lands  and 
tenements,  of  the  party  adjudged  to  pay  the  same;  and  the 
court  shall  have  power  to  enforce  the  payment  thereof  by 
attachment  or  other  process  in  the  same  manner  as  other  orders 
and  decrees  of  the  court  are  enforceable.-^ 

Costs  To  Be  Paid  To  Surrogate. 

The  costs,  when  paid  or  levied,  shall  be  received  by  the  surro- 
gate, who  shall  pay  to  the  sheriff  and  crier,  each  their  fees,  as 
the  same  shall  be  taxed,  and  the  residue  to  the  persons  entitled 
thereto.-^ 

Fees  Allowed. 

The  surrogates  and  other  officers  of  the  orphans'  court  shall 
receive,  for  the  services  hereinafter  mentioned,  the  fees  there- 
unto annexed,  and  no  more ;  and  a  sheet  or  folio  shall  contain 
one  hundred  words. 

^^Orphans'  Court  Act,  sec.  167.  ^^Orphans'  Court  Act,  sec.  198. 

3  Comp.  Stat.,  3873.  3   Comp.   Stat.,  3885. 

-'Orphans'  Court  Act,  sec.  159.  -^Orphans'  Court  Act,  sec.  199. 

3  Comp.   Stat.,  3872.  3   Comp.   Stat.,  3885. 


The  Surrogate's  Court.  63 

Fees  To  Be  Received  By  the  Surrogate  for  Services  Directed 
By  Law  To  Be  Performed  By  the  Register  of  the  Pre- 
rogative Court,  and  to  Be  Paid  Over  To  Him: 

For  recording  the  name  of  each  testator,  the  year  in  which 
the  will  was  proved,  and  fiHng  the  will,  twenty-five  cents ; 

Recording  the  name  of  each  intestate  where  administration 
hath  been  granted,  and  the  year  when  granted,  twelve  cents ; 

Filing  every  inventory,  twelve  cents. 

Fees  of  Surrogate  and  Clerk  of  the  Orphans'  Court: 

For  drawing  applications  for  probate  or  for  letters  of 
administration,  taking  proof  and  recording  the  same,  one  dollar 
and  sixty  cents ; 

For  drawing  and  taking  depositions  on  will  or  inventory, 
one  dollar  and  sixty  cents  ; 

Engrossing  a  will,  codicil  and  proof,  each  sheet,  fourteen 
cents ; 

Recording  a  will,  codicil  and  proof,  each  sheet,  ten  cents; 

For  making  and  signing  every  order  or  decree,  one  dollar ; 

Granting  probate,  one  dollar  and  twenty  cents ; 

Engrossing  probate,  fourteen  cents  ; 

Recording  probate,  ten  cents  ; 

Drawing  and  taking  depositions  to  codicils,  seventy-four 
cents ; 

Drawing  administration  bond  and  taking  deposition  thereon, 
one  dollar  and  sixty  cents ; 

Granting  letters  of  administration,  one  dollar  and  twenty 
cents; 

Engrossing  letters  of  administration,  fourteen  cents; 

Recording  letters  of  administration,  ten  cents  ; 

Filing  administration  bond,  ten  cents; 

Recording  administration  bond,  each  sheet,  twelve  cents ; 

Drawing  and  making  appointment  of  appraisers,  and  draw- 
ing the  oath  for  the  appraisers,  one  dollar  and  twenty  cents; 

Recording  inventory  and  proof,  each  sheet,  ten  cents ; 

Drawing  bond  and  petition  for  guardianship,  one  dollar  and 
sixty  cents  : 

Reading  bond  and  petition  for  guardianship,  twelve  cents; 


64  Probate  Law  and  Practice. 

Filing  bond  and  petition  for  guardianship,  ten  cents ; 

Granting  letters  of  guardianship,  one  dollar  and  twenty 
cents ; 

Engrossing  letters  of  guardianship,  fourteen  cents  ; 

Recording  letters  of  guardianship,  ten  cents ; 

Drawing  petitions,  stating  a  list  of  debts,  credits  on  applica- 
tion for  sale  of  real  estate,  entering  sale  and  making  copies,  one 
dollar  and  seventy-six  cents  ; 

Exhibiting  proofs  of  advertising  rule  to  show  cause,  entering 
decree  and  copies  thereof,  and  receiving  and  filing  report  of 
sales,  five  dollars  and  four  cents  ; 

For  advertising  rule  of  court  or  notice,  when  done  by  the 
surrogate,  one  dollar  and  twenty-cents  ; 

For  services  enjoined  by  the  act  concerning  contracts  of 
real  estate  made  by  testators  and  intestates  in  their  life-time, 
the  same  fees  as  allowed  for  the  sale  of  land ; 

Drawing  petitions,  reading,  filing  and  recording  decree 
appointing  commissioners  for  the  division  of  real  estate,  and 
a  certified  copy  of  such  decree,  four  dollars  and  eight  cents ; 

Recording  report  of  commissioners,  each  sheet,  ten  cents ; 

Recording  drafts  for  each  and  every  course,  four  cents ; 

Drawing  petition  on  application  for  rule  to  limit  time  to 
creditors,  entering  the  rule  and  decree,  making  the  rule  abso- 
lute, and  a  certified  copy  of  the  decree,  five  dollars  and  four 
cents ; 

Drawing  citation  or  other  process,  thirty-six  cents ; 

Sealing  the  same,  seventeen  cents  ; 

Entering  every  action,  ten  cents  ; 

Entering  the  return  of  a  writ,  twelve  cents  ; 

Entering  every  rule  or  order  of  court,  twelve  cents ; 

Copy  of  such  rule  or  order,  ten  cents ; 

Searching  the  records,  fourteen  cents ; 

Swearing  each  witness,  seven  cents ; 

Reading  every  petition  or  other  writing  given  in  evidence, 
twelve  cents ; 

Filing  every  citation,  exception,  or  other  paper,  ten  cents ; 

Indexing  each  paper  required  to  be  indexed,  ten  cents ; 

Entering  every  discontinuance,  twelve  cents  : 

Entering  every  decree,  twelve  cents  ; 

Taxing  every  bill  of  costs,  sixty  cents ; 


The  Surrogate's  Court.  65 

Issuing  execution  for  costs,  sixty  cents : 

Entering  and  filing  appeal,  twenty-four  cents ; 

Copies  of  citations,  exceptions,  records  and  other  papers, 
each  sheet,  ten  cents  ; 

Seal  and  certificate,  thirty  cents  ; 

Taking  depositions,  each  sheet,  fourteen  cents ; 

Taking  the  examination  of  every  witness,  for  each  sheet, 
twenty  cents ; 

Recording  certified  copy  of  proceedings  in  cases  of  lunacy, 
transmitted  to  the  court,  each  sheet,  ten  cents ; 

Recording  all  bonds  required  to  be  taken  by  or  filed  with  the 
surrogate,  each  sheet,  twelve  cents  ; 

Recording  accounts  of  executors,  administrators,  guardians 
and  trustees,  partitions,  requests,  renunciations,  releases, 
receipts  and  discharges,  and  all  other  papers  required  by  this 
act  to  be  recorded  and  not  otherwise  provided  for.  each  folio, 
twelve  cents : 

For  auditing,  stating  and  reporting  the  accounts  of  execu- 
tors, administrators,  guardians,  trustees  and  assignees,  on 
estates  not  exceeding  ten  thousand  dollars,  fifteen  dollars  : 

Over  ten  thousand  dollars  and  not  exceeding  fifty  thousand 
dollars,  thirty  dollars  ; 

Over  fifty  thousand  dollars,  and  not  exceeding  five  hundred 
thousand  dollars,  at  the  rate  of  one^tenth  of  one  per  centum, 
and  where  estates  exceed  five  hundred  thousand  dollars  the 
court  shall  fix  and  determine  the  additional  fees  to  be  allowed 
on  such  excess ;  provided,  such  further  and  additional  fees  may 
be  allowed  in  any  case,  as  the  court  shall  think  reasonable.'^" 

Method  of  Computing  Surrogate's  Fees  on  Accounting. 

In  computing  the  amount  of  an  estate  for  the  purpose  of 
fixing  the  fees  of  a  surrogate  for  auditing  and  reporting  an 
account,  the  balance  transferred  from  a  prior  account  should 
be  excluded. ^^ 

Fees  Reduced  in  Certain  Cases. 

Whenever  it  shall  appear  that  the  estate,  real  and  personal, 

30Orphans'  Court  Act,  sec.  200.  siHeath's    Case.    52    N.    J.    Eq.. 

3  Comp.   Stat..  3885.  807. 

6 


66  Probate  Law  and  Practice. 

of  any  testator,  intestate,  minor,  or  ward,  does  not  exceed  two 
hundred  dollars  the  fees  upon  proceedings  for  probate  of  a 
will,  administration  or  guardianship,  up  to  and  including  the 
letters  issued  and  copies  of  said  letters  as  well  as  the  fees  of 
filing  and  recording  an  inventory,  shall  be  one-half  of  the  fees 
heretofore  allowed  by  law,  and  whenever  it  shall  appear  that 
such  estate  does  not  exceed  one  hundred  dollars,  there  shall  be 
no  fees  charged;  provided,  however,  if  it  shall  afterwards 
appear  in  any  case  that  the  value  of  the  estate,  real  and  per- 
sonal, exceeds  or  exceeded  two  hundred  dollars,  then  the  said 
estate  shall  be  liable  for  and  pay  the  balance  of  the  fees  that 
would  have  been  collected  had  no  deduction  been  made  under 
the  provisions  of  this  act.^^ 

Whenever  it  shall  appear  that  the  estate,  real  and  personal, 
of  any  testator,  intestate,  minor  or  ward  does  not  exceed  two 
hundred  dollars,  no  fees  shall  be  charged  upon  the  auditing, 
stating  and  allowance  of  the  account  of  the  executor,  trustee, 
administrator,  or  guardian ;  and  when  it  shall  appear  that  such 
estate  does  not  exceed  the  sum  of  five  hundred  dollars,  the  fees 
upon  the  auditing,  stating  and  allowance  of  the  account  of  the 
executor,  trustee,  administrator  or  guardian  shall  be  one-half 
of  the  fees  heretofore  allov/ed  by  law ;  provided,  however,  that 
for  the  recording  of  said  account  and  any  and  all  orders  relat- 
ing thereto  the  fees  shall  be  the  same  as  heretofore  allowed  by 
law.^^ 

Fees  Payable  in  Advance. 

The  surrogates  shall  be  personally  liable  to  their  respective 
counties  for  the  payment  of  all  such  fees  and  costs  as  are  men- 
tioned in  the  first  section  of  this  act,  and  for  their  own  protec- 
tion it  shall  be  lawful  for  them  to  exact  the  payment  of  such 
fees  and  costs  before  filing  any  paper,  entering  and  docketing 
any  writ,  order  or  judgment,  recording  any  paper,  making  a 
copy  or  search,  or  performing  any  other  services  in  their  said 
offices  for  which  costs,  fees  or  compensation,  is  allowed ;  and 
for  convenience  it  shall  be  lawful  for  the  said  surrogates  to 

32P.  L.  1914,  p.  215,  amending  3  is  a  supplement  to  the  Orphans' 
Comp.  Stat.,  p.  3866.  sec.  200a.  Court  Act  and  in  part  the  Act  of 

33p.  L.  1915,  p.  326.     This  act      1914- 


The  Surrogate's  Court.  67 

receive  from  suitors  and  their  attorneys  reasonable  deposits  of 
money  in  advance  to  answer  such  fees  and  costs,  rendering  an 
account  thereof  to  the  person  making  such  deposit  at  least  once 
in  four  months.^* 

AFFIDAVITS. 

Proctors  Not  to  Take. 

Xo  proctor  or  counsellor  shall  take  any  affidavit  for  use  in 
any  proceeding  before  the  Orphans'  Court  or  Surrogate  in 
which  he  or  any  firm  of  which  he  is  a  member  aj)pears  as  proc- 
tor or  counsel  of  record. ^^ 
3"?.  L.   1898,  p.  228.     4  Comp.  ■•''Orphans'  Court  Rule  48. 

Stat,  p.  4642,   sec.  36. 


CHAPTER  IV. 


POWER    OF    PROBATE    COURTS    TO     CORRECT 

AND    REVOKE    THEIR    DECREES. 
In  General. 

That  courts  of  probate  have  the  power  to  open,  review, 
modify,  correct,  vacate  and  set  aside  their  orders  and  decrees 
is  a  doctrine  recognized  and  affirmed  by  the  overwhelming 
weight  of  authority  in  this  country^  and  by  a  long  and 
unbroken  line  of  precedents  and  authorities  in  England.-  The 
reason  upon  which  the  rule  is  based  is  two-fold ;  first,  that  this 
power  is,  and  always  has  been,  incident  to  all  courts  of  general 
jurisdiction,^  and  second  that  such  power  is  absolutely  essen- 
tial to  prevent  a  failure  of  justice.*     As  is  said  in  3  Bac.  Abr.. 


^Gaines  v.  Chew,  2  How.  (U. 
S.),  619-646.  Gaines  v.  Hennen, 
24  How.  (U.  S.),  553-567-  Roy  V. 
Segrist,  19  Ala.,  810.  Vaughn  v. 
Sugg,  2  So.  (Ala.),  32.  Steven- 
son V.  Superior  Court,  62  Cal., 
60.  French  v.  County  Home,  80 
Atl.  (Md.),  913.  Stetson  v.  Bass, 
9  Pick.  (Mass.),  26-29.  Waters  v. 
Stickney,  12  Allen  (Mass.),  i. 
Crocker  v.  Crocker,  84  N.  E. 
(Mass.),  476.  Morgan  v.  Dodge. 
44  N.  H.,  255.  Pew  V.  Hastings, 
I  Barb.  Ch.  (N.  Y.),  45^.  Camp- 
bell V.  Thatcher,  54  Barb.  (N.  Y.), 
382.  George's  Appeal,  12  Pa.  St.. 
260.  Bowen  v.  Johnson,  5  R.  I., 
112.  Rix  V.  Smith,  8  Vt.,  365. 
Smith  V.  Rix,  9  Vt.,  240.  Adams 
V.  Adams.  21  Vt.,  162  Brunson  v. 
Burnett,  2  Pinn.    (Wis.),   185-189. 

^Barnesly  v.  Powel,  i  Ves.  Sr., 
284.  Harrison  v.  Weldon,  2  Str., 
911.  Nicol  V.  Askew.  2  Moore  P. 
C,  88-92.  Blackborough  v.  Davis, 
T  Salk.,  38.  Prosser  v.  Wagner,  i 
C.  B.  (N.  S.).  Trower  v.  Cox,  i 
Addams,  219.     Hayle  v.  Hasted,  i 


Curt  Eccl.,  240.  Goods  of  Napier. 
I  Phillim.  R.,  83.  Noell  v.  Wells,  i 
Lev.,  235,  S.  C.  I  Sid.,  359.  Allen 
v.  Dundas,  3  T.  R.,  125.  Wilkin- 
son V.  Robinson,  14  Jur.,  72.  Car- 
olus  V.  Lynch,  i  Lees  Ecc.  Rep., 
13.  Cornish  v.  Cornish,  id.,  14. 
Burgis  v  Burgis,  Id.,  121.  Ogilvie 
v.  Hamilton,  Id.,  357.  Smith  v. 
Corry,  Id.,  418  Comyns'  Dig.  tit. 
Administrator,  B.,  8.  Bacon's  Abr. 
tit.  Administrator.  Wentw.  on 
Exrs..  48.  Toller  on  Wills,  73,  74. 
I  Williams  on  Executors,  399,  508, 
509,  512.  521,  524  and  notes. 

^Smith  v.  Rix,  9  Vt.,  240.  Adams 
V.  Adams,  21  Vt.,  162-166.  Brun- 
son v.  Burnett,  2  Pinn.  (Wis.), 
185. 

■^French  v.  County  Home,  80 
Atl.  (Md.).  911.  Stetson  v.  Bass, 
9  Pick.  (Mass.),  26-29.  Pew  v. 
Hastings,  i  Barb.  Ch.  (N.  Y.),' 
452-454.  Campbell  v.  Thatcher,  54 
Barb.  (N.  Y.),  382-386.  Bowen  v. 
Johnson,  5  R.  I.,  112-119.  Rix  v. 
Smith,  8  Vt.,  365-370. 


68 


Control  of  Decrees.  6q 

50,  in  speaking  of  the  ecclesiastical  tribunals  of  England,  in 
reference  to  this  power,  "it  would  be  absurd  to  allow  a  court 
jurisdiction  herein  and  at  the  same  time  deprive  them  of  the 
liberty  of  vacating  and  setting  aside  an  act  of  their  own.  which 
was  obtained  from  them  by  deceit  and  imposition."  Indeed, 
the  second  of  the  above  reasons  necessarily  follows  from  the 
first;  for.  assuming,  as  has  already  been  shown,  that  our  pni- 
bate  courts  are  courts  of  general  jurisdiction,  whose  decrees 
cannot  be  attacked  collaterally^  it  follows  that  if  their  decrees, 
obtained  by  fraud,  mistake,  or  accident,  cannot  be  reviewed 
and  corrected  by  them,  such  decrees  must,  after  the  expiration 
of  the  time  in  which  an  appeal  may  be  taken,  stand,  and  cannot 
be  corrected  at  all — a  result  which  would  be  intolerable.  As 
was  said  by  the  Supreme  Court  of  ^Massachusetts  in  Waters  v. 
Stickney''  this  power  does  not  make  the  decree  of  a  court  of 
probate  less  conclusive  in  any  other  court,  or  in  any  way  impair 
the  probate  jurisdiction  ;  but  renders  that  jurisdiction  more 
complete  and  effectual,  and  by  enabling  a  court  of  probate  to 
correct  mistakes  and  supply  defects  in  its  own  decrees,  better 
entitles  them  to  be  deemed  conclusive  upon  other  courts. 

In  considering  the  power  of  our  orphans'  courts  and  surro- 
gates over  orders  and  decrees,  it  must,  of  course,  at  the  outset, 
be  conceded  that  the  power  of  the  surrogates  and  orphans' 
courts  in  respect  to  the  jurisdiction  exercised  by  them  is  only 
that  conferred  by  statute.  The  jurisdiction  in  that  respect  must 
be  found  in  the  express  enactment  of  some  legislative  act,  or  in 
necessary  implication  therefrom." 

But  it  must  also  be  borne  in  mind  that,  although  the  juris- 
diction of  these  courts  is  thus  limited,  yet,  within  those  limits, 
it  is  general,  and  not  special ;  and.  as  a  necessary  corollary,  that, 
within  those  limits,  the  court  is  not  entirely  confined  to  the 
powers  specially  granted  by  the  legislature,  but  may  exercise 
the  revisory  power  over  its  orders  and  decrees  incident,  as  has 
been  seen  above,  to  all  courts  of  general  jurisdiction.^ 

This  distinction  between  courts  of  limited  jurisdiction  and 


•''See  pp.  48  and  58,  supra.  390.    Affirmed  65  N.  J.  Eq.,  399. 

•12  Allen    (Mass.),   1-15.  *In  re  Clement's  Appeal,  25  N. 

^Murray  v.  Lynch,  64  N.  J.  Eq.,      J.  Eq.,  508. 


yo  Probate  Law  and  Practice. 

courts  of  special  jurisdiction  is  clearly  pointed  out  by  the 
supreme  court  in  Obert  v.  HammeP  as  follows: 

"I  apprehend  the  term  'limited  jurisdiction'  to  be  somewhat 
ambiguous,  and  that  the  books  sometimes  use  it  without  due 
precision.  Our  supreme  court  is  limited  by  acts  of  the  legis- 
lature ;  so  likewise  is  the  court  of  common  pleas ;  and  the 
newly  constituted  circuit  courts :  yet  each  of  them  exercises  a 
general  jurisdiction.  The  word  limited  seems  to  be  used  some- 
times carelessly  instead  of  the  term  special,  for  I  take  the  true 
distinction  between  courts  to  be,  such  as  possess  a  general,  and 
such  as  possess  only  a  special  jurisdiction  for  a  particular  pur- 
pose, or  clothed  with  special  powers,  for  the  performance  of 
specific  duties,  beyond  which  they  have  no  manner  of  authority  ; 
and  these  special  powers  to  be  exercised  in  a  summary  way ; 
either  by  a  tribunal  already  existing  for  general  purposes  :  or 
else  by  persons  appointed,  or  to  be  appointed  in  some  definite 
form.  .  .  . 

"But  the  orphans'  court  is  not  organized  for  a  single  pur- 
pose, it  has  a  general  jurisdiction  as  broad  as  the  common 
pleas,  or  circuit  court,  or  perhaps  the  supreme  court  itself, 
it  did  no  more  than  give  a  new  dress  to  powers  coeval  with  the 
exclusive  of  its  appellate  and  superintending  authority.  The 
statute  of  the  i6th  of  December,  1784,^°  though  made  as  far 
back  as  the  Revolution,  did  not  create  a  court  before  unknown  ; 
province,  and  which  the  ordinary  and  his  surrogates  had 
always  exercised  in  the  prerogative  court,  professing  in  its 
title,  only  to  ascertain,  to  regulate  and  to  establish.  It  confers 
no  attribute  of  a  special  court,  for  one  purpose  only,  but  a 
jurisdiction  for  the  general  administration  of  justice  within 
certain  great  departments. 

Therefore,  if  the  orphans'  court  exercises  a  limited  juris- 
diction, still  it  is  not  a  special  one,  and  is  entitled  to  the  same 
liberal  presumptions,  as  any  supreme  court ;  that  what  is  done, 
is  rightly  done  until  reversed.  It  is  no  special  jurisdiction  for 
a  particular  purpose,  but  a  permanent  court  for  the  administra- 
tion of  justice ;  its  powers  are  inexhaustible  by  action ;  its  juris- 
diction spreads  over  vast  departments  of  matter."^^ 

9i8  N.  J.  L..  73-78.  iiAnd  see  also  to  the  same  effect 

loPaterson,    59.  Hess  v.  Cole,  23  N.  J.  L.,  116-121. 


Control  of  Decrees.  71 

Orphans'  Courts  and  Surrogates. 

In  the  two  cases  last  cited,  it  is,  as  has  been  seen,  the  juris- 
diction of  the  orphans'  court  that  is  specifically  in  question, 
and  that  this  court  is  one  of  general  jurisdiction  has,  indeed, 
been  repeatedly  affirmed;^-  but  it  is  obvious  that  the  reasoning 
of  the  opinions  is  equally  applicable  to  the  surrogate,  and  it 
must  be  considered  as  well  settled  that  the  surrogate  also  holds 
such  a  court.  Thus,  in  Quidort  v.  Pergeanx^^  it  was  said  that, 
"like  the  acts  of  all  other  regularly  constituted  tribunals,  the 
acts  of  the  surrogate  cannot  be  impeached  collaterally" ;  and 
this  case  is  cited  in  In  re  Evans^*  as  establishing  the  doctrine 
that  "the  proceedings  of  the  surrogate,  in  admitting  a  will  to 
probate,  are  those  of  a  regularly  established  court,  and  are  to 
be  treated  accordingly,"  and  this  doctrine  has  been  approved  in 
many  cases. ^^ 

And  in  the  very  recent  case  of  Crazvford  v.  Lees^^  Vice 
Chancellor  Leaming.  after  an  extended  review  of  the  history 
and  jurisdiction  of  the  surrogate,  held  that  "a  grant  of  probate 
and  letters  testamentary  made  by  a  surrogate,  which  conforms 
to  the  requirements  of  the  statute  as  to  form  and  proofs,  is  as 
conclusive  as  a  similar  grant  made  by  the  ordinary,"  upon  the 
ground  that,  "in  the  absence  of  fraud  of  the  parties,  a  judg- 
ment of  a  court  of  general  jurisdiction  cannot  be  collaterally 
impeached,  if  the  court  had  jurisdiction  of  the  subject-matter 
of  the  controversy  and  the  parties"  ;  that  the  surrogate's  court 
cannot  "be  regarded  as  a  court  of  inferior  jurisdiction,  when 
considered  in  connection  with  the  duties  which  it  is  required  to 
perform";  and  that  "proceedings  before  the  surrogate  are  here 

i^Obert  V.  Hammel,  i8  N.  J.  L.,  ^^Steele  v.  Queen,  67  N.  J.  L.. 

72).    Den  v.  O'Hanlon,  21  N.  J.  L.,  99.     Ryno  v.  Ryno,  27  N.  J.  Eq., 

582.     Hess  V.  Cole,  23  N.  J.  L.,  522.     Straub's  Case,  49  N.  J.  Eq.. 

116.     Plume  V.  Howard   Savings  264.     Affirmed  50  N.  J.  Eq.,  795. 

Institution,  46  N.  J.  L.,  211.    Py-  Buecker  v.  Carr,  60  N.  J.  Eq.,  300. 

att   V.    Pyatt,   46   N.   J.    Eq.,   285.  In  re  Hodnett.  65  N.  J.  Eq.,  329. 

Clark  V.  Costello.  59  N.  J.  L.,  234.  In  re  Queen,  82  N.  J.  Eq.,  583.    In 

Hohokus    V.    Erie    R.    R.    Co.,    65  re    Whitehead's    Estate,    94    Atl. 

N.  J.  L.,  353-  Rep.,  796. 

i^iS   N.  J.   Eq.,   472.  •«93  Atl.  Rep.,  201. 

1*29  N.  J.  Eq.,  571. 


72  Probate  Law  and  Practice. 

placed  upon  precisely  the  same  plane  as  those  of  the  orphans' 
court,  or  even  common  law  courts  of  general  jurisdiction." 

It  has  been  repeatedly  held  in  this  state,  and  must  be 
regarded  as  settled,  that  the  orphans'  court  has  the  power  to 
correct  and  revoke  its  decrees.^" 

As  regards  the  surrogate,  while  there  has  been  no  express 
decision  upon  the  question,  and,  in  fact,  the  court  in  In  re 
Evans^^  expressly  refrained  from  deciding  it,  it  is  almost 
impossible  to  arrive  at  any  different  conclusion. 

As  has  been  seen  above,  all  the  cases  in  this  state,  wherein 
the  question  of  the  possession  of  the  revisory  power  by  courts 
of  probate  has  been  directly  raised  concerned  the  orphans' 
court;  but  an  examination  of  the  reasons  upon  which  the 
decisions  in  these  cases  have  been  based  clearly  shows  that  they 
apply  with  equal  force  to  the  surrogate's  court.  Thus,  in 
Vincent  v.  Vincenf^  the  Court  of  Chancery  refused  to  set  aside 
probate  as  to  a  complainant,  who  alleged  that  his  authority  to 
a  proctor  to  acknowledge  service  on  his  behalf  had  been 
obtained  by  fraud,  and  said:  "For  the  further  reason  that 
courts  invested  with  jurisdiction  for  probate  have  generally 
power  to  check  and  revise  proceedings  for  probate  tainted  with 
mistake,  fraud,  or  illegality,  a  court  of  equity  will  not  entertain 
jurisdiction  to  set  aside  a  will,  or  the  probate  thereof,  where 
the  fraud  in  the  probate  proceedings  is  such  that  a  probate 
court  itself  has  power  to  give  relief,  this  court  should  not 
undertake  to  control  the  decree  for  probate  by  directing  consent 
to  another  probate.  It  is  settled,  under  our  decisions,  that  the 
orphans'  court  is  a  superior  court  of  general  jurisdiction  in 
probate  and  other  special  cases,  not  an  inferior  court  of  limited 
or  special  jurisdiction.  Where  a  decree  is  entered  in  this  court 
against  a  defendant  on  an  unauthorized  appearance  of  a  solic- 
itor, the  decree  will  be  set  aside  as  against  the  defendant,  on 
motion,  and  the  same  control  over  its  judgments,  or  decrees, 
by  inquiring  into  the  authority  of  its  attorneys  to  appear,  may 
be  exercised  by  every  court  of  general  jurisdiction." 

Moreover,  although,  as  has  been  said  above,  there  has  as  yet 

i^In  re  Clement's  Appeal,  25  N.       cent,  70  N.  J.  Eq.,  272. 
J.  Eq.,  508.     Githens  v.  Goodwin,  '^29  N.  J.  Eq.,  57i- 

32  N.  J.  Eq.,  286.    Vincent  v.  Vin-  ^^70  N.  J.  Eq.,  272. 


Control  of  Decrees.  73 

been  no  express  decision  as  to  the  surrogate's  powers  to  modify 
or  revoke  his  decrees,  there  are  several  dicta  which  show  quite 
clearly  that  our  courts  take  it  for  granted  that  he  has  this 
power.  Thus,  in  Ryno  v.  Ryno'-'^  where  the  question  was  as  to 
probate  which  had  been  granted  by  the  surrogate,  the  Court  of 
Errors  and  Appeals  said:  "If  the  probate  of  the  will  were 
irregular  or  voidable  for  any  cause,  the  remedy  of  the  husband 
was  by  appeal  to  the  ordinary,  or  by  proceeding  for  the  revo- 
cation of  the  letters."  So  in  Straub's  Case,'-^  the  court  said : 
"When  the  time  within  which  appeal  may  be  taken  has  elapsed, 
the  -judgment  (of  the  surrogate)  is  a  finality  until  it  be 
disturljed  by  a  direct  attack  upon  it,  which  should  originate 
before  the  surrogate.'' 

It  must,  then,  be  regarded  as  established  that  both  the 
orphans'  court  and  the  surrogate  have  power  to  open,  review, 
modify,  correct,  vacate  and  set  aside  their  orders  and  decrees, 
when  necessary  to  prevent  a  failure  of  justice. 

''^27  N.  J.  Eq.,  522.  "M9  N.  J.  Eq.,  264.    Affirmed  50 

N.  J.  Eq.,  795- 


CHAPTER  V. 

APPEAL 

FROM  DECREE  OF  SURROGATE. 

General  Provisions. 

Any  person  aggrieved  by  any  order  or  proceeding  of  a  surro- 
gate in  proving  an  inventory  or  granting  letters  of  administra- 
tion, or  of  guardianship  may,  by  filing  a  petition  of  appeal 
with  the  surrogate  within  twenty  days  after  such  order  or 
proceeding,  appeal  therefrom  to  the  orphans'  court,  which 
appeal  the  said  court  shall  hear  in  a  summary  way,  and  afifirm 
or  reverse  the  order  or  proceeding  complained  of,  either  wholly 
or  in  part/  An  appeal  will  not  lie  directly  to  the  prerogative 
court  from  an  order  of  the  surrogate  granting  letters  of  admin- 
istration.- 
From  Probate  of  Will. 

Proceedings  of  surrogates  respecting  the  probate  of  wills 
shall  be  subject  to  appeal  to  the  orphans'  court  by  any  person 
interested,  or  other  person  legally  representing  him,  and  to  pro- 
ceedings thereon,  as  if  the  will  had  not  been  proved ;  provided, 
that  such  appeal  be  made  within  three  months  after  such  pro- 
ceedings before  the  surrogate,  or  within  six  months  after  such 
proceedings  in  cases  where  the  person  appealing  resides  out  of 
t'his  state  at  the  death  of  the  testator.^ 

Method  of  Taking  Appeal. 

Section  201  and  202  of  the  Orphans'  Court  Act*  are  a  part 
of  the  sub-division  of  that  act  which  regulates  appeals  from 
the  surrogate,  and  should  be  read  together  in  determining  the 
method  of  taking  the  appeal.  The  first  section  referred  to 
requires  the  filing  of  a  petition  of  appeal  with  the  surrogate, 
and  limits  the  time  within  which  such  petition  may  be  filed  in 

^Orphans'   Court  Act,   sec.  201.  ^Orphans'   Court   Act,   sec.  202. 

3  Comp.  Stat.,  3888.  3  Comp.  Stat.,  3888. 

2Grissom's   Case,   56  N.  J.  Eq.,  *See  this  page,  supra. 

373- 

74 


Appeal.  75 

the  cases  enumerated  in  that  section.  The  succeeding  section 
provides  for  an  appeal  in  proceedings  regarding  the  probate 
of  wills,  and  extends  the  time  of  appealing  to  three  or  six 
months,  according  to  the  residence  of  the  appellant,  without 
stating  how  the  appeal  shall  be  prosecuted.  As  this  section 
prescribes  no  method  for  taking  the  appeal,  it  would  appear 
that  the  proceeding  set  out  in  section  201  was  intended  to  apply 
to  both  sections,  and  that  an  appeal  from  the  surrogate's  order 
of  probate  must  be  taken  by  a  petition  filed  with  the  surrogate, 
and  not  in  the  orphans'  court. ^ 

In  the  case  of  In  re  Will  of  James  R.  Sayre,  Jr.,  '-"^  a 
notice  of  appeal  was  filed  with  the  surrogate  by  the  appellant 
within  the  time  limited  for  taking  an  appeal,  and  thereafter 
a  petition  of  appeal  was  filed  in  the  orphans'  court,  but  not 
until  the  period  for  taking  an  appeal  had  elapsed.  A  motion 
to  dismiss  the  appeal  was  made  on  the  ground  that  a  petition 
should  have  been  filed  with  the  surrogate  within  the  time  lim- 
ited for  taking  the  appeal,  under  the  terms  of  the  decision  in 
IValdron  v.  Layton.^  The  orphans'  court  of  Essex  County, 
Davis,  J.,  held  that  the  question  before  the  prerogative  court 
in  IValdron  v.  Layton  differed  from  the  question  before  the 
orphans'  court  in  the  case  at  bar,  in  that  in  the  Waldron  case 
neither  the  notice  of  appeal  nor  the  petition  of  appeal  was  filed 
with  the  surrogate ;  and  it  was  further  held  that  the  statement 
in  the  decision  in  the  case  of  IValdron  v.  Layton,  to  the  effect 
that  the  petition  of  appeal  must  be  filed  with  the  surrogate,  and 
not  with  the  orphans'  court,  must  be  considered  as  dictum ;  and 
the  court  declined  to  dismiss  the  appeal.^ 

Subsequent  to  the  decision  in  the  case  of  In  re  Will  of  James 
R  Sayre,  Jr..'^  it  was  provided  by  a  rule  of  the  orphans' 
court  that  in  all  cases  of  an  appeal  from  any  order,  or  decree, 
of  the  surrogate,  the  party  appealing  shall  file  with  the  surro- 
gate a  petition  of  appeal,  addressed  to  the  surrogate,  in  which 
shall  be  briefly  stated  the  order  or  decree  complained  of,  the 
grounds  of  appeal  and  the  names  of  all  persons  concerned;  and 

"Waldron   v.   Layton,  71    N.  J.  ^In  re  Will  of  James  R.  Sayre, 

Eq.,    726.  Jr.,  32  N.  J.  L.  J.,  207. 

5332  N.  J.  L.  J.,  207.  ^332  N.  J.  L.  J.,  207. 

871  N.  J.  Eq..  726. 


76  Probate  Law  and  Practice. 

a  copy  thereof  shall,  within  ten  days  thereafter,  unless  the 
orphans'  court  shall  in  its  discretion  grant  further  time,  be 
served  upon  the  executor,  administrator  or  guardian,  in  case 
of  an  appeal  from  the  probate  of  a  will  or  from  an  order  grant- 
ing letters  of  administration  or  guardianship,  and  in  other  cases 
upon  the  adverse  party.^ 

Appellant  to  Cause  Issue  of  Citation. 

The  appellant  shall,  within  ten  days  after  filing  any  petition 
of  appeal  with  the  surrogate,  unless  the  orphans'  court  shall  for 
good  cause  grant  further  time,  cause  the  surrogate  to  issue  cita- 
tions to  all  the  persons  concerned,  named  in  said  petition  of 
appeal,  to  appear  before  the  orphans'  court  of  the  same  county 
on  a  day  therein  to  be  named  and  shall  cause  said  citation  to 
be  duly  served;  and  the  said  orphans'  court  shall  at  the  time 
and  place  mentioned  in  said  citation,  or  at  such  other  time  or 
place  as  it  may  then  appoint,  hear  and  determine  the  matter 
in  controversy." 

Rights  of  Persons  Cited  on  Appeal. 

The  decree  of  the  surrogate  admitting  a  will  to  probate  oper- 
ates as  a  conclusive  adjudication  which  can  be  avoided  only  by 
an  appeal  taken  within  the  time  allowed  by  the  statute.^"  Pro- 
ceedings under  an  appeal  should  be  confined  to  ascertaining 
and  establishing  the  rights  of  the  party  prosecuting  the  appeal. 
Under  this  statute,  the  proceedings  below  are  made  "subject" 
to  appeal  at  the  option  of  one  qualified  to  exercise  that  right ; 
the  language  used  cannot  be  construed  to  mean  that  all  who 
could,  but  have  not  availed  themselves  of  the  option  within  the 
time  fixed  by  law,  become  joint  appellants,  and  entitled  to  con- 
trol the  action  of  the  diligent  suitor.  The  action  of  the  orphans' 
court  in  issuing  citations  cannot  invest  one  cited  with  any  right 
he  did  not  previously  possess ;  not  having  taken  an  appeal,  his 
right  is  lost,  and  the  citation  cannot  restore  it.  While  the  sec- 
tion of  the  act  under  consideration  does  not  authorize  or  pro- 

^Orphans'  Court  Rule  49,  which      supra. 
became  effective  April  i,  1916,  and  ^Orphans'  Court  Rule  50. 

after  the  decision  of  in  re  Sayre,  ^''See  p.  58,  supra. 


Appeal.  JJ 

vide  for  the  citation  of  parties  whose  rights  have  been  settled 
by  the  decree  of  the  surrogate,  from  which  they  did  not  appeal, 
yet  it  is  quite  proper  that  some  notice  of  the  appeal  should  be 
given  to  such  as  might  be  injured  by  a  reversal  of  the  surro- 
gate's decree  ;  but  when  thus  in  court,  not  having  appealed,  they 
can  only  be  heard  in  support  of  the  decree  below.  To  hold 
otherwise  would  permit  him  who,  for  want  of  an  appeal,  has 
no  standing  in  court,  to  contest  a  decree  from  which  he  has 
taken  no  appeal,  and  to  allow  him  a  right  which  the  law  denies 
to  him,  namely,  that  of  proceeding  on  his  own  behalf. ^^ 

Dismissal  of  Appeal  by  Orphans'  Court. 

The  orphans'  court  has  inherent  jurisdiction  to  dismiss  an 
appeal  from  a  decree  of  a  surrogate  for  lack  of  prosecution,  or 
other  sufficient  cause,  and  may,  with  the  consent  of  appellant, 
dismiss  such  an  appeal  without  notice  to  the  persons  who  have 
been  cited  to  appear,  and  without  hearing  the  subject-matter  of 
the  appeal. ^- 

The  orphans'  court  rules  provide  that  if  appellant  shall  fail 
to  serve  a  copy  of  the  petition  of  appeal  as  provided  in  rule 
49'"  or  shall  fail  to  cause  citation  to  be  issued  by  the  surrogate 
as  provided  in  rule  50,^*  or  shall,  after  citations  are  issued,  fail 
to  cause  the  same  to  be  duly  served  or  fail  to  diligently  prosecute 
his  appeal,  any  party  interested  in  the  proceedings  may  there- 
upon apply  to  the  orphans'  court,  upon  five  days'  notice  to  the 
appellant,  to  dismiss  the  said  appeal,  and  that  court,  may  in  its 
discretion  dismiss  the  said  appeal  with  costs.^^ 

Hearing  on  Appeal. 

On  an  appeal  from  the  surrogate  to  the  orphans'  court,  the 
latter  court  hears  the  matters  dc  novo  as  though  there  had  been 
no  proceedings  before  the  surrogate.  In  the  case  of  an  appeal 
from  the  probate  of  a  will,  the  practice  is  the  same  as  on  a 
caveat.'""'  In    other    cases    the    parties    proceed    as    though 

^^Mary  Hynes'   Case,   69   N.   J.  ^^Pagc  76,  supra. 

Eq.,  485.  Affirmed  71   N.  J.  Kq.,  '^Pape  76,  supra. 

306.  '•''Orphans'   Court   Rule   51. 

'-Mary  Hynes'   Case,   69   N.   J.  '■'•"For  practice  on  caveat  against 

Eq.,  485.  Affirmed  71   N.  J.  Eq.,  proliate  of  a  will,  see  "Contested 

306.  Probate,"  p.  221.  infra. 


78  Probate  Law  and  Practice. 

there  had  been  no  proceedings  before  the  surrogate,  that  is  to 
say;  the  petitioner  before  the  surrogate  examines  his  witnesses, 
who  are  subject  to  cross-examination  on  the  part  of  appellant ; 
after  he  has  rested  his  case,  the  appellant  puts  in  his  case,  after 
which  the  petitioner  is  permitted  to  call  witnesses  in  rebuttal. 

Appeal  From  Surrogate  to  Prerogative  Court. 

All  proceedings  of  surrogates,  from  which  an  appeal  is  not 
provided  for  in  sections  201  and  202  of  the  Orphans'  Court 
Act,^®  shall  be  subject  to  appeal  to  the  prerogative  court  by  any 
persons  interested,  or  other  person  legally  representing  them ; 
provided,  such  appeal  be  made  within  six  months  after  any 
such  proceedings.^" 

PRACTICE  ON  APPEAL. 

Who  May  Appeal. 

As  has  been  seen,^^  the  right  of  appeal  is  given  to  persons 
"interested"  or  "aggrieved."  A  party  aggrieved  or  interested 
is  one  whose  pecuniary  interest  is  directly  affected  by  the 
decree,  or  whose  right  of  property  may  be  established  or 
divested  thereby.^^  An  appeal  will  not  lie  by  a  successful  party 
for  the  purpose  of  having  the  decree  affirmed,  for  the  appel- 
lant is  not  aggrieved  ;-*'  and  for  the  same  reason,  an  appeal  will 
not  lie  from  an  order  made  by  the  consent  of  the  party  appeal- 
ing from  it.-^  An  administrator  pendente  lite  is  not  aggrieved 
by  the  appointment  of  a  permanent  administrator  and  has  no 
standing  to  prosecute  an  appeal  from  such  order  ;-^  but  where 
a  treaty  with  a  foreign  power  confers  upon  the  consul  of  that 
power  the  right  of  administration  upon  estates  of  citizens  of 
that  power  dying  within  the  state,  such  consul  has  the  right  to 

i^Page  74,  supra.  various  subjects  as  "Wills,"  "Ac- 

i^'Orphans'  Court  Act,  sec.  203.  countings,"  &c.  for  appeals  in  par- 

3  Comp.  Stat.,  3888.  ticular  cases. 

i^Page  74,  supra.  ^oGreen  v.  Blackwell,  2>2  N.  J. 

i^Swackhamer  v.  Kline,  25  N.  J.  Eq.,  768. 

Eq.,  503.     Andress  v.  Andress,  46  ^ipembej-ton's    Case,    40    N.    J. 

N.  J.  Eq.,  528.     Young's  Case,  67  Eq.,  520.     Affirmed  41   N.  J.  Eq., 

N.  J.  Eq.,  553.     Conover  v.  Wall-  349. 

ing,   15  N.  J.  Eq..   167.     Dietz  v.  22McKenzie  v.   Minard,  67  Atl. 

Dietz,  38  N.  J.  Eq.,  483.    And  see  Rep.,  936. 


Appeal.  79 

join  in  an  appeal  from  the  surrogate's  order  improperly  grant- 
ing administration  upon  a  decedent's  estate  to  decedent's 
cousin.-^  In  a  suit  by  a  general  legatee  for  his  legacy,  and  in 
suits  by  creditors,  where  the  suit  does  not  involve  the  con- 
struction of  the  residuary  clause  of  the  will,  the  residuary  leg- 
atee is  represented  by  the  executor,  and  has  no  standing  to 
appeal.-* 

In  Young's  Case-''  it  was  questioned  whether  a  person  cited 
upon  an  appeal  from  a  decree  of  the  surrogate,  who  does  not 
appear,  or  who,  appearing,  does  not  intervene,  may  appeal. 
The  status  of  persons  so  cited  was  further  considered  in  a  later 
case  reported  under  the  name  of  Mary  Hynes'  Case"^^  where  it 
was  held  that  such  persons,  having  taken  no  appeal,  have  no 
standing  in  court,  and  can  only  be  heard  in  support  of  the 
decree  below ;  it  would  therefore  seem  to  follow  that  they 
v.'ould  have  no  standing  to  take  an  appeal  except  possibly  in 
case  the  decree  of  the  surrogate  be  reversed  by  the  orphans' 
court. 

Nature  and  Effect  of  Appeal. 

The  constitution  and  the  statute  confer  upon  any  person 
aggrieved  by  a  decree  of  the  surrogate  the  right  to  appeal  to  the 
orphans'  court.  The  nature  and  effect  of  such  an  appeal  must 
be  sought  for  in  the  civil  law,  whence  it  came.  Appeals,  prop- 
erly so-called,  are  a  continuance  of  the  same  case,  being  only 
a  transfer  from  one  court  to  another  for  final  trial  and  judg- 
ment. It  was  a  mode  of  procedure  unknown  to  the  common 
law,  and  only  known  in  England  in  the  Court  of  Chancery, 
whose  mode  of  proceedings  was  borrowed  from  the  Roman 
civil  law.  From  this  source  came  the  practice  in  the  Ecclesias- 
tical court,  which,  except  as  modified,  is  the  practice  of  the 
probate  courts  in  this  state.  The  effect  of  an  appeal  is  to  trans- 
fer the  cause  of  action  to  the  appellate  tribunal.  In  respect  to 
the  matter  appealed  from,  the  transfer  leaves  nothing  in  the 
trial  court  for  subsequent  action ;  all  jurisdiction  of  questions 

23In  re  Estate  of  Wicko  Sinov-  -''67  N.  J.  Eq.,  553. 

cic,  80  N.  J.  Eq.,  260.  =«69  N.  J.  Eq.,  485.    Affirmed  71 

2*Davison  v.  Rake,  45  N.  J.  Eq.,  N.  J.  Eq.,  306. 
767. 


8o  Probate  Law  and  Practice. 

involved  in  litigation  and  embraced  by  the  judgment  terminates 
with  the  removal  of  the  cause  to  the  appellate  tribunal.  The 
loss  of  jurisdiction  is  so  complete  as  to  require  a  party  who 
seeks  relief  from  any  error,  except  an  error  in  making  the 
record,  or  in  omitting  something  from  the  record,  to  appeal  to 
the  higher  courts ;  after  the  case  leaves  the  lower  court,  it  can- 
not act  upon  any  question  involved  in  the  appeal.-' 

The  effect,  therefore,  of  an  appeal  from  the  decree  of  a  pro- 
bate court  is  to  suspend  the  operation  of  the  decree  appealed 
from  ;  and  when  an  appeal  is  taken  from  the  probate  of  a  will, 
the  executors  have  no  power  to  act,  and  the  exercise  of  their 
functions  is  wholly  suspended  until  the  appeal  has  been  deter- 
mined.-® 

APPEAL  FROM  DECREE  OF  ORPHANS'  COURT. 

Who  May  Appeal — Time  for  Taking. 

Any  person  aggrieved  by  order  or  decree  of  the  orphans' 
court,  of  whatever  nature,  may  appeal  from  the  same  to  the 
prerogative  court ;  provided,  that  the  appeal,  if  from  an  order 
or  decree  of  the  court  respecting  the  probate  of  a  will  or  right 
of  administration  or  the  fairness  of  an  inventory,  shall  be 
demanded  within  thirty  days  after  such  order  or  decree,  and  if 
from  any  other  order  or  decree,  the  same  shall  be  demanded 
within  three  months  from  the  making  of  such  order  or  decree, 
unless  otherwise  specially  provided.-^ 

Constitutional  Provisions. 

All  persons  aggrieved  by  any  order,  sentence  or  decree  of 
the  orphans'  court,  may  appeal  from  the  same,  or  from  any  part 
thereof,  to  the  prerogative  court;  but  such  order,  sentence  or 
decree,  shall  not  be  removed  into  the  supreme  court,  or  circuit 
court,  if  the  subject-matter  thereof  be  within  the  jurisdiction 
of  the  orphans'  court. ^° 

-'Hill's  Case.  55  N.  J.  Eq.,  764.  -^Orphans'  Court  Act,  sec.  204. 

28Brown  v.  Ryder,  42  N.  J.  Eq.,       3  Comp.  Stat., 


356.     Bloomfield  v.  Ash,  4  N.  J.  30(3Qnstitution    of    New    Jersey, 

L.,  361.  Kayhart  v.  Whitehead,  77  Article  VI,  section  4,  par.  3.  As 
N.  J.  Eq.,  12  Affirmed,  78  N.  J.  to  who  are  so  aggrieved  as  to  en- 
Eq.,  580.  title    them    to    apeal,    see    "Who 

May  Appeal,"'  page  78,  supra.    . 


Appeal.  8i 

Review  of  Proceedings  of  Orphans'  Court  by  Certiorari. 

Where  the  subject-matter  is  within  the  jurisdiction  of  the 
orphans'  court,  the  matter  may  not  be  removed  to  the  supreme 
court  by  certiorari. ^^ 

Notice  of  Appeal. 

Notice  of  appeal  from  the  order,  sentence  or  decree  of  the 
orphans'  court,  or  from  proceedings  of  any  surrogate,  to  this 
court,  shall  be  filed  with  the  surrogate ;  said  notice  shall  state 
shortly  the  parts  of  the  order  or  decree  appealed  from,  and  a 
copy  thereof  shall,  within  five  days  from  the  filing  thereof, 
unless  the  court  shall  in  its  discretion  grant  further  time,  be 
served  upon  the  adverse  party,  or  upon  his  proctor  if  he 
appeared  by  proctor  in  the  court  below. ^- 

An  appeal  from  a  decree  of  the  orphans'  court  is  made  by 
filing  a  notice  of  appeal  with  the  surrogate  as  clerk  of  that 
court.  The  notice  of  appeal  must  be  in  writing;  an  oral 
announcement  of  an  intention  to  appeal  is  insufficient.^^ 

Appointment  of  Guardian  Ad  Litem  for  Infant  Party. 

Where  any  respondent  is  a  minor,  if  he  does  not  procure  a 
guardian  ad  litem,  upon  the  appeal  to  be  appointed  within  five 
days  after  the  service  upon  him  of  the  notice  of  appeal,  the 
appellant  may  apply  to  the  prerogative  court  ex  parte  for  the 
appointment  of  such  guardian,  which  application  shall  be  pur- 
suant to  the  provision  of  rule  fifty-four.^* 

TIME  WITHIN  WHICH  APPEAL   MUST   BE   TAKEN. 
Computation  of  Time. 

The  limitation  of  time  within  which  an  appeal  is  to  be  taken 
applies,  not  to  the  filing  of  the  petition  of  appeal  in  the  prerog- 
ative court,  but  to  the  demanding  and  filing  of  notice  of  the 
appeal  with  the  surrogate.^^     The  time  is  to  be  computed,  not 

3' Carroll  v.  Baxter,  65  N.  J.  L.,  Gloucester  City  v.  Greene,  45  N.  J. 

478.  Eq.,  747- 

^^Prerogative  Court  Rule  59.  ''^^^^^   ^^'   '"P''^'      Prerogative 

33Hillyer  V.    Schcnck,    15   N.  J.  ^""""^  ^"^^  ^7. 

Eq.,  398.    S.  C.  on  appeal,  ib..  501.  '"^^^'^  ""■  "^'"'-^''  4  N.  J.  Eq.. 

Claypool  V.  Norcross,  36  N.  J.  Eq..  ^^^-     ^'"y^""  ^-  Schcnck,  15  N.  J. 

524.     Affirmed  37  N.  J.  Eq.,  261  Eq.,  398.    S.  C.  on  appeal,  ib.,  501. 

7 


82  Probate  Law  and  Practice. 

from  the  date  of  the  announcement  of  the  decision  of  the  court, 
but  from  the  time  the  decree  is  reduced  to  writing,  signed  and 
filed,  and  entered  upon  the  minutes  of  the  court  f^  and  the 
decree  is  not  legally  filed  until  the  certificate  of  filing  is  signed 
by  the  surrogate.^'  Where  the  court,  at  the  time  of  announc- 
ing its  decision,  in  the  presence  of  the  proctor  of  the  party 
aggrieved,  fixes  a  day  for  the  signing  of  the  decree,  at  which 
time  the  decree  was  actually  signed  and  filed,  no  actual  notice 
of  the  signing  of  the  decree  is  necessary,  nor  is  it  material 
whether  the  party  aggrieved,  or  her  proctor,  were  actually  in 
court  when  the  decree  was  signed. ^^ 

In  case  a  decree  is  amended,  the  time  limit  for  taking  an 
appeal  from  the  portions  of  the  decree  which  were  not  amended 
runs  from  the  entry  of  the  decree,  while  the  time  for  taking  an 
appeal  from  the  amended  portions  of  the  decree  runs  from  the 
entry  of  the  amended  decree.^® 

From  Order  Respecting  Right  of  Administration. 

An  appeal  from  a  decree  of  the  orphans'  court  revoking 
letters  of  administration  and  granting  new  letters  to  the  same 
person  must  be  taken  within  thirty  days,  although  no  new 
application  for  letters  be  made  and  no  citations  be  issued  for 
parties  to  come  in  and  be  heard. *° 

From  Decree  Allowing  Counsel  Fees. 

An  appeal  from  a  portion  of  a  decree,  admitting  a  will  to 
probate,  which  awards  costs  and  counsel  fees,  must  be  taken 
within  thirty  days  from  the  entry  of  the  decree.*^  The 
provisions  of  a  decree,  admitting  a  will  to  probate  after  a  con- 
test thereon,  allowing  costs  and  counsel  fees,  are  parts  of  the 
decree  for  the  probate  of  the  will,  from  which  an  appeal  must 
be  taken  within  thirty  days  after  entering.*- 


s^Hillyer  v.  Schenck,  15  N.  J 
Eq.,  398.  S.  C.  on  appeal,  ib.,  501 
Mount  V.  Slack,  39  N.  J.  Eq.,  230- 
Young  V.  Young,  32  N.  J.  Eq,.  275 

^^Young    V.    Young.    32    N.    J 


39Hoit  V.  Hoit,  40  N.  J.  Eq.,  551. 
Reversed,  42  N.  J.  Eq.,  388. 

4"Delany  v.  Noble,  3  N.  J.  Eq., 
559- 

*^Hoit  V.  Hoit,  40  N.  J.  Eq.,  551. 


Eq.,  275.  Reversed  42  N.  J.  Eq.,  388. 

38Hillyer  v.   Schenck,    15   N.  J.  ^^Hoit   v.    Hoit,   40   N.   J.    Eq., 

Eq.,  398.    S.  C.  on  appeal,  ib.,  501.      551.    Reversed  42  N.  J.  Eq.,  388. 


Appeal.  83 

Effect  of  Not  Demanding  Appeal  Within  Time  Limited. 

The  right  of  appeal  is  conditional  upon  its  being  demanded 
within  the  time  limited  by  the  statute.  Unless  an  appeal  is 
demanded  within  the  period  fixed  by  the  statute,  the  right  of 
appeal  will  be  lost  forever  ;^^  and  where  a  party  has  failed 
to  comply  with  the  statutory  provision  as  to  the  time  for  appeal, 
his  right  of  appeal  cannot  be  revived  by  re-entering  the  decree 
in  order  to  enable  him  to  appeal.  Where,  however,  by  the  neg- 
lect of  the  surrogate  a  decree  was  not  filed,  and  appellant  was 
in  ignorance  of  its  existence  until  after  the  time  limited  for 
taking  an  appeal,  his  right  of  appeal  will  not  be  lost ;"  and 
where  a  decree  was  duly  filed  with  the  surrogate,  and  misplaced 
by  him  and  the  evidence  showed  that  the  surrogate  had  been 
frequently  applied  to  by  the  proctor  of  the  appellants,  and  in 
ignorance  or  forgetfulness  of  the  order  had  informed  him  that 
no  order  in  the  case  had  been  made,  and  careful  search  for  the 
order  was  also  made  in  the  surrogate's  office  by  the  surrogate 
and  proctor,  it  was  held  that,  while  the  orphans'  court  had  no 
power  to  direct  the  order  to  be  re-filed,  so  as  to  extend  the  time 
for  appealing,  nevertheless  the  appellant  could  not  by  a  mis- 
take of  the  surrogate  be  deprived  of  his  right  of  appeal.*^ 

Court  May  Relieve  Appellant  in  Laches. 

The  time  of  filing  the  petition  of  appeal  is  regulated  by  rule 
of  court;  and  whenever  the  rule  has  not  been  complied  with, 
the  court  may,  in  its  discretion,  release  the  party  from  the 
effect  of  his  laches.**' 

PROCEEDINGS    IN    THE    PREROGATIVE    COURT. 

Proctor  and  Counsel. 

On  appeal  to  the  prerogative  court  from  the  order,  sentence 
or  decree  of  the  orphans'  court,  or  from  the  proceedings  of 

*"Hillyer   v.    Schenck,    15   N.   J.  Eq.,   523. 

Eq.,  398-401.     S.  C.  on  appeal,  ib.,  *-''Mount  v.  Van  Ness,  34  N.  J. 

501.      Claypool    V.    Norcross,    36  Eq.,    523. 

N.  J.  Eq.,  524.     Affirmed  Z"]  N.  J.  ^"Hillyer   v.    Schenck,    15   N.   J. 

Eq.,     261.       Gloucester     City     v.  Eq.,   398.       S.    C.    on    appeal,    ib., 

Greene,  45  N.  J.  Eq.,  747-751-  501. 

**Mount  V.  Van  Ness,  34  N.  J. 


84  Probate  Law  and  Practice. 

any  surrogate,  the  proceedings  shall  be  conducted  by  proctor 
and  counsel,  and  by  guardians  ad  litem  of  minors,  according  to 
the  practice  of  the  court  of  chancery,  except  as  hereinafter 
specified.*^ 

Petition  of  Appeal. 

In  all  cases  of  appeal  to  the  prerogative  court  from  any 
order,  sentence  or  decree  of  the  orphans'  court,  or  from  the  pro- 
ceedings of  any  surrogate,  the  party  appealing  shall,  within 
thirty  days  after  filing  his  notice  of  appeal  with  the  surrogate, 
unless  this  count  shall  in  its  discretion  grant  further  time, 
file  his  petition  of  appeal  with  the  register  of  this  court,  and 
shall  within  five  days  after  filing  the  same  serve  a  copy 
thereof  on  the  adverse  party,  or  upon  his  proctor  if  he  appeared 
by  proctor  in  the  court  below,  or  the  appeal  shall  be  considered 
as  waived ;  and  any  party  interested  in  the  proceedings  in  the 
court  below  may  thereupon  apply  to  this  court  to  dismiss  the 
appeal  with  costs.*^ 

Practice  on  Appeal  from  Decree  on  Account. 

Where  the  appeal  is  from  the  sentence  or  decree,  of  the 
orphans'  court  on  the  settlement  of  the  account  of  an  executor, 
administrator,  guardian  or  trustee,  if  the  appellant  wishes  to 
review  the  decision  of  the  orphans'  court  as  to  the  allowance 
or  rejection  of  any  particular  items  of  the  account,  such  items 
shall  be  specified  in  the  petition  of  appeal,  or  the  allowance  or 
disallowance  of  any  such  item  shall  not  be  considered  a  suffi- 
cient ground  for  reversing  or  modifying  the  sentence  or  decree, 
appealed  from.  The  respondent,  in  his  answer  to  the  petition 
of  appeal  in  such  cases,  may  also  specify  any  items  in  the 
account  as  to  which  he  supposes  the  sentence  or  decree  is  erro- 
neous as  against  him  and  in  favor  of  the  appellant ;  and  upon 
the  hearing  of  the  parties  upon  such  appeal,  the  sentence  or 
decree  of  the  orphans'  court  may  be  modified,  as  to  any  such 
items,  in  the  same  manner  as  if  a  cross-appeal  had  been  brought 
by  such  respondent.*^ 


^''Prerogative  Court  Rule  58.  ^^Prerogative  Court  Rule  62. 

^^Prerogative  Court  Rule  60. 


Appeal.  85 

Petitions  To  Be  Addressed  To  Ordinary. 

All  petitions  should  be  addressed  to  the  ordinary.'**" 

Character  of  Paper  and  Typewriting. 

Every  petition  and  other  pleading,  and  all  orders  and  papers 
of  every  nature  intended  to  be  hied  in  any  proceeding  shall  be 
printed,  or  fairly  and  legibly  written  by  pen,  or  by  typewriter 
with  what  is  known  as  a  "black  record  ribbon,"  and  the  paper 
upon  which  said  pleadings  or  orders,  are  printed,  or  written, 
shall  weigh  at  least  seven  pounds  to  the  ream  of  five  hundred 
sheets.^^ 

Entitling  Cause  on  Appeal. 

Upon  the  removal  of  any  cause  or  proceeding  from  any 
court  to  a  court  of  appellate  jurisdiction,  in  this  state,  whether 
by  writ  of  error,  writ  of  certiorari,  appeal,  or  otherwise,  the 
title  of  the  cause  or  proceeding  as  originally  instituted  shall  be 
retained,  the  character  in  which  the  parties  appear  in  the  writ 
of  error,  writ  of  certiorari,  appeal,  or  other  proceeding,  being 
described  after  their  names  respectively. ^- 

What  Petition  Must  Allege. 

The  petition  of  appeal  shall  be  addressed  to  the  prerogative 
court,  shall  briefly  state  the  general  nature  of  the  proceedings 
in  the  court  below,  and  shall  specify  the  part  or  parts  thereof 
complained  of  as  erroneous,  except  where  the  whole  sentence, 
order  or  decree  is  alleged  to  be  erroneous,  in  which  case  it  shall 
be  sufficient  to  state  that  the  same  and  every  part  thereof,  is 
erroneous. ^^ 

A  matter  not  presented  in  the  notice  of  appeal  or  petition  of 
appeal  from  a  decree  upon  exceptions  to  an  administrator'? 
account  cannot  be  considered.''* 

Amendment  of  Petition. 

An  amendment  of  the  petition  may  be  allowed  on  terms."' 

^oPrerogative  Court  Rule  2.  ^^Frey's  Case,  72,  N.  J.  Eq.,  346. 

'^iPrerogative  Court  Rule  3.  '^^Embley  v.  Hunt,  28  N.  J.  Eq., 

52?.  L.  1900,  p.  72,  sec.  I.  421. 
''^Prerogative  Court  Rule  61. 


86  Pkobate  Law  and  Practice. 

Deposit  on  Appeal. 

In  all  cases  of  appeal  from  any  order,  sentence  or  decree 
of  the  orphans'  court,  or  proceedings  of  any  surrogate,  the 
party  appealing  shall,  within  ten  days  after  filing  his  petition 
of  appeal  in  this  court,  deposit  with  the  register  one  hundred 
dollars,  to  answer  the  costs  of  the  appeal  if  the  appellant  shall 
not  prosecute  the  same  with  effect ;  and  in  default  thereof,  the 
said  appeal  may  be  dismissed  by  this  court  with  costs.^*^ 

Appellant  to  File  Transcript. 

The  party  appealing  shall  cause  a  transcript  of  all  the  pro- 
ceedings before  the  orphans'  court  or  surrogate  to  be  made 
authenticated  and  returned  to  this  court  within  thirty  days 
from  the  time  of  filing  the  notice  of  appeal  in  the  court  below, 
unless  further  time  is  allowed  by  this  court,  and  in  default 
thereof,  the  court  may  dismiss  the  appeal.^' 

What  Transcript  to  Contain. 

The  depositions  taken  in  the  lower  court  should  be  sent  up 
with  the  other  papers  ;°**  but  on  an  appeal  from  an  order  of  the 
orphans'  court,  it  is  improper  for  the  appellant  to  annex  to 
the  record  the  argument  of  counsel."'^'* 

When  Transcript  Required  to  be  Printed  and  Served. 

In  case  of  appeal  to  the  prerogative  court  from  a  sentence  or 
decree  of  the  orphans'  court,  the  party  appealing  shall  cause 
the  evidence  which  has  been  reduced  to  writing  in  the  court 
below  and  all  exhibits,  decrees,  orders,  petitions,  accounts  and 
other  papers  necessary  to  the  presentation  of  the  question  at 
issue,  if  they  together  exceed  one  hundred  folios  in  length,  to 
be  printed,  or  typewritten  if  the  court  shall  so  order,  and  shall 
deliver  a  copy  thereof  to  the  ordinary,  and  a  copy  to  each  op- 
posing party,  at  least  twenty  days  before  the  time  of  hearing 
the  appeal;  and  on  failure  thereof,  the  appeal  may  be  dis- 
missed.*'*' 

•■'•^Prerogative  Court  Rule  63.  -"^^Acker's    Case,    70    N.    J.    Eq.. 

^'Prerogative  Court  Rule  64.  669. 

ssRead  v.   Drake,  2   N.  J.   Eq..  '"'Prerogative  Court  Rule  65. 

78.     Clark  V.  Haines.  4  N.  J.  Eq., 
136. 


Appeal.  87 

Answer  to  Petition  of  Appeal. 

The  respondent  shall  file  an  answer  to  the  petition  of  appeal 
within  fifteen  days  after  the  service  of  a  copy  of  said  petition 
of  appeal ;  and  in  default  thereof,  upon  proof  by  affidavit  of 
the  service  of  the  petition  of  appeal  upon  respondent,  or  his 
proctor  if  he  has  appeared,  either  in  the  prerogative  court,  or 
the  court  below,  by  a  proctor  of  the  prerogative  court,  the  ap- 
pellant may  have  an  order  of  course  that  the  appeal  be  heard 
c.v  parte  as  against  such  respondent.'"'^ 

Who  Must  Join  in  Answer. 

An  executor  who  has  formally  renounced  need  not  join  in 
the  answer  to  a  petition  of  appeal  from  a  decree  of  the  orphans' 
court  admitting  the  will  to  probate. ''- 

Matters  Which  Need  not  be  Admitted  by  Answer. 

An  answer  need  not  expressly  admit  the  taking  of  the  ap- 
peal.®^ 

DISMISSAL  OF  APPEAL. 

Jurisdiction  of  Court. 

The  validity  of  an  appeal  is  to  be  decided  by  the  appellate 
tribunal,  so  that  a  notice  to  dismiss  an  appeal  from  the  orphans' 
court  should  be  addressed  to  the  prerogative  court.*^*  The  pre- 
rogative court  has  general  power  to  dismiss  an  appeal  for  fail- 
ure to  prosecute,  because  the  appeal  was  not  taken  in  time,  or 
for  any  other  cause  touching  the  validity  of  the  appeal ;  and  so 
when  an  appeal  is  taken  from  an  order  or  decree  which  is  in- 
operative, and  a  reversal  of  which  would  be  nugatory,  the  ap- 
peal will  be  dismissed.**^ 

When  Application  may  be  Made. 

The  general  rule  is  well  established  that  an  appellant  may 
have  his  appeal  dismissed  at  any  time  while  the  case  remains 
within  the  jurisdiction  of  the  appellate  court,  without  notice 

^^Prerogative  Court  Rule  66.  *'*Hillyer  v.   Schenck,    15   N.   J. 

•■'^Embley  v.  Hunt,  28  N.  J.  Eq.,  Eq.,  398.    S.  C.  on  appeal,  ib.,  501. 

421.  ^^Gloucester  City  v.  Greene,  45 

o^Embley  v.  Hunt,  28  N.  J.  Eq.,  N.  J.  Eq..  747. 
421. 


88  Probate  Law  and  Practice. 

to  the  persons  who  have  been  cited  to  appear  upon  such  terms 
as  to  costs  as  may  be  lawfully  imposed;"'^  but  an  objection  to 
the  timeliness  of  an  appeal  to  the  prerogative  court  from  a 
decree  of  the  orphans'  court  surcharging  an  executrix's  ac- 
count with  certain  money  comes  too  late  after  the  evidence  has 
been  taken,  although  an  untimely  motion  to  dismiss  the  appeal 
has  been  made  and  refused."^ 

Notice  of  Motion  to  Dismiss  Appeal. 

No  motion  to  dismiss  an  appeal  in  the  prerogative  court  shall 
be  heard,  unless  five  days'  notice  of  such  motion  has  been 
given,  or  unless  moved  in  the  presence  of  the  appellant  or  his 
proctor.®® 

For  Failure  to  File  and  Serve  Petition  of  Appeal. 

If  appellant  fails  to  file  his  petition  of  appeal  within  thirty 
days  after  filing  his  notice  of  appeal,  or  to  serve  the  said  peti- 
tion of  appeal  within  five  days  after  filing  the  same,  the  ordi- 
nary may  dismiss  the  appeal  with  costs.®® 

For  Failure  to  Make  Deposit. 

If  appellant  fails  to  make  deposit  with  the  register  of  the 
prerogative  court  of  one  hundred  dollars  to  answer  costs  of 
appeal  within  ten  days  after  filing  his  petition  of  appeal,  the 
appeal  may  be  dismissed  with  costs.'^" 

For  Failure  to  File  Transcript. 

If  appellant  fails  to  cause  a  duly  authenticated  transcript  of 
the  proceedings  in  the  court  below  to  be  returned  to  the  prerog- 
ative court  within  thirty  days  from  the  time  of  filing  the  no- 
tice of  appeal  in  the  court  below,  unless  further  time  is  allowed 
by  the  prerogative  court,  the  ordinary  may  dismiss  the  appeal. '^^ 

While  the  court  has  the  power  to  dismiss  an  appeal  because 
the  transcript  is  not  filed  in  time,  the  ordinary  is  not  required 

®^Mary  Hyne's   Case,   69   N.  J.  see  "Court  May  Relieve  Appellant 

Eq.,  485.     Affirmed  71   N.  J.  Eq.,  in  Laches,"  page  83.  supra. 

306.  "^Prerogative  Court  Rule  63,  p. 

e^Carlin     v.     Carlin,     64     Atl.,  86.  supra. 

Rep.,  1018.  '■^Prerogative  Court  Rule  64,  p. 

^^Prerogative  Court  Rule  68.  86,  supra. 

^^Prerogative  Court  Rule  60,  but 


Appeal.  89 

to  exercise  that  power  unless  he  is  satisfied  that  it  should  be 
done.  This  power  is,  moreover,  rarely  exercised  for  a  slight 
lapse  from  conformity  to  the  rule,  if  there  has  been  disclosed 
on  the  part  of  appellant  a  disposition  to  prosecute  his  appeal 
diligently,  and  there  appears  to  be  some  ground  for  a  review 
of  the  order  complained  of'- 

For  Failure  to  Print  and  Serve  Transcript. 

If  appellant  fail  to  print  and  serve  the  transcript  of  proceed- 
ings in  the  court  below  at  least  twenty  days  before  the  time  of 
hearing  the  appeal,  the  appeal  may  be  dismissed.'^ 

DETERMINATION  AND  DISPOSITION  OF  CAUSE. 

Jurisdiction  of  Court. 

The  jurisdiction  of  the  prerogative  court,  on  appeal  from  a 
decree  of  the  orphans'  court,  in  those  classes  of  cases  in  which 
the  prerogative  court  has  original,  as  well  as  appellate,  juris- 
diction, is  not  limited  to  a  review  of  the  propriety  of  the  decree 
of  the  orphans'  court;  but  the  whole  controversy  is  presented 
to  the  prerogative  court  as  an  original  question  to  be  deter- 
mined, either  upon  the  evidence  taken  before  the  orphans' 
court,  or  upon  that  evidence  supplemented  by  other  proofs,  or 
upon  entirely  new  proofs,  in  the  discretion  of  the  court,'*  and 
the  deposition  of  a  subscribing  witness  made  before  the  surro- 
gate in  proving  a  will  also  constitutes  part  of  the  evidence 
which  may  be  considered  on  an  appeal,  and  such  a  deposition, 
when  supported  by  a  perfect  attestation  clause  raises  a  strong 
presumption  of  the  due  execution  of  the  will.^*^  The  proceed- 
ing in  the  prerogative  court  is  in  effect  a  trial  de  novo.'-'  It 
naturally  follows  that  on  an  appeal  to  the  prerogative  court 
that  court  is  required  to  review  not  only  questions  of  law  but 


'2McKenzie  v.   Minard,  67  Atl.  "*aFarley  v.  Farley,  50  N.  J.  Eq., 

Rep.,  936.  434.     Ludlow  V.  Ludlow,  36  N.  J. 

"Prerogative    Court    Rule    65,  Eq.,  597,  602.     Beggan's  Case,  68 

p.  86,  supra.  N.  J.   Eq.,   572. 

^*Rusling  V.   Rusling,  36  N.  J.  ^^Kayhart  v.  Whitehead,  77  N. 

Eq.,  603.     Smith  v.   Smith,  48  N.  J.  Eq.,  12.    Affirmed,  78  N.  J.  Eq., 

J.   Eq.,   566.  580. 


90  Probate  Law  and  Practice. 

also  questions  of  fact.'''  Thus,  as  has  already  been  seen,  on 
an  appeal  from  a  decree  of  the  orphans'  court  founded  upon 
the  findings  of  a  jury  on  an  application  for  probate  of  a  will, 
the  ordinary  may  try  the  case  de  novo  and  order  additional 
testimony  taken  for  use  on  the  appeal." 

As  has  been  seen,  an  appeal  to  the  prerogative  court  from  a 
decree  of  the  orphans'  court  is  in  effect  a  trial  de  novo,  upon 
which  additional  testimony  may  be  taken,  if  the  circumstances 
of  the  case  warrant  it.  Where,  therefore,  an  appeal  is  taken 
from  a  decree  of  the  orphans'  court  granting  letters  of  adminis- 
tration or  of  guardianship,  and  new  testimony  is  taken  in  the 
prerogative  court,  and  that  court  does  not  approve  the  appoint- 
ment made  by  the  court  below,  the  prerogative  court  will  not 
usually  send  the  record  back  to  the  orphans'  court,  but  will 
complete  the  judicial  act  in  that  court,  and  make  its  own  ap- 
pointment." 

Where  an  order  combines  two  adjudications,  one  appealable 
and  the  other  not,  an  appeal  will  lie  from  the  entire  order ; 
but  the  appellate  court  will  consider  only  that  adjudication 
from  which  an  appeal  will  lie.'° 

When    Court    Will    Permit    Additional    Testimony    to    be 
Taken. 

It  has  already  been  seen  that  an  appeal  to  the  prerogative 
court  from  a  decree  of  the  orphans'  court,  in  a  matter  in  which 
the  prerogative  court  has  original  jurisdiction,  is  in  effect  a 
trial  de  novo.  The  prerogative  court  may  therefore,  in  this 
class  of  cases,  in  its  discretion,  permit  new  testimony  to  be 
taken  and  used  on  the  hearing  of  the  appeal. ^°  Where  it  ap- 
pears that  the  order  appealed  from  was  a  surprise  to  appel- 
lant, that  is  sufficient  ground  for  permitting  him  to  take  new 

^^Morris'    Case,    65    N.    J.    Eq.,  566.     Read  v.  Drake,  2  N.  J.  Eq., 

699.  78.     Sayre  v.  Sayre,  16  N.  J.  Eq., 

^'^See    "Jurisdiction    of    Court,"  505.     Rusling  v.  Rusling,  36  N.  J. 

p.  89,  supra.  Eq.,  603.     Personette  v.  Johnson, 

78Read  v.  Drake,  2  N.  J.  Eq.,  78.  40  N.  J.  Eq.,  173.    White  v.  Starr, 

Hill's  Case,  55  N.  J.  Eq.,  764.  47    N.    J.    Eq.,    244.      Kayhart    v. 

'^Podesta   v.    Aloody,   69   N.   J.  Whitehead,  yy  N.  J.  Eq.,  12.    Af- 

Eq.,  468.  firmed,  78  N.  J.  Eq.,  580. 

soSmith  V.  Smith,  48  N.  J.  Eq., 


Appeal.  91 

testimony;®^  so  where  the  omission  to  put  in  evidence  before 
the  orphans'  court  was  due  to  the  mistaken  belief  of  counsel 
that  there  was  no  necessity  for  it  f-  so  in  case  of  newly  dis- 
covered evidence  f^  and  so  where  the  orphans'  court  rejected 
competent  testimony.®*  So  an  inquiry  whether  a  guardian  has 
made  use  of  a  balance  due  his  wards  on  the  filing  of  his  ac- 
counts, may  be  made  in  the  prerogative  court. ®^  But  where,  in 
the  orphans'  court,  counsel  for  caveators,  on  being  asked  by  the 
court  the  ground  of  their  contest  of  the  will,  stated  that  they 
would  prove  lack  of  testamentary  capacity  and  undue  influence, 
but  introduced  no  such  evidence,  and  on  entry  of  a  decree  ad- 
mitting the  will  to  probate  took  an  appeal,  they  may  not,  on  the 
overruling  of  their  claim  that  the  proof  of  execution  is  defec- 
tive, and  the  affirmance  of  the  decree,  be  allowed  to  put  in 
proof  of  lack  of  testamentary  capacity  and  undue  influence.®" 

The  rule  under  consideration,  however,  applies  as  has  been 
said,  only  to  that  class  of  cases  in  which  the  prerogative  court 
has  original  as  well  as  appellate  jurisdiction;®'  and  so,  there 
being  no  original  jurisdiction  in  the  prerogative  court  to  ap- 
prove sales  by  administrators  with  the  will  annexed,  additional 
proofs  in  that  court  are  not  admissible,  and  an  appeal  from  the 
orphans'  court  must  be  decided  upon  the  evidence  before  that 
court.®® 

Where  one  party  is  permitted  to  take  further  testimony,  his 
opponent  should  be  permitted  to  produce  evidence  in  rebuttal. ®® 

Considerations  Governing  Determination  of  Cause. 

In  deciding  a  cause  brought  before  the  prerogative  court  by 
appeal,  that  court,  in  determining  questions  of  fact,  will  give 

^'Personette  v.  Johnson,  40  N.  ^''Saj-re  v.  Sayre,   16  N.  J.  Eq., 

J.  Eq.,  173.  505-508.    Rusling  v.  Rusling,  36  N. 

"-White  V.  Starr,  47  N.  J.  Eq.,  J.  Eq.,  603-605.     Heisler  v.  Sharp, 

244-263.  44   N.   J.    Eq.,    167.     Affirmed   45 

**"White  V.  Starr,  47  N.  J.  Eq.,  N.  J.  Eq.,  367.     In  re  Devine,  62 

244-263.  N.  J.  Eq.,  703. 

^*Reeve  v.   Townsend,   8   N.  J.  ^'^In    re    Devine,   62    N.   J.    Eq., 

Eq.,  81.  703. 

85In  re  Mott,  26  N.  J.  Eq.,  509.  s^Reeve   v.   Townsend,   8   N.   J. 

""Bogert    V.    Bateman,    65    Atl.  Eq.,  81.    Tucker  v.  Tucker,  28  N. 

Rep.  238.  J.  Eq.,  223. 


92  Probate  Law  and  Practice. 

great  weight  to  the  fact  that  the  court  below  had  the  advantage 
of  seeing  and  hearing  the  witnesses,  and  of  being  able  thereby 
intelligently  to  determin-e  what  credit  should  be  given  to  their 
statements ;  and  under  such  circumstances  the  court  will  not 
reverse  a  decree,  unless  it  is  clear  that  the  court  below  erred  in 
the  conclusion  it  reached  upon  the  evidence.^"  The  rule  is  set- 
tled that  the  prerogative  court  should  not  set  aside  the  findings 
of  the  trial  court  as  erroneous,  unless  clearly  convinced  of 
error."^ 

A  decree  of  the  orphans'  court  should  not  be  reversed  sim- 
ply on  the  ground  of  irregularity  in  the  proceeding  resulting 
in  the  decree,  in  a  case  where  it  is  entirely  clear  that  the  ap- 
pellant has  suffered  no  injustice  or  loss  by  reason  of  such  ir- 
regularity.^- 

COSTS  AND  COUNSEL  FEES. 

Jurisdiction. 

The  practice  in  the  prerogative  court  of  allowing  costs  and 
reasonable  fees  to  be  paid  out  of  the  estate  for  services  ren- 
dered for  the  benefit  of  those  who  take  the  fund,  and  who 
should  in  equity  contribute  toward  the  payment  of  the  same, 
seems  to  be  established.^^  So  on  an  appeal  by  an  executor 
from  a  decree  disallowing  his  claim  for  services,  upon  excep- 
tions taken  by  one  of  the  heirs,  the  costs  of  the  respondent, 
including  a  reasonable  counsel  fee,  will  be  allowed  out  of  the 
estate,  his  action  having  been  for  the  advantage  of  the  estate.^* 

In  a  case  where  a  surviving  aunt  and  certain  first  cousins  of 
an  intestate  decedent  appealed  from  an  erroneous  decree  of  the 
orphans'  court  awarding  distribution  of  a  moiety  of  the  de- 
cedent's personal  property  to  grand-nephews,  with  the  result 
that  distribution  was  made  to  four  surviving  uncles  and  aunts 
and  the  representatives  of  fourteen  deceased  uncles  and  aunts, 

^''Gunn  V.  Early,  71   N.  J.  Eq.,  ^^Munn's  Ex.  v.  Munn,  20  N.  J. 

717.  Eq.,  472.     Smith  v.  McDonald,  69 

91-Wright  V.  Flynn,  69  N.  J.  Eq.,  N.  J.  Eq.,  765.    Affirmed  71  N.  J. 

753.    Gunn  V.  Early,  71  N.  J.  Eq.,  Eq.,  261. 

717.  ^•iMunn  V.  Munn,  20  N.  J.  Eq., 

92Davison  v.  Rake,  44  N.  J.  Eq.,  472. 
506.     Affirmed  45  N.  J.  Eq.,  767. 


Appeal.  93 

and  the  grand-nephews  were  exckided,  it  was  held  that,  as  the 
services  of  counsel  in  overthrowing  the  decree  of  the  orphans' 
court  and  estabHshing  the  right  to  participate  in  the  distribution 
of  the  decedent's  estate  by  this  large  class  of  kindred  were 
rendered  for  the  benefit  of  all,  his  compensation  should  not  fall 
upon  the  few  who  had  sustained  the  issue  for  the  benefit  of  the 
many,  but  that  his  fee  should  be  paid  out  of  the  fund.^^ 

The  prerogative  court,  on  an  unsuccessful  appeal  from  the 
refusal  by  the  orphans'  court  of  probate  of  a  will,  has  no  power 
to  allow  proponent  counsel  fees  in  the  appellate  court-^" 

When  Costs  Will  be  Denied, 

Where  the  law  involved  is  so  well  settled  that  there  appears 
to  be  no  good  ground  for  appealing  from  a  decree  granting 
probate  of  a  will,  the  court  will  not  allow  costs  or  counsel  fees 
to  appellant.'*'  So  where  the  orphans'  court  decided  that  an 
unsuccessful  contestant  of  the  probate  of  a  will  had  reasonable 
cause  for  the  contest,  and  ordered  the  costs  to  be  paid  out  of 
the  estate  of  testator,  and  the  proponent  of  the  will  did  not  ap- 
peal therefrom,  and  no  reasonable  cause  existed  for  protracting 
the  contest  by  an  appeal  to  the  prerogative  court,  the  costs  and 
expenses  of  such  an  appeal  will  not  be  paid  from  the  estate  f^ 
and  where  an  appeal  from  a  decree  sustaining  exceptions  to  an 
account  is  in  the  interest  of  the  trustee  individually,  or  that  of 
his  wife,  no  costs  will  be  allowed  in  the  prerogative  court  on 
such  appeal. ^^ 

When  Unnecessary  Testimony  Taken. 

Where  an  order  to  take  testimony  to  be  used  on  the  hearing 
of  an  appeal  specified  on  what  points  it  should  be  taken,  and 
the  respondents  nevertheless  caused  considerable  irrelevant 
testimony  to  be  taken  and  printed,  against  the  objection  of  ap- 
pellant, it  was  held  that  respondent  should  pay  the  costs  there- 
of.^   So  where  testator's  mental  competency  was  clearly  estab- 

ssShedaker's  Case,  74  N.  J.  Eq..  a^In    re    Claus's    Will,    54    Atl. 

802.  Rep.,  824. 

»«Skillman    v.    Lanehart,    73    N.  9»Morton's  Case,  74  N.  J.   F.q.. 

J.  Eq.,  351.  797- 

^'McCurdy   v.    Neall,    42    N.   J.  'Personette  v.  Johnson,  40  N.  J. 

Eq..  333-  P^n-  532. 


94  Probate  Law  and  Practice. 

lished  early  in  the  hearing  before  the  orphans'  court,  but  a 
mass  of  testimony  was  subsequently  taken  before  that  court, 
covering  over  2,000  printed  pages,  much  of  it  irrelevant,  unim- 
portant and  taken  with  needless  prolixity,  appellant  was  de- 
creed to  pay  the  costs  of  the  respondent  in  the  prerogative 
court ;  but  in  the  taxation  of  costs,  one-half  of  the  expense  of 
transcribing  and  printing  the  cross-examination  of  the  appel- 
lant's witnesses,  and  one-half  of  the  expenses  of  transcribing 
and  printing  the  direct  examination  of  the  proponent's  wit- 
nesses, was  disallowed.^ 

When  Appellant  Will  be  Charged  With  Costs. 

When  there  is  a  fair  ground  for  re-examination,  costs  will 
not  be  awarded  against  appellant,  though  the  decree  be  af- 
firmed f  but  where  the  existence  of  testamentary  capacity  in 
the  deceased  was  early  shown  in  the  taking  of  the  proofs  sub- 
mitted on  the  part  of  the  caveator,  and  was  never  afterwards 
doubtful,  and  he  consequently  had  no  reasonable  cause  for  ap- 
pealing from  the  decree  originally  made  by  the  orphans'  court, 
the  costs  of  such  appeal  should  be  borne  by  her.* 

On  an  appeal  from  an  order  of  the  orphans'  court  dismissing 
a  petition  to  vacate  a  decree  denying  probate  of  a  will,  and  to 
set  aside  letters  of  administration  granted  by  the  surrogate  of 
the  same  county,  the  proceedings  being  solely  to  review  the 
propriety  of  the  dismissing  order,  and  the  jurisdiction  of  the 
prerogative  court  being  purely  appellate,  it  was  held  that  that 
court  is  without  authority  to  impose  upon  the  defeated  suitor 
counsel  fees  as  part  of  the  costs  and  expenses,  unless  author- 
ized by  statute,  or  the  settled  practice  of  the  court ;  and  that 
there  is  no  statute  nor  any  settled  practice  permitting  such 
allowances.' 

Proceedings  After  Hearing. 

After  reversal,  the  cause  may  be  continued  before  the  ordi- 
nary, or  remitted  for  further  proceedings  before  the  orphans' 

-Wheaton's  Case,  70  N.  J.  Eq.,  N.  J.  Eq.,  531. 

799.  *Wheaton's  Case,  70  N.  J.  Eq., 

^Whitenack  v.  Stryker,  2  N.  J.  799. 

Eq.,  8.  Goble  v.  Grant,  3  N.  J.  Hn  re  Queen,  82  N.  J.  Eq.,  588. 
Eq.,  629.    Perrine  v.  Applegate,  14 


Appeal.  95 

court,  at  the  option  of  the  successful  party.®  So  where  the  de- 
cree of  the  orphans'  court  setting  aside  an  account  is  affirmed, 
the  prerogative  court  may  order  that  exceptions  be  filed  in 
that  court  and  the  matter  continued  there  until  the  final  set- 
tlement of  the  account;'  and  so  where,  on  appeal,  certain  al- 
lowances are  struck  out,  the  ordinary  may  order  the  register 
of  the  prerogative  court  to  re-state  the  account.^  So  where  the 
prerogative  court  reversed  a  decree  of  the  orphans'  court  ap- 
pointing a  guardian  for  minors,  the  ordinary  appointed  a  new 
guadian  for  said  minors,  and  ordered  that  letters  of  guardian- 
ship be  issued  from  the  prerogative  office.^ 

''Alundy  v.  Mundy,  15  N.  J.  Eq.,  764-768. 

290-294.     Trimmer  v.   Adams,    18  'Trimmer   v.   Adams,    18   N.   J. 

N.  J.  Eq.,  505.    Osborn  v.  Rogers.  Eq..    505. 

19  N.  J.  Eq.,  429.    Schuchhardt  v.  ^Runkle  v.  Cxale.  7  N.  J.  Eq.,  loi. 

Schuchhardt,  24  N.  T.  L.  J..  "2.  "Read  v.  Drake.  2  N.  J.  Eq.,  78. 
See  also  Hill's  Case.  55  N.  J.  Eq., 


PAKT  II. 

Wills. 


CHAPTER  VI. 
NATURE  AND  ESSENTIALS  OF  WILLS. 

In  General. 

The  prominent  characteristic  which  distiguishes  a  will  from 
all  other  dispositions  of  property  is  that  it  acquires  no  force 
until  after  the  death  of  the  testator,  and  may  be  revoked,  can- 
celled or  altered  by  him  at  any  time  during  his  life,  provided 
the  intent  and  a  suitable  act  concur.^ 

Testamentary  Intent  Necessary. 

In  order  that  a  document  may  be  valid  as  a  will,  it  is  essen- 
tial that  it  was  intended  when  executed  to  operate  as  a  will. 
Testamentary  intent  is  essential  to  the  validity  of  a  will.  So  a 
paper  writing  in  the  form  of  a  power  of  attorney,  which  does 
not  appear  upon  its  face  to  have  been  intended  as  and  under- 
stood to  be  a  will,  even  though  it  be  executed  in  the  manner 
prescribed  by  the  statute  for  the  execution  of  a  will,  will  not 
be  admitted  to  probate.^ 

Time  of  Taking  EfTect. 

\Miile  it  is  a  general  rule  that  the  character  and  validity  of 
a  will  are  judicially  determined  by  its  admission  to  probate, 
and  that,  until  probate,  a  will  is  wholly  ineffectual  as  an  in- 
strument of  title,  still  it  is  settled  tiiat  a  will  takes  effect  from 
the  death  of  the  testator,  and  that  executors  derive  their  title 
under  the  will,  and  not  by  virtue  of  probate,  which  is  merely 
the  proof  of  their  title;  so  if  a  conveyance  be  made  by  execu- 
tors under  a  power  in  the  will,  before  probate,  sul)sequent  pro- 
bate will  validate  the  conveyance.^ 

What  Law  Governs. 

The  validity  of  a  will  of  personal  property  is  to  be  deter- 
mined by  the  law  of  the  testator's  domicile  at  the  time  of  his 

'Schouler  on  Wills,  sec.  lo,  and  ''Mackey    v.    Mackcy,    71    N.   J. 

see  Revocation  of  Wills.  Rcj.,  686. 

^Combs  V.  Jolly,  3  N.  J.  Eq.,  625. 

97 


98  Probate  Law  and  Practice. 

death,  and  a  will  executed  according  to  the  law  of  testator's 
domicile  will  pass  personal  property  wherever  situate  ;*  and 
the  validity  of  a  legacy  of  personal  property  is  to  be  determined 
by  the  law  of  the  domicile  of  the  testator.^ 

In  respect  to  devises  of  lands,  the  rule  is  that  the  will  must 
be  executed  in  accordance  with  the  formalities  prescribed  by 
the  law  of  the  state  in  which  the  land  is  situate.*'  The  rule  is 
firmly  established  that  the  courts  of  one  state  or  country  are 
without  jurisdiction  over  title  to  lands  in  another  state  or 
country.  The  clause  of  the  Federal  constitution,  which  re- 
quires full  faith  and  credit  to  be  given  in  each  state  to  the 
records  and  judicial  proceedings  of  every  other  state,  is  sub- 
ordinate to  this  rule,  and  applies  to  the  records  and  proceedings 
of  the  courts  only  so  far  as  they  have  jurisdiction.^  So  a  de- 
vise of  land  in  New  Jersey  under  a  will  of  a  non-resident  must 
be  determined  by  the  laws  of  New  Jersey.^ 

Contingent  Wills. 

An  instrument  may  be  made  which  shall  take  effect  as  a  will 
on  the  happening  of  a  particular  contingency  named  in  it ;  not 
the  usual  simple  contingency  of  the  testator's  death,  but  his 
death  after  a  certain  manner,  at  or  before  a  particular  date,  or 
during  some  special  season  of  risk,  or  in  case  he  shall  or  shall 
not  leave  such  an  estate  or  such  persons  surviving  him-''  So 
where  by  a  will  testatrix  had  devised  all  her  estate  to  her  hus- 
band in  fee,  and  later,  she  and  her  husband  being  about  to 
travel  abroad,  she  wrote  a  letter  to  her  father,  which  was  ex- 
ecuted in  manner  and  form  as  required  by  statute  for  the  exe- 
cution of  wills,  beginning  with  the  words,  "In  case  anything 
should  happen  to  us,  I  would  wish,  &c.",  and  devising  her  es- 

*Nelson  v.  Potter.  50  N.  J.  L.,  324. 

324.  'Lindley  v.  O'Reilly,  50  N.  J.  L., 

^Jenkins  v.  Guarantee  Trust  etc.  636.     Nelson  v.   Potter,   50  N.  J. 

Co.,  S3  N.  J.  Eq.,   194.     Affirmed  L.,  324. 

55  N.  J.  Eq.,  799.    In  re  Grattan's  ^Van  Wickle  v.  Van  Wickle,  59 

Estate,  78  N.  J.  Eq..  225  and  cases  N.  J.  Eq.,  317. 

cited  at  page  232.  ^Schouler  on  Wills  and  Admin- 

"Nelson  v.  Potter,  50  N.  J.  L.,  istrations,  140. 


Nature  and  Essentials  of  Wills.  99 

tate  to  her  sister,  it  was  held  to  be  a  valid  will,  contingent  upon 
the  death  of  both  while  upon  their  travels. ^"^ 

Form  and  Contents. 

A  will  may  be  in  any  form,  and  need  not  be  expressed  in 
any  particular  formula ;  but  to  support  an  instrument  as  a 
valid  will,  it  must  be  shown  that  it  was  intended  and  under- 
stood by  the  testator  to  be  his  will,  and  was  executed  as  a  will 
with  the  formalities  prescribed  by  the  statute. ^^  So  an  instru- 
ment in  the  form  of  a  letter  will  be  admitted  to  probate,  if 
executed  as  a  will  in  accordance  with  the  provisions  of  the 
statute.  ^- 

A  will  may  be  written  on  several  sheets  of  paper  incorpo- 
rated together  in  sense  as  one  instrument,  even  though  they  are 
not  fastened  together  and  are  signed  and  attested  on  the  last 
sheet  alone,  provided  the  different  papers  are  obviously  con- 
nected in  their  provisions  and  are  sufficiently  shown  to  com- 
pose a  connected  series,  and  provided  also,  that  the  execution 
was  bona  fide  and  meant  to  cover  the  whole.  There  is  nothing 
in  the  law  of  New  Jersey  requiring  each  sheet  to  be  signed, 
however  wise  a  precaution  that  may  be  ;^^  and  the  fact  that 
there  is  a  blank  page  in  a  will  does  not  impair  its  validity, 
where  an  uncompleted  sentence  on  the  page  preceding  the  blank 
page  is  completed  on  the  page  succeeding  it.^* 

The  statute  requires  that  the  will  be  in  writing.^^  The 
character  of  the  writing  is,  however,  unimportant.  It  may  be 
with  lead  pencil,  or  ink,  or  partly  printed  and  partly  written.^® 

Incorporation  of  Extrinsic  Documents. 

A  testator  may  so  set  forth  his  disposition  as  to  render  it 
necessary  to  have  recourse  to  some  document  other  than  the 
will,  in  order  to  elucidate  or  explain  his  intention.    The  docu- 

^"Cowley  V.  Knapp,  42  N.  J.  L.,  Eq.,  759. 

297.  i3johnsQ„'5  Case,  80  N.  J.  Eq., 

11  Combs  V.  Jolly,  3   N.  J.  Eq.,  525-532. 

625.      In    re    Phelan's    Estate,    82  J*Matter    of    Collins,    5    Redf. 

N.  J.  Eq.,  316.     Affirmed  91   Atl.  Surr.   (N.  Y.),  20. 

Rep.,  1070.  '^4  Comp.  Stat.,  5867,  sec.  24,  p. 

'-Cowley  V.  Knapp,  42  N.  J.  L.,  125,  infra. 

297.     Vernon  v.  Vernon,  69  N.  J.  "'40  CYC,  1092,  and  cases  cited. 


100  Probate  Law  and  Practice. 

ment,  if  sufficiently  identified,  is  then  said  to  be  incorporated  in 
the  will.  Two  things  are-  however,  necessary  to  accomplish 
this  result.  First,  The  paper  must  be  in  existence  at  the  time 
of  the  execution  of  the  will  and  second,  the  description  must 
not  be  so  vague  as  to  be  capable  of  being  applied  to  a  number 
of  instruments,  but  must  describe  the  instrument  intended  in 
clear,  definite  terms. ^'  All  the  cases  require  a  writing,  and 
hold  it  must  be  in  esse  at  the  time  of  the  execution  of  the  will, 
and  that  uncertainty  in  the  reference  is  fatal.  So  a  bequest  of 
property  to  one,  "to  dispose  of  in  accordance  with  any  instruc- 
tions to  her,"  fails,  first,  because  the  will  does  not  sufficiently 
identify  the  writing  to  be  incorporated,  and  secondly,  because, 
by  "instructions,"  the  testator  does  not  limit  himself  either  to 
written  instructions,  or  to  mstructions  then  given. ^*  And  so 
where  a  testator  devised  and  bequeathed  the  residue  of  his  es- 
tate to  trustees,  whom  he  styled  a  board  of  trustees,  and  after 
making  certain  provisions  for  the  organization  of  said  board, 
added  this  language :  "The  property  and  estate  herein  be- 
queathed is  to  be  held  in  trust  by  the  said  board  of  trustees  for 
the  following  object,  namely :  I  desire  that  my  entire  estate, 
with  the  accumulations,  shall  be  used  in  establishing  and  con- 
ducting a  school  for  apprentices  and  young  mechanics  on  plans 
to  be  hereafter  described  by  me,  or  in  case  of  my  death  before 
perfecting  said  plans,  the  school  above  named  is  to  be  con- 
ducted on  plans  which  I  have  from  time  to  time  described  to 
most  of  the  board  of  trustees  herein  named,"  and  the  testator 
did  not  perfect  plans  for  the  school  after  the  will  was  made, 
but  prior  thereto,  in  conversations  at  various  times  with  the 
different  trustees,  had  communicated  to  them  various  crude 
and  general  ideas  with  reference  to  the  schools,  it  was  held  that, 
as  the  statute  requires  a  will  to  be  in  writing,  the  reference  by 
the  testator  to  the  verbal  communications  made  by  him  to  the 
trustees  would  not  incorporate  those  communications  into  his 
will.^^    And  so  an  extrinsic  instrument  cannot  be  incorporated 


^'Bryan's  Appeal,  77  Conn.,  240,  ^^Magnus  v.  Magnus,  80  N.  J. 

58  Atl.  Rep.,  748.    Phelps  v.  Rob-  Eq.,  346. 

bins,  40  Conn.,  250.   i  Williams  on  i^Smith  v.  Smith,  54  N.  J.  Eq.. 

Executors  (6th  Ed.)  99.    Magnus  i.    Affirmed  55  N.  J.  Eq.,  821. 
V.  Magnus,  80  N.  J.  Eq.,  346. 


Nature  and  Essentials  of  Wills.  ioi 

into  a  will  by  a  clause  stating  that  a  sum  is  given  in  trust  "for 
the  purpose  set  forth  in  a  sealed  letter  which  will  be  found  with 
the  will,"  where  the  will  contains  no  clear,  explicit  and  unam- 
biguous reference  to  a  specific  document ;  and  under  such 
circumstances  parol  evidence  is  not  admissible  to  identify  the 
document  referred  to.-'' 

A  testator  cannot  in  his  will  bequeath  property  to  a  class 
of  persons  who  can  be  ascertained  only  by  reference  to  a 
non-testamentary  paper,  which  the  testator  might  change  from 
day  to  day,  and  thus  enlarge  or  diminish  his  testamentary  gifts 
as  often  as  he  chooses  without  observing  the  rules  of  law  re- 
lating to  the  testamentary  disposition  of  property ;  the  effect  of 
permitting  such  a  thing,  would  be  to  allow  a  testator  to  name 
the  particular  legatees  to  whom  his  estate  is  to  go  without  ob- 
serving the  formalities  required  by  law  in  such  cases. -^  So 
where  a  testator  by  his  will  ordered  his  executors  to  make  a 
settlement  with  his  creditors  of  debts  outstanding  at  the  time 
of  his  assignment  for  the  equal  benefit  of  creditors  as  shown  by 
a  list  to  be  found  with  the  will,  such  provision  was  held  void 
as  an  attempt  to  bequeath  property  to  persons  who  were  only 
ascertainable  by  reference  to  a  paper  not  executed  as  wills  are 
required  to  be.-- 

The  cases  heretofore  considered  must  be  distinguished  from 
those  where  legacies  are  given  subject  to  deductions  for  ad- 
vancements to  be  ascertained  from  charges  in  a  book  of  ac- 
count, or  other  evidence  thereof,  to  which  testator  may  refer. 
There  is  no  doubt  that  a  testator  can  provide  that  the  amount 
to  be  received  by  a  legatee  shall  be  dependent  upon  a  condition 
or  fact  to  be  ascertained  aliunde.  Thus  a  testator  may  provide 
that  all  advances  made  to,  or  debts  owing  by  a  legatee,  whether 
made  or  incurred  before  or  after  the  execution  of  the  will, 
shall  be  deducted  from  his  portion  ;  such  amounts  may  be  as- 
certained by  parol  evidence  and  may  be  varied  by  advance- 
ments made  subsequent  to  the  execution  of  the  will.  A  fre- 
quent testamentary  provision  is  that  such  debts,  or  advances, 
as  are  charged  on  testator's  books  against  legatees  shall  be  de- 

'•'Bryan's  Appeal,  77  Conn.  240,      Eq.,  157. 
58  Atl.  Rep.,  748.  22Hartwell  v.  Martin.  71   N.  J. 

2'Hartwell   v.   Martin.   71   N.  J.       Eq.,    157. 


102  Probate  Law  and  Practice. 

ducted ;  and  these  provisions  are  valid.  In  this  class  of  cases, 
the  testamentary  disposition  is  complete,  and  needs  no  aid  from 
other  sources,  although  subject  to  debts,  or  advancements,  for 
they  may  be  proved  without  reference  to  any  memorandum. 
The  gift  is  complete ;  its  payment  during  the  life  of  the  testa- 
tor, in  whole  or  in  part,  may  be  shown  in  exoneration.-^ 

23Moore's   Case,  6i    N.  J.   Eq.,      6i6. 


CHAPTER  VII. 
TESTAMENTARY  CAPACITY. 


In  General. 


As  a  general  rule,  any  person  of  sound  mind,  who  has 
reached  the  age  of  discretion  and  is  inider  no  restraint  of  will, 
is  capable  of  making  a  testamentary  disposition  of  his  property 
in  conformity  with  the  prescribed  rules  of  law.^ 

What  Law  Governs  Capacity. 

The  rule  is  well  settled  that  capacity  to  bequeath  personalty 
is  governed  by  the  law  of  the  testator's  domicile,-  but  with 
respect  to  devises  of  lands,  the  law  of  the  state  where  the  land 
is  situate  governs.^ 

Time  to  Which  Question  of  Capacity  Relates. 

The  point  of  time  at  which  the  testamentary  competency  is 
to  be  tested  is  that  of  the  execution  of  the  will.  The  antecedent 
and  subsequent  condition  of  a  testator  is  chiefly  important  as 
bearing  upon  that  epoch.* 

Evidence  of  previous  weakness  and  inability,  if  credible,  is 
competent  and  relevant ;  but  if  evidence  of  capacity  during 
the  period  that  the  business  was  in  hand  is  convincing  and  suf- 
ficient, the  evidence  of  previous  incapacity  has  no  weight.^  So 
where  less  than  a  year  after  the  execution  of  the  will  a  com- 
mission of  lunacy  found  that  testator  was  of  unsound  mind, 
and  had  been  so  for  three  years  preceding,  but  it  was  shown 

'Schouler  on  Wills,  Sec.  31.  2^  N.  J.  Eq.,  447.    Affirmed  28  N. 

^Nelson  v.   Potter,   50  N.  J.  L.,  J.  Eq.,  437.     Elkinton  v.  Brick,  44 

324.  N.  J.  Eq.,  154.    O'Brien  v.  Dwyer, 

^Nelson  v.  Potter,  50  N.  J.  L.,  45   N.  J.  Eq.,   689.     In   re   Buck- 

324.     Van  Wickle  v.  Van  Wickle,  man's  Will.  80  N.  J.  Eq.,  556.    In 

59    N.    J.    Eq.,    317.      Lindley    v.  re  Craft's  Estate,  94  Atl.,  606. 
O'Reilly,  50  N.  J.  L.,  636.  ^Armstrong  v.  Armstrong,  69  N. 

*Whitenack  v.  Stryker,  2  N.  J.  J.  Eq.,  817-820.     Buckman's  Case, 

Eq.,  8.     Turner  v.  Cheesman,   15  80  N.  J.  Eq.,  556. 
N.  J.  Eq.,  243.    In  re  Wintermute, 

T03 


104  Probate  Law  and  Practice. 

by  the  testimony  of  witnesses  that  he  possessed  testamentary 
capacity  at  the  time  of  making  his  will,  the  will  was  admitted 
to  probate."  So  the  validity  of  a  will  was  sustained,  where  it 
was  made  to  satisfactorily  appear  that,  although  the  testatrix 
was  addicted  to  the  use  of  morphine,  at  the  time  the  will  was 
executed  she  was  not  under  the  influence  of  that  drug.'^  So 
where  it  is  claimed  that  the  use  of  morphine  and  whiskey  had 
deprived  testatrix  of  testamentary  capacity,  evidence  that  at 
times  prior  to  the  execution  of  the  will,  and  on  occasions  there- 
after, she  had  been  stupefied,  does  not  necessarily  indicate  in- 
capacity at  the  time  of  the  execution  of  the  will.^  So  a  testa- 
tor will  be  deemed  to  have  had  mental  capacity  to  make  a  will, 
if  it  clearly  appears  that  he  comprehended  his  property,  the 
natural  objects  of  his  bounty,  the  character  of  the  business  in 
which  he  was  engaged  and  the  disposition  he  resolved  to  make 
of  his  property,  at  the  time  when  he  gave  instructions  for  the 
will  and  when  he  executed  it,  though  it  appears  that  at  the  pe- 
riod when  the  will  was  made  he  was  in  an  incipient  stage  of  a 
fixed  mental  disease,  which  at  times  had  so  aflfected  him  as  to 
incapacitate  him  from  making  a  will ;''  and  where  the  evidence 
showed  that  the  testatrix  was  old  and  subject  to  occasional 
mental  delusions  caused  by  defective  vision  and  temporary 
sickness,  but  it  was  not  shown  that  such  delusions  existed  when 
the  will  was  made  or  that  they  influenced  the  disposition  of  her 
property,  it  was  held  insufficient  to  establish  want  of  testa- 
mentary capacity.^" 

DISABILITIES. 
Infants. 

At  common  law,  an  infant  was  incapable  of  making  a  will 
devising  realty ;  a  boy  after  the  age  of  fourteen  years,  and  a 
girl  after  the  age  of  twelve  years  could,  however,  make  a  will 
disposing  of  their  goods  and  chattels,  and  that  without  the  con- 
sent of  their  father  or  guardian. ^^  This  rule  prevailed  in  New 

"Brady  v.  McBride,  39  N.  J.  Eq.,  ^ciaffgy   v.    Ledwith,    56    N.    J. 

495.  Eq..  333.     In  re  Craft's  Estate,  94 

^Frost  V.  Wheeler,  43  N.  J.  Eq.,  Atl.,  606. 

573.  loGilman  v.  Ayer.  47  Atl.  Rep.. 

nn  re  Gilham's  Will,  64  N.  J.  1049.     Affirmed  63  N.  J.  Eq.,  806. 

Eq.,  715.  ^^Swinburne  on  Wills,  p.  67. 


Testamentary  Capacity.  105 

Jersey  until  1850,  when  a  statute  was  enacted  providing  that 
no  will  of  personal  estate  made  after  the  fourth  day  of  July 
of  that  year  by  any  person  within  the  age  of  twenty-one  years 
should  be  good  or  effectual  in  law/- 
Married  Women. 

At  common  law,  a  married  woman  was  incapable  of  devis- 
ing real  estate ;  she  might,  however,  with  the  consent  of  her 
husband,  make  a  valid  will  of  her  personal  estate. ^^  This  rule 
prevailed  in  this  state  until  1864,  when  a  statute  was  enacted 
providing  that  any  will  or  testament  thereafter  made  in  due 
form  of  law,  by  any  married  woman  above  the  age  of  twenty- 
one  years,  of  any  real  or  personal  property,  should  be  held  to 
be  as  valid  and  effectual  in  law  as  if  she  were,  at  the  time  of 
making  the  said  will,  and  at  the  time  of  her  death,  an  unmar- 
ried woman ;  provided  always,  that  nothing  in  the  statute  con- 
tained should  be  so  construed  as  to  authorize  any  married 
woman  to  dispose,  by  will  or  testament,  of  any  interest  or  es- 
tate in  real  property  to  which  her  husband  would  be,  at  her 
death,  entitled  by  law,  but  such  interest  or  estate  should  remain 
and  vest  in  the  husband  in  the  same  manner  as  if  such  will  had 
not  been  made.^* 

Since  this  statute  does  not  confer  upon  a  married  woman 
power  to  dispose  by  will  of  any  interest  to  which  her  husband 
is  at  her  death  entitled  by  law  in  her  real  or  personal  prop- 
erty,^^  the  right  of  the  husband  to  a  life  estate  in  the  lands  of 
his  wife  at  her  death  cannot  be  devised  by  her  will,  even  though 
the  husband  consent  thereto  in  writing  ;^®  but  a  married  woman 
who  was  married  in  1879,  and  who  has  not  had  issue  born  alive, 
may  make  a  will  disposing  of  her  entire  estate,  real  and  per- 
sonal, without  the  consent  of  her  husband  ;^^  and  a  will  of  a 
married  woman,  which  devises  and  bequeaths  all  of  her  estate, 
real  and  personal,  to  another,  subject  to  the  legal  rights  of  her 
husband,  if  he  survives  her,  and  which  appoints  another  than 

124  Comp.  Stat.,  5871,  sec.  28.  Eq.,  118. 

i^VanWinkle    v.    Schoonmaker,  i^Middleton  v.  Stewart.  47  N.  J. 

15  N.  J.  Eq.,  384.  Eq.,  293,  overruling  Beal  v.  Storm. 

"3  Comp.  Stat.,  p.  3235,  sec.  9.  26   N.  J.   Eq.,   2n~y   contra. 

i5Vreeland    v.    Ryno,    26   N.   J.  ^^Stoutenburgh    v.    Hopkins,   43 

Eq.,  160.     Reversed  27  N.  J.  Eq.,  N.   J.   Eq..   577.     Affirmed   45   N. 

522.     Nelson  v.  Nelson,  57  N.  J.  J.  Eq.,  890. 


io6  Probate  Law  and  Practick. 

the  husband  as  executor,  does  not  give  to  the  husband,  in  case 
of  his  survival,  any  right  in  the  personahy  so  bequeathed,  as 
such  a  right  is  purely  equitable,  and  is  not  one  of  his  legal 
rights  in  his  wife's  estate.^* 

Degree  of  Mental  Capacity  Required. 

That  understanding  and  those  intellectual  powers  which  are 
necessary  to  enable  a  man  to  make  a  valid  testament  are  usu- 
ally denominated  a  sound  and  disposing  mind  and  memory;^' 
but  it  is  not  essential  that  testator's  mind  should  be  unbroken, 
unimpaired  and  unshattered  by  disease,  or  otherwise,^*'  nor  is 
it  necessary  that  testator  should  possess  these  qualities  of  mind 
in  the  highest  degree,  or  even  in  as  great  a  degree  as  he  may 
formerly  have  done.-^  A  person  of  very  moderate  capacity, 
may,  under  favorable  circumstances,  make  a  valid  will,  if  it 
appears  that  he  can  comprehend  his  property,  the  natural  ob- 
jects of  his  bounty  and  the  disposition  he  has  determined  to 
make  of  his  property.--  So  a  testator's  memory  may  not  be 
perfect,  he  may  not  have  sufficient  strength  of  memory  and 
vigor  of  intellect  to  digest  all  parts  of  a  contract,  and  he  may 
yet  be  competent  to  make  a  will.-^ 

As  has  been  seen  above,  while  the  mind  may  be  to  some  de- 
gree debilitated,  and  the  memory  enfeebled,  yet  if  the  testator 
at  the  time  of  executing  the  will  is  capable  of  understanding 
the  nature  of  the  business  in  which  he  is  engaged,  if  he  is  able 
to  recollect  the  property  of  which  he  means  to  dispose,  and  the 
distribution  which  is  made  of  it  by  his  will,  to  recall  the  per- 
sons who  are  the  objects  of  his  bounty,  and  to  discern,  recol- 
lect and  feel  the  relations,  connections  and  obligations  of  fam- 


i^In  re  Fohvell's  Estate,  68  N.  695,  775.    Andress  v.  Weller,  3  N. 

J.  Eq.,  728.     2  L.  R.  A.   (N.  S.),  Eq.,    604.     Clifton   v.    Clifton,   47 

II93-  N.  J.  Eq..  227. 

i^'Den  V.  Vancleve,  5   N.  J.  L.,  -^Howell  v.  Taylor,  50  N.  J.  Eq., 

695-775.      In    re    Craft's    Estate,  428.     Andress  v.  Weller,  3  N.  J. 

94   Atl.,   606.                                      •  Eq.,  604.     Waddington  v.  Buzby, 

""Sloan  V.  Maxwell,  3  N.  J.  Eq.,  45  N.  J.  Eq.,  173.    Bennett  v.  Ben- 

563.  nett,  50  N.  J.  Eq.,  439-445- 

2iDen   V.  Johnson,   5   N.  J.   L.,  23in    re    Dillon's   Will,   87   Atl., 

454.    Den  V.  Vancleve,  5  N.  J.  L.,  161-164.    82  N.  J.  Eq.,  322. 


Testamentary  Capacitv.  107 

ily  and  blood,  he  has  sufficient  testamentar}'  capacity.-*  So 
mere  ignorance  by  testator  of  the  kind  or  amount  of  his  prop- 
erty will  not  invalidate  a  will,  but  only  ignorance  resulting 
from  a  mental  incapacity  to  comprehend  the  kind  and  amount 
thereof.-^  There  is  no  distinction  between  the  degree  of  men- 
tal capacity  requisite  for  the  execution  of  a  will  of  real  estate, 
and  that  requisite  for  the  execution  of  a  will  of  personal  prop- 
erty.-*^ 

Old  Age  and  Infirmity. 

The  infirmities  of  old  age  should  not  too  readily  be  accepted 
as  proof  of  imbecility  or  incapacity.  It  is  important  to  bear  in 
mind  the  remark  of  Justice  Ewing,  in  Sloan  v.  Maxwell,^''  that 
"the  power  of  disposing  of  property  is  an  inestimable  privilege 
of  the  old.  It  frequently  commands  attention  and  respect  from 
kindred,  when  other  motives  have  ceased  to  influence  them. 
How  often  without  it  would  the  hoary  head  be  neglected,  de- 
serted and  despised."-^  A  person  who  is  aged,  infirm  and 
almost  blind  may  make  a  valid  will  if  capable  of  recollecting 
the  property  she  is  about  to  dispose  of  and  able  to  understand 
the  disposition  made  of  it  in  her  will,  to  know  the  objects  of 
her  bounty  and  the  nature  of  the  business  in  which  she  is  en- 
gaged.^^  So  testamentary  incapacity  of  a  person  eighty-two 
years  old  when  he  made  his  will  is  not  shown  by  the  facts  that 

-*Lyons  v.  Van  Riper,  26  N.  J.  man   v.  Ayer,  47  Atl.  Rep..   1049. 

Eq.,  2,2,7-     Rusling  v.  Rusting,  36  Affirmed,  63  N.  J.  Eq.,  806.    In  re 

N.  J.  Eq.,  603-607,  and  cases  cited.  Dillon's   Will,  82  N.  J.  Eq.,  322. 

Stoutenburgh  v.  Hopkins,  43  N.  J.  Johnson's  Case.  -So  N.  J.  Eq.,  525- 

Eq.,  577-     Affirmed  45  N.  J.  Eq.,  536. 

890.    Waddington  v.  Buzby,  45  N.  -'In  re  Livingston's  Will.  37  Atl. 

J.  Eq.,  173.     O'Brien  v.  Dwyer,  45  Rep.,  770. 

N.  J.  Eq.,  689.    Bannister  v.  Jack-  -"Sloan  v.  Maxwell,  3  N.  J.  Eq.. 

son,  45  N.  J.  Eq.,  702.     McCoon  v.  563. 

Allen,   45   N.   J.   Eq.,   708.     Lee's  273   n.  J.  Eq.,  563.  581. 

Case,  46  N.  J.  Eq.,  193,  and  cases  --"See  also  White  v.  Starr,  47  N. 

cited.    Clifton  v.  Clifton,  47  N.  J.  J.  Eq.,  244-258. 

Eq.,  227.    Smith  v.  Smith,  48  N.  J.  ^^Waddington  v.  Buzby,  45  N.  J. 

Eq.,  566.     Bennett  v.  Bennett,  50  Eq.,  173.    White  v.  Starr,  47  N.  J. 

N.  J.  Eq.,  439.    Westcott  v.  Shep-  Eq.,  244.     Buckman's  Case,  80  N. 

pard,  51  N.  J.  Eq..  31 5-    Claffey  v.  J.  Eq..  556. 
Ledwith,   56  N.  J.  Eq.,  333.     Gil- 


io8  Probate  Law  and  Practice. 

he  was  miserly,  squalid,  dishonest,  profane  and  irascible,  that 
he  cancelled  a  codicil  to  his  will  merely  because  he  believed  the 
beneficiary  named  therein,  who  was  not  a  relation,  was  insin- 
cere toward  him,  that  thirteen  years  before  the  will  was  made 
he  revoked  a  trust  deed  in  the  nature  of  a  testamentary  disposi- 
tion of  his  property,  that  seven  years  later  he  revoked  an  abso- 
lute gift  of  certain  stocks,  and  that  he  gave  the  bulk  of  his  es- 
tate to  his  executors  in  trust  to  reduce  the  national  debt,  he 
having  no  legitimate  kindred  to  be  disinherited  or  disap- 
pointed.^** 

So  the  will  of  a  testator  eighty-five  years  of  age  when  he 
died,  and  who  was  blind  for  the  preceding  fifteen  years,  was 
sustained,  though  he  gave  most  of  his  property  to  two  of  his 
sons  with  whom  he  lived.^^  So  where  the  testatrix  was  eighty- 
three  years  of  age  when  her  will  was  executed,  and  was  able 
to  name  over  correctly  twenty  of  her  intended  legatees  to 
the  scrivener,  although  forgetfulness  in  regard  to  some  minor 
matters  was  shown,  and  it  appeared  that  she  had  made  an  un- 
just and  unfounded  accusation  against  a  person,  her  will  was 
sustained. ^^  So  the  fact  that  a  testatrix  was  ninety-eight  years 
old  at  the  time  she  made  her  will,  is  not,  in  the  absence  of 
fraud,  circumvention  or  undue  influence  in  procuring  the  will, 
sufficient  ground  for  refusing  to  admit  the  will  to  probate  f^ 
and  mere  forgetfulness  of  recent  events  in  a  testatrix  eighty- 
three  years  old  is  no  evidence  of  incapacity  to  make  a  will.^* 
So  where  the  testatrix  was  about  eighty-one  years  of  age,  and, 
from  an  injury  to  her  hip,  somewhat  of  an  invalid,  and  al- 
though unable  to  read  or  write  was  thoroughly  conversant  with 
her  own  affairs-  and  with  the  kind  and  value  of  her  property, 
and  exhibited  a  full  knowledge  of  the  number  and  degree  of 
kinship  of  her  relations,  she  was  held  to  have  testamentary 
capacity.^'^    But  where  testator  was  more  than  eighty  years  old, 

3oin   re  Lewis's  Case,  33  N.  J.  32;\fgrrill  v.  Rush,  33  N.  J.  Eq., 

Eq..  219.  537. 

31  Collins    V.    Osborn,    34    N.    J.  ^scoiijng  y.  Townlej',  21   N.  J. 

Eq.,  511.     See  also  In  re  Humph-  Eq.,  353. 

rey,  26  N.  J.  Eq.,  513.     Sutton  v.  34j;(j(]y's  Case,  32  N.  J.  Eq.,  701. 

Morgan,  30  N.  J.  Eq.,  629.    Kise  v.  Reversed,  33  N.  J.  Eq.,  574. 

Heath,  33  N.  J.  Eq.,  239.     In  re  ^^Carter's    Case,    60   N.   J.    Eq., 

Craft's  Estate,  94  Atl.,  606.  338. 


Testamentary  Capacity.  109 

suffered  from  delirium  tremens,  held  illusions  toward  his  wife 
and  step-son,  and  made  two  very  different  wills  within  two 
weeks  without  any  adequate  reason  therefor,  he  was  held  not 
to  possess  testamentary  capacity.^® 

Physical  Debility. 

Proof  of  extreme  physical  debility  of  a  testatrix  is  not  suf- 
ficient to  establish  incapacity  to  make  a  will.^'  So  where 
testator  was  suffering  from  Brights  Disease,  and  for  some 
time  prior  to  the  execution  of  his  will  was  confined  to  his 
room,  being  enfeebled  by  the  disease,  and  was  also  irrational 
at  times  from  the  result  of  narcotics,  but  on  March  30th,  pre- 
ceding the  execution  of  his  will,  had  executed  a  lease,  requiring 
it  to  be  read  to  him  and  objecting  to  an  error  made  in  readiiu' 
it,  and  died  April  9th,  and  his  attending  physician  gave  evi- 
dence favorable  to  his  testamentary  capacity  at  the  time  of  the 
execution  of  the  will,  it  was  held  that  the  evidence  was  insuffi- 
cient to  show  lack  of  testamentary  capacity.^^ 

Persons  in  Extremis. 

The  mere  fact  that  a  person  is  dying  at  the  time  of  the  exe- 
cution of  the  will,  standing  alone  by  itself,  is  not  sufficient  to 
invalidate  the  will,  if  it  is  shown  that  the  dying  person  pos- 
sessed testamentary  capacity,  as  hereinbefore  defined.  So 
where  a  testatrix,  seventy  years  old,  made  her  will  a  few  days 
after  a  paralytic  attack,  the  will  was  sustained,  it  appearing 
that  she  was  able  to  recognize  her  attendants  and  visitors, 
and  conversed  and  consulted  intelligently  in  regard  to  making 
her  will  f^  and  under  similar  circumstances  a  will  executed  by 
a  consumptive  a  few  hours  before  he  died  was  sustained.^"  In 
a  case  where  testatrix,  when  she  made  the  will,  which  was  in 
German,  was  seventy-two  years  of  age,  and  could  understand 

36Edge   V.  Edge,  38   N.  J.  Eq.,  ^PHarris  v.  Betson,  28  N.  J.  Eq., 

211.  211.     In    re    Gahagan,    82    N.    J. 

^^Stoutenburgh   v.    Hopkins,   43  Eq.,  601. 

N.  J.  Eq.,  577.    Affirmed  45  N.  J.  ^"Andrews's  Case.  33  N.  J.  Eq., 

Eq.,  890.  514.    Ayres  v.  Ayres,  43  N.  J.  Eq., 

"«In    re   Barber's    Will,   49   Atl.  565.     O'Brien  v.  Dwyer,  45  N.  J. 

Rep.,  826.  Eq.,  689. 


no  Probate  Law  and  Practice. 

English  with  difficulty,  and  had  been  confined  to  her  bed.  was 
unable  to  retain  nourishment  and  was  slowly  dying  of  starva- 
tion, and  the  attending  physician  was  prescribing  morphine  to 
relieve  her  from  pain,  she  being  constantly  under  its  influence, 
although  capable  of  being  aroused  to  intelligence,  and  her  hus- 
band was  present,  but  apparently  did  nothing  to  influence  her, 
and  it  appeared  that  a  former  will  in  English  had  been  made 
about  a  month  previous,  in  which  her  property  was  not  dis- 
posed of  advantageously  to  her  husband,  and  that  testatrix, 
when  making  the  second  will  informed  the  attorney  making  it 
that  she  had  not  understood  the  former  will,  as  it  was  in  Eng- 
lish, it  was  held  that  the  testatrix  possessed  sufficient  t£sta- 
mentary  capacity.*^ 

Insanity — In  General, 

A  person  who  is  totally  insane  is.  of  course,  incompetent  to 
make  a  will,  for  a  testator  must,  in  the  language  of  the  law,  be 
possessed  of  sound  and  disposing  mind  and  memory.  He  must 
have  memory ;  a  man  in  whom  this  faculty  is  totally  extin- 
guished cannot  be  said  to  possess  understanding  to  any  degree 
whatever,  or  for  any  purpose.  But  his  memory  may  be  very 
imperfect ;  it  may  be  greatly  impaired  by  mental  disease ;  he 
may  not  be  able  at  all  times  to  recollect  the  names,  the  persons, 
or  the  families  of  those  with  whom  he  had  been  intimately  ac- 
quainted, he  may  at  times  ask  idle  questions,  and  repeat  those 
which  had  been  asked  before  and  answered,  and  yet  his  under- 
standing may  be  sufficiently  sound  for  any  of  the  ordinary 
transactions  of  life-  He  may  not  have  sufficient  strength  of 
memory  and  vigor  of  intellect  to  make  and  digest  all  the  parts 
of  a  contract,  and  yet  be  competent  to  direct  the  distribution  of 
his  property  by  will.  The  question  is  not  so  much  what  was 
the  degree  of  memory  possessed  by  the  testator  as  this — had  he 
a  disposing  memory?  Was  he  capable,  as  has  been  said  above, 
of  recollecting  the  property  he  was  about  to  bequeath,  the  man- 
ner of  distributing  it.  and  the  objects  of  his  bounty?  To  sum 
up  the  whole  matter  in  the  simplest  and  most  intelligible  form, 
were  his  mind  and  memory  sufficiently  sound  to  enable  him  to 

*iDieffenbach  v.  Grece,  56  N.  J. 
Eq..  365. 


Testamextary  Cafacitv.  Ill 

know  and  to  understand  the  business  in  which  he  was  en- 
gaged at  the  time  he  executed  his  will  ?^- 

A  testator  may  be  subject  to  a  partial  mental  derangement 
towards  a  particular  individual,  and  this  derangement  may  be 
the  cause  of  depriving  such  individual  of  the  bounty  of  the 
testator ;  but  if  the  person  concerning  whom  testator  is  men- 
tally deranged  is  not  one  of  his  next  of  kin  or  heirs  at  law,  who 
will  be  benefited  by  the  setting  aside  of  the  will,  such  will  will 
be  held  valid  on  the  theory  that  the  monomania  of  the  testator 
did  not  and  could  not  affect  the  testamentary  disposition  made 
by  him  as  to  persons  other  than  the  one  concerning  whom  tes- 
tator was  deranged,  and  that  such  person  could  in  no  wise  be 
benefited  by  the  setting  aside  of  the  will.  The  rule  would,  of 
course,  be  otherwise  where  the  person  concerning  whom  the 
delusion  existed  would  benefit  by  the  setting  aside  of  testator's 
will.*^  Alere  proof  of  attempts  to  commit  suicide,  followed 
by  suicide,  exhibit  at  most  but  a  temporary  mental  affliction 
having  no  reference  to  the  antecedent  or  subsequent  periods  of 
time."  So  the  facts  that  testatrix  talked  to  herself  habitually, 
spoke  disconnectedly,  and  never  transacted  any  business,  are 
not  sufficient  to  disprove  testamentary  capacity.*^ 

Insane  Delusions. 

A  delusion  has  been  defined  to  be  the  mind's  spontaneotis 
conception  and  acceptance  as  a  fact  of  that  which  has  no  real 
existence,  except  in  its  imagination,  and  its  persistent  adherence 
to  it  against  all  evidence.*®  Another  authority  defines  an  in- 
sane delusion  to  be  a  fixed  belief,  based  upon  supposed  facts 
which  exist  only  in  the  diseased  imagination  of  the  deluded 
person,  persisted  in  against  indisputable  evidence  of  its  fals- 
ity.- 

The  term  "delusions,"  as  applied  to  insanity,  does  not  mean 

■'-Den  V.  Vancleve,  5  N.  J.  L.,  ^''Krrickson  v.  Fields,  30  N.  J. 

695-775-      Stackhouse    v.    Horton,  Eq.,  634. 
15  N.  J.  Eq.,  202-206.  4r.^jij(]lg(jit(,li  y  Williams,  45  N. 

■♦^Stackhouse  v.  Horton,    15   N.  J.   Eq.,   726.     Reversed.  47   N.  J. 

J.  Eq.,  202.    Merrill  v.  Rush,  33  N.  Eq.,  585.     Smith  v.  Smith,  48  N. 

J.  Eq.,  537.  J.  Eq.,  566.     Kern  v.  Kern,  51  N. 

**Koegel  V.  Egner,  54  N.  J.  Eq.,  J.  Eq.,  574-586. 
623.  ■•^Davenport  v.  Davenport,  67  N. 

J.  Eq.,  320. 


112  Probate  Law  and  Practice. 

a  mere  mistake  of  fact  or  being  induced  by  false  evidence  to 
believe  that  a  fact  exists  which  does  not  exist;*®  and  a  mis- 
taken conclusion  arrived  at,  upon  consideration  of  existing 
facts,  is  not  an  insane  delusion,  although  the  facts  may  not 
justify  the  conclusion.*^  Where  a  person  is  induced  by  false 
evidence,  or  by  false  statements,  to  believe  a  fact  to  exist  which 
does  not  exist,  or  where,  in  consequence  of  his  faith  in  evi- 
dence which  is  true,  but  which  is  wholly  insufficient  to  prove 
the  truth  of  what  he  believes,  he  believes  a  fact  to  exist  which 
in  reality  has  no  existence,  his  belief  may  show  want  of  dis- 
cernment, or  of  ordinary  power  of  discrimination,  and  that  he 
is  consequently  easily  duped,  but  not  that  his  mind  is  un- 
sound.^" So  belief  in  spiritualism,  that  is,  that  there  can  be 
communication  between  the  spirits  of  the  dead  and  the  living, 
is  not  an  insane  delusion.^^ 

The  rule  is  entirely  settled  that  a  delusion,  to  have  any  ef- 
fect upon  a  will,  must  be  such  as  did  or  would  be  likely  to  in- 
fluence the  disposition  made  by  the  testator ;  nor  is  it  enough 
that  the  delusion  may  have  existed  at  other  times,  for  the  point 
is,  did  it  exist  at  the  time  of  the  execution  of  the  will.^-  If  a 
testator  possess  sufficient  mental  power  to  take  into  account 
all  the  considerations  necessary  to  the  making  of  a  proper  will, 
though  he  is  subject  to  an  insane  delusion,  yet  if  it  appears  that 
such  delusion  neither  influenced  him,  nor  was  calculated  to  in- 
fluence him  in  making  his  will,  the  will  must  be  upheld. ^^  So 
intermittent  mental  delusions  resulting  from  and  depending  en- 
tirely upon  the  disease  from  which  testator  suffered,  and  from 
which  he  was  otherwise  free,  were  held  not  to  affect  his  testa- 
mentary capacity,  where  it  appeared  that  when  he  executed  the 

*8Middleditch  v.  Williams,  45  N.  to  45  N.  J.  Eq.,  726,  at  page  ^2^. 

J.   Eq..    726.     Reversed   47    N.   J.  Buchanan  v.  Pierie,  54  Atl.  Rep"., 

Eq.,  585.  583.     (Pa.) 

*sDavenport  v.  Davenport,  67  N.  ^-QAXm-dn  v.  Ayer,  47  Atl.  Rep., 

J.  Eq.,  320.  1049.     Affirmed  63  N.  J.  Eq.,  806. 

soMiddleditch  v.  Williams,  45  N.  In  re  Baker's  Will,  90  Atl.  Rep., 

J.   Eq.,   726.     Reversed,   47   N.   J.  1009. 

Eq.,   585.  53Lee  v.  Scudder,  31  N.  J.  Eq., 

'iMiddleditch  v.  Williams,  45  N.  633.     Middleditch  v.  Williams,  45 

J.   Eq.,   726.     Reversed   47   N.   J.  N.  J.  Eq.,  726.     Reversed,  47  N. 

Eq.,   585,  and   see  reporter's  note  J.  Eq.,  585. 


Testamentary  Capacity.  113 

will  he  manifested  no  delusion  f*  and  a  testator's  mental  delu- 
sion as  to  his  physical  condition,  or  the  cause  thereof,  does  not 
constitute  testamentary  incapacity.^'^  So  the  mere  existence  in 
the  mind  of  testator  of  a  delusion  that  he  had  committed  un- 
pardonable sins  for  which  he  was  to  suffer  punishment  after 
death  is  not  sufficient  to  require  a  court  to  pronounce  him  in- 
capable of  making  a  testamentary  disposition  of  his  property 
not  influenced  by  such  delusion.'^'''  But  where  testatrix,  about 
the  time  the  alleged  will  was  executed,  had  the  insane  delu- 
sion that  she  had  killed  a  number  of  people,  that  some  persons 
were  trying  to  cut  her  heart  out,  that  she  had  been  to  the  Holy 
Land,  and  that  she  was  married  to  one  of  the  beneficiaries 
under  the  alleged  will,  all  of  which  delusions  had  no  existence 
except  in  the  imagination  and  were  without  basis  of  reason, 
and  it  also  appeared  that  she  was  afflicted  with  other  insane 
delusions  from  a  period  of  time  one  month  prior  to  the  execu- 
tion of  the  will  until  her  death,  and  that  at  the  time  of  the 
making  of  the  will  her  reasoning  powers  were  seriously  im- 
paired, probate  of  the  will  was  denied."'" 

Delusion  and  Prejudice  Distinguished. 

It  is  important  to  distinguish  between  a  will  which  is  the 
product  of  a  delusion  and  one  which  is  the  product  of  an  aver- 
sion or  prejudice.  That  the  will  to  others,  not  having  the 
means  of  knowing  what  the  testator  knows,  not  occupying  his 
standpoint,  not  having  lived  his  life,  nor  having  his  secret  af- 
fections and  hates,  may  seem  unreasonable,  injudicious  and 
unjust,  is  no  reason  why  it  should  be  declared  to  be  the  product 
of  a  diseased  mind.  The  testator  has  a  right  to  make  an  un- 
reasonable, unjust  and  injudicious  will,  and  his  neighbors  have 
no  right,  sitting  as  a  jury,  to  alter  the  disposition  of  his  prop- 
erty, merely  because  they  may  think  that  the  testator  did  not 
do  justice  to  his  family  connections;  and  hence  it  is  quite  clear 
that  a  delusion,  and  not  a  mere,  aversion  or  dislike,  is  necessary 
to   indicate   such   mental   unsoundness   as   to   preclude   testa- 

^*Lee  V.  Scudder,  31  N.  J.  Eq.,  •'"'"Grant  v.  Stamler,  68  N.  J.  Kq., 

633.  555- 

^^Hollinger  v.  Syms,    37    N.  J.  J^' In  re  Casey's  Will,  24  N.  J.  I.., 

Eq.,  221.     Affirmed   ib.,  628.  J.  465. 


?ii4  Probate  Law  and  Practice. 

mentary  capacity.^^  So  a  will  cannot  be  set  aside  on  account 
of  strong,  violent,  and  unjust  prejudice  of  the  testator  exhib- 
ited in  the  disposition  of  his  property  made  by  the  will,  if  such 
prejudice  be  not  founded  on  delusion  and  do  not  show  mental 
incapacity.^^ 

Feeble  Intellect  and  Eccentricity. 

As  has  been  seen,  a  testator's  memory  may  be  impaired  by 
age  or  disease,  he  may  be  unable  to  recollect  the  names  of 
those  with  whom  he  has  been  intimately  acquainted,  he  may  at 
times  do  childish  things,  speak  disjointedly,  fly  abruptly  from 
one  subject  to  another,  ask  idle  questions  or  repeat  those  which 
have  before  been  asked  and  answered,  and  yet  may  possess  ca- 
pacity to  make  a  will.*'°  So  where  a  testator  knew  the  effect  of 
making  a  will,  and  what  property  he  had  to  dispose  of,  and  was 
merely  eccentric  or  erratic,  both  of  which  were  the  result  of 
vanity  and  ignorance,  and  not  of  mental  disease,  he  was  held  to 
have  had  testamentary  capacity. *^^ 

Drunkenness. 

Habits  of  drunkenness  do  not  of  themselves  destroy  testa- 
mentary capacity,  and  it  is  not  necessary  that  one  in  the  habit 
of  excessive  indulgence  in  strong  drink  should  be  wholly  free 
from  its  influence,  when  executing  his  will.  If,  however,  fixed 
mental  disease  has  supervened  upon  intemperate  habits,  the 
man  is  incompetent,  and  irresponsible  for  his. acts.  If  he  is  so 
excited  by  present  intoxication  as  not  to  be  master  of  himself. 


S8  Boylan  v.  Meeker,  28  N.  J.  L.,  re  Wintermute,  2y  N.  J.  Eq.,  447. 

274-2^7.  Affirmed  28  N.  J.  Eq.,  437.    Lew- 

'^^Trumbull  v.  Gibbons,  22  N.  J.  is's  Case,  Zi  N.  J.  Eq.,  219.  Frost 

L.,  117.    Lowe  V.  Williamson,  2  N.  v.  Wheeler,  43  N.  J.  Eq.,  573.  Clif- 

J.  Eq.,  82.     In  re  John  Gleespin,  ton  v.  Clifton,  47  N.  J.  Eq.,  227, 

26  N.  J.  Eq.,  523.     Lewis's  Case,  and  cases  cited  on  p.  241.     White 

3:i  N.  J.  Eq.,  219.  V.    Starr,   47    N.   J.    Eq.,    245-258. 

""Whitenack  v.  Stryker,  2  N.  J.  Sanderson  v.  Sanderson.  52  N.  J. 

Eq.,  8.     Stackhouse  v.  Horton,  15  Eq.,  243. 

N.    J.    Eq.,    202-205.      Turner    v.  "iparnum  v.  Boyd,  56  N.  J.  Eq., 

Cheesman,  15  N.  J.  Eq.,  243.     In  766. 


Testamentary  Capacity.  115 

his  legal  acts  are  void  f'  but  as  has  been  said,  habits  of  drunk- 
enness do  not  of  themselves  destroy  testamentary  capacity,  al- 
though they  produced  the  disease  of  which  testator  died  a  few 
weeks  after  making  his  will.®^  A  man  may  habitually  indulge 
in  intoxicants,  yet  possess  testamentary  capacity,  if  at  the  very 
time  of  the  execution  of  the  will  he  was  able  to  or  did  clearly 
comprehend  the  nature  and  effect  of  the  business  in  which  he 
was  engaged.^*  So  where  a  testator  had,  by  the  excessive  use 
of  liquor,  become  insane,  but  after  ten  years'  abstinence,  includ- 
ing seven  years'  confinement  in  an  asylum,  had  caused  the  in- 
quisition of  lunacy  to  be  vacated,  and  during  the  next  two 
years  and  before  making  the  will,  judiciously  carried  on  a  farm, 
made  improvements  thereon,  employed  workmen,  bought  and 
sold  property,  without  making  any  foolish  bargains,  collected 
rents,  kept  his  account  books  neatly  and  independently,  de- 
tected an  error  in  his  taxes  and  assessments  and  personally  had 
it  corrected  by  the  commissioners  of  appeal,  and  at  the  execu- 
tion of  his  will  showed  a  good  recollection  of  his  kindred  and 
relations  in  life  and  comprehended  the  will  in  all  its  bearings,  al- 
though after  his  insanity,  he  had  never  fully  recovered  his 
firm  mental  vigor,  and  after  restoration  of  his  property  there 
were  intervals  in  which  he  was  incompetent  to  make  a  will,  it 
was  held  that  he  possessed  testamentary  capacity,  and  that  his 
will  was  valid.®'' 

To  avoid  a  will  because  of  the  testator's  drunkenness,  it  must 
clearly  appear  that  he  was  so  much  under  the  influence  of  in- 
toxicants at  the  very  time  of  making  his  will  as  not  to  compre- 
hend his  act.  Intoxication  is  temporary  insanity,  the  brain 
being,  incapable  of  performing  its  functions  for  the  time  being, 
but  this  species  of  derangement  ceases  when  sobriety  brings  re- 
turn to  reason.^* 


''-Peek    V.    Cary,    27    N.    Y.,    9.  461. 

Andress   v.   Weller,   3   N.  J.   Eq.,  6*Fluck   v.    Rea,    51    N.   J.    Eq., 

604.  Bannister  v.  Jackson,  45  N.  J.  233. 

Eq.,  702-707.    Fluck  V.  Rea,  51  N.  esPancoast  v.  Graham,  15  N.  J, 

J.  Eq.,  233,  affirmed  ib.,  639.     El-  Eq.,  294. 

kinton  v.  Brick,  44  N.  J.  Eq.,  154.  '"'In  re  Howard,  9  N.  J.  L.  J., 

^^Kahl  V.  Schober,  35  N.  J.  Eq.,  144. 


ii6  Probate  Law  and  Practice. 

EVIDENCE. 

Presumptions  and  Burden  of  Proof. 

Every  testator  is  presumed  to  be  of  sound  mind  until  the 
contrary  is  proved ;  and  the  burden  of  proof  is  upon  the  party 
attacking  the  testamentary  capacity  of  testator.*^'  So  evidence 
of  testator's  widow  and  son,  who  caveated  against  the  probate 
of  the  will,  that  at  the  time  of  executing  the  will  testator  had 
become  weak  by  age  and  disease,  and  at  times  lacked  the  degree 
of  mental  force  previously  possessed  by  him,  is  insufficient  to 
overcome  proof  showing  testamentary  capacity,  given  by  those 
present  when  the  will  was  signed,  and  by  the  testamentary  wit- 
nesses.®® 

The  burden  resting  upon  one  who  attacks  the  testamentary 
capacity  of  a  testator  may  be  shifted  by  showing  that  insanity 
existed  prior  to  the  making  of  the  disputed  paper;  after  such 
proof,  the  proponent  must  show  that  the  execution  of  the  will 
was  during  a  lucid  interval. **"  So  where  deceased  was  shown 
to  have  been  suffering  from  pneumonia,  accompanied  by  de- 
lirium, for  three  days  before  and  until  death,  which  ensued 
three  days  after  the  purported  execution  of  a  will,  the  burden 
is  on  the  proponent  to  show  that  it  was  executed  while  deceased 
was  in  a  lucid  interval,  with  sufficient  capacity  to  make  a  testa- 
mentary disposition  of  property.'''  But  the  mere  fact,  standing 
alone,  that  testator  had  been  confined  in  a  hospital  for  the  in- 
sane, and  was  discharged  therefrom  as  improved,  is  not  suffi- 
cient proof  that  he  lacked  testamentary  capacity,  where  at  the 
time  of  executing  the  will  he  knew  the  property  of  which  he 
was  possessed  and  where  it  was  invested,  and  was  desirous  of 

^"Trumbull  v.  Gibbons,  22  N.  J.  ®^Van  Riper  v.  Van  Riper,  69  N. 

L.,   117.     Boylan  ads.  Meeker,  28  J.  Eq.,  463.    Affirmed  70  N.  J.  Eq.. 

N.  J.  L.,  274.     Turner  v.  Chees-  808. 

man,  15  N.  J.  Eq.,  243.    Whitenack  •^^Boylan  ads.  Meeker,  28  N.  J. 

V.  Stryker,  2  N.  J.  Eq.,  8.     Sloan  L.,  274.     Turner  v.  Cheesman,  15 

V.  Maxwell,  3  N.  J.  Eq..  563.    El-  N.    J.    Eq.,    243.      Whitenack    v. 

kinton  v.  Brick,  44  N.  J.  Eq.,  154.  Stryker,  2  N.  J.  Eq.,  8.     Goble  v. 

McCoon   V.   Allen,   45   N.   J.   Eq.,  Grant,  3  N.  J.  Eq.,  629.    Elkinton 

708.      Smith    V.    Smith,    48    N.    J.  v.  Brick,  44  N.  J.  Eq.,  154. 

Eq.,    566.      In    re    Craft's    Estate,  '"Coughlin's  Case,  68  N.  J.  Eq., 

94   Atl.,   606.  582. 


Testamentary  Capacity.  117 

disposing  of  it  by  will,  because  conscious  of  the  fatal  nature 
of  his  illness,  and  was  able  to  form  a  judgment  as  to  what 
he  should  do  with  his  property,  with  a  consideration  of  the 
circumstances,  and  employed  means,  such  as  a  sane  person 
would  adopt  to  have  his  intention  as  to  the  distribution  of  his 
property  put  into  effect. '^^ 

Presumptions  when  Drunkenness  is  Alleged. 

Inebriety,  althoiigh  long  continued  and  resulting  occasionally 
in  temporary  insanity,  does  not  require  proof  of  lucid  intervals 
to  give  validity  to  the  acts  of  a  drunkard,  as  is  required  where 
general  insanity  is  proved.  Consequently,  where  habitual  in- 
toxication is  showai,  there  will  be  no  presumption  that  there 
was  incapacitating  drunkenness  at  the  time  the  wnll  was  made ; 
such  condition  must  be  affirmatively  proved  or  the  presumption 
of  capacity  will  prevail. ^- 

Competency  and  Sufficiency  of  Evidence — In  General. 

In  will  contests  involving  the  questions  of  testamentary  ca- 
pacity and  undue  influence,  the  evidence  is  always  permitted 
to  take  a  wide  range,  necessarily  covering  much  of  the  life 
history  of  the  one  whose  will  is  being  contested,  and  going 
largely  into  the  relations  existing  between  the  testator  and 
those  dealing  with  him."  While,  as  has  been  seen,  the  time 
of  the  execution  of  the  will  is  the  period  to  which  the  court 
must  look  to  ascertain  the  state  of  mind  of  the  testator,  still  it 
is  competent  to  show  the  state  of  the  testator's  mind  at  any 
time  previous  or  subsequent  to  the  execution  of  the  will.  Such 
proof  is,  however,  always  liable  to  be  overcome,  if  it  be  satis- 
factorily shown  that  the  testator  at  the  time  he  executed  the 
writing  was  mentally  competent.'^*  The  reason  of  the  rule  is, 
that  the  mind  does  not  ordinarily  pass  suddenly  and  sharply 
from  sanity  or  capacity  into  the  opposite  condition,  nor  from 

^iGrant  v.  Stamler,  68  N.  J.  Eq.,  N.  J.  Eq.,  154- 

555.  "Barber  v.  Baldwin.  128  S.  W. 

"Lee's  Case,  46  N.  J.  Eq.,  193.  (Ky.),  1092. 

Koegel   V.    Egner,    54    N.   J.   Eq.,  ^*Whitenack  v.  Stryker,  2  N.  J. 

623.     In   re  Howard,  9  N.  J.  L.,  Kq.,  8.     Boylan  v.  Meeker,  28  N. 

J.,  144.    Andress  v.  Weller,  3  N.  J.  J.  L.,  274. 
Eq.,   604.     Elkinton    v.    Brick,   44 


ii8  Probate  Law  and  Practice. 

the  latter  into  sanity  or  capacity,  but  gradually  and  impercep- 
tibly. Of  course,  the  value  of  such  evidence  weakens  as  the 
time  lengthens  in  either  direction  from  the  date  of  the  execu- 
tion of  the  will,  and  at  last  ceases  entirely.'^ 

It  is  largely  in  the  discretion  of  the  court  to  fix  the  period 
within  which  the  testimony  of  capacity  should  be  limited. 
Since,  however,  such  evidence  is  admissible  only  for  the  pur- 
pose of  showing  the  mental  capacity  of  the  testator  at  the  time 
of  the  execution  of  the  will,  such  evidence  should  not  be  ad- 
mitted unless  it  will  tend  to  show  his  condition  at  that  time.^* 
Thus,  evidence  has  been  held  admissible  of  the  testator's  men- 
tal condition  fifteen  months  before  he  made  his  will,'^  and  in 
another  case  four  years  before;'^  and  on  an  issue  of  con- 
genital insanity,  it  was  held  proper  to  limit  evidence  of  insanity 
to  six  years  before  the  will  was  made.'*' 

Declarations  and  Conduct  of  Testator. 

The  declarations  of  a  testator  made  either  before  or  after 
the  execution  of  the  will  are  competent  to  show  the  condition 
of  his  mind,  though  not  to  prove  imdue  influence  ;^°  but  the 
testimony  of  witnesses  as  to  oral  declarations  belongs  to  a  class 
of  proofs  which  should  be  received  with  great  caution  and  only 
after  critical  and  suspicious  examination.^^ 

Where  the  insanity  of  the  testator  is  in  question,  and  undue 
influence  is  sought  to  be  established,  it  is  competent  to  show 
that  the  disposition  of  his  property  by  the  writing  propounded 
for  probate  is  in  opposition  to  his  intention^- ;  but  evidence  that 
testatrix,  after  she  made  the  will  in  question,  denied  that  she 
had  made  a  will,  and  said  she  would  not  make  any,  while  com- 

^^Dale's  Appeal,  57  Conn.,  127-  N.  J.  L.,  274.     In  re  Vanderveer, 

143,  17  Atl.  Rep.,  757^763.  20  N.  J,  Eq.,  463.     Reversed,  21 

^^McCoy  V.  Jordan,   184  Mass.,  N.  J.  Eq.,  561.    RusHng  v.  Rusling, 

575,    69    N.    E.,    358.  36  N.  J.  Eq.,  603-608.    Middleditch 

^^Shailer  v.  Bumstead,  99  Mass.,  v.  Williams,  45  N.  J.  Eq.,  726.    Re- 

112.                                         .^  versed  47  N.  J.  Eq.,  585.    See  also 

J^Brashears   v.    Orme,    93    Md.,  "Declarations  of  Testator."  p.  170, 

442,  49  Atl.  Rep.,  620.  infra. 

79Hardy  y.   Martin,   200   Mass.,  ^i  Smith  v.  Smith,  48  N.  J.  Eq., 

548,  86  N.  E.,  939-  566. 

s'^Den  v.  Vancleve,  5  N.  J.  L.,  ^  ^^Turner  v.  Cheesman,  15  N.  J. 

695-775.     Boylan  ads.  Meeker,  28  Eq-,  243-265. 


Testamentary  Capacity.  119 

petent  to  show  that  the  will  is  spurious,  or  that  the  testatrix 
had  not  testamentary  capacity,  is  not  competent  to  show  undue 
influence;*^  and  where  a  testator  by  his  will  gave  power  to  his 
son,  a  semi-imbecile,  to  make  a  testamentary  disposition  of 
the  property  given  him  by  the  will,  it  was  held  that  this  fact  not 
only  did  not  establish  the  testamentary  capacity  of  the  son,  but 
was  to  be  treated  as  the  opinion  merely  of  the  father  in  regard 
to  the  son's  competency  to  make  a  will.*^*  So  the  mere  fact  that 
a  testator  changes  some  of  his  bequests  in  a  subsequent  will  is 
no  ground  for  questioning  his  capacity,  or  its  validity,  or  for 
refusing  it  probate,  since  he  is  not  obliged  to  disclose  his  mo- 
tives or  to  explain  the  reasons  for  the  changes,  or  even  to  men- 
tion them  in  his  will.*^ 

Commission  of  Lunacy. 

Upon  a  question  of  capacity,  a  commission  of  lunacy  is  com- 
petent, but  not  conclusive  evidence.**'  The  inquisition  simply 
makes  a  prima  facie  case  of  lunacy.*" 

Testimony  as  to  Testator's  Business  Ability, 

Testimony  of  witnesses  as  to  testator's  ability  to  transact 
business  is  competent  upon  an  issue  of  mental  capacity;  and 
when  it  is  shown  by  such  testimony  that  testator  was  able  to 
transact  business  with  sagacity  and  decision,  his  testamentary 
capacity  will  be  established.**  So  where  testator  during  his  life 
had  managed  his  own  business  and  accumulated  an  estate  of 
considerable  value,  and,  though  he  had  been  ill  for  a  month, 
went  to  the  office  of  his  attorney  and  there  consulted  concerning 
a  will  which  had  been  drawn  for  him  in  accordance  with  previ- 

83Barker  v.  Barker,  36  N.  J.  Eq.,  sTAber  v.  Clark,  10  N.  J.  L.,  217. 

259;   but  see  Boylan  ads.  Meeker,  Hill    v.    Day,   34    N.    J.    Eq..    150. 

28  N,  J.  L.,  274.  Mott  V.   Mott,  49  N.  J.  Eq.,   192. 

8* .Mexander's  Case,  27  N.  J.  Eq.,  Kern  v.  Kern,  51   N.  J.  Eq.,  574- 

463.     Affirmed  29  N.  J.  Eq.,  649.  583.     Sbarbero  v.  Miller,  72  N.  J. 

^-'Dietz's  Case,  41  N.  J.  Eq.,  284.  Eq.,  248.     Affirmed,  74  N.  J.  Eq., 

Affirmed  42  N.  J.  Eq.,  689.  453- 

sawhitenack  v.  Stryker,  2  N.  J.  ^^In  re  John  Gleespin,  26  N.  J. 

Eq.,  8.     Hunt  v.  Hunt,   13   N.  J.  Eq.,  523.    Bannister  v.  Jackson,  45 

Eq.,   161.     Yauger  v.   Skinner,   14  N.  J.  Eq.,  702. 

N.  J.  Eq.,  389.  •' 


120  Probate  Law  and  Practice. 

ous  instructions,  after  which  the  will  was  executed  in  the  pres- 
ence of  witnesses  who  testified  to  testator's  capacity,  evidence 
of  his  physician  that  testator  was  erratic  and  impulsive  and  at 
some  times  more  rational  than  others,  but  that  at  no  time  was  he 
capable  of  any  really  consecutive,  methodical  thought  or  ar- 
rangement, but  went  by  fits  and  starts  in  all  his  business,  was 
held  insufficient  to  rebut  such  proof  of  capacity.*^  So  where  it 
is  shown  that  a  testator,  who  is  claimed  to  have  been  incompe- 
tent to  make  a  will,  had  both  before  the  execution  of  the  con- 
tested paper  and  afterward  up  to  his  death  managed  and  cared 
for  his  property,  which  was  large,  and  transacted  his  own  busi- 
ness as  he  had  previously  done,  and  at  the  making  of  the  will 
had  shown  knowledge  of  his  estate,  recollection  of  relatives  and 
those  who  might  naturally  expect  his  bounty,  and  a  judgment 
of  what  he  desired  to  do  in  that  respect,  he  was  held  competent 
to  execute  a  will  although  experts  expressed  opinions  against 
his  capacity.^^' 

Unequal  or  Unjust  Disposition  of  Property. 

Unless  a  will  bears  upon  its  face  clear  marks  of  being  the 
product  of  an  unsound  mind,  the  fact  that  the  disposition  made 
by  testator  of  his  property  is  grossly  unequal  is  not  evidence  of 
testamentary  incapacity.*^^  A  will  may  be  contrary  to  the  princi- 
ples of  justice  and  humanity,  may  be  shockingly  unnatural  and 
extremely  unjust,  nevertheless,  if  it  appears  to  have  been  made 
by  a  person  of  sufficient  age  to  be  competent  to  make  a  will,  and 
also  to  be  the  free  and  unconstrained  product  of  a  sound  mind, 
the  courts  are  bound  to  uphold  it.®-  If  it  be  clear  that  the  writ- 
ing propounded  for  probate  is  the  will  of  a  sound  and  disposing 
mind,  the  court  cannot  look  beyond  it  for  the  testator's  mo- 

89Van  Riper  v.  Van  Riper,  69  N.  J.  Eq.,  437.     Kise  v.  Heath,  33  N. 

J.   Eq.,   463.     Affirmed,   70   N.   J.  J.    Eq.,    239.      Collins    v.    Osborn, 

Eq.,  808.  34  N.  J.  Eq.,  511.    Turnure  v.  Tur- 

90Wheaton's  Case,  68  N.  J.  Eq.,  nure.  35  N.  J.  Eq.,  437.     Affirmed 

562.    Affirmed  70  N.  J.  Eq.,  799.  2>7  N.  J.  Eq.,  629. 

9iTrumbull  v.  Gibbons,  22  N.  J.  ^^Middleditch  v.  Williams,  45  N. 

L.,  117.  Boylan  ads.  Meeker.  28  N.  J.   Eq.,   726.     Reversed,   47   N.  J. 

J.  L.,  274.   In  re  John  Gleespin,  26  Eq..  585.    Smith  v.  Smith,  48  N.  J. 

N.  J.  Eq.,  523.    In  re  Wintermute,  Eq..  566. 
27  N.  J.  Eq.,  447.    Affirmed  28  N. 


Testamentary  Capacity.  121 

tives  for  the  disposition  of  his  property  made  by  him ;  the  right 
of  absolute  dominion  which  every  man  has  over  his  own  prop- 
erty is  sacred  and  inviolable.^^  So  a  testator  may  leave  all  of 
his  property  to  his  mistress  and  ignore  his  w'ife."* 

The  law,  however,  looks  upon  an  inofficious  will  with  suspi- 
cion ;  but  if  it  can  be  accounted  for  on  other  reasonable  hypo- 
theses, it  will  not  be  attributed  to  mental  incapacity."^  The 
term  "inofficious"  is  the  equivalent  of  unnatural,  and  is  pred- 
icable  of  such  instruments  as  ignore  the  moral  claims  which 
the  ties  of  kinship  suggest.  When  there  is  a  glaring  disregard 
by  a  testator  of  a  child,  especially  if  such  child  is  helpless  by 
reason  of  infancy  or  disease,  in  favor  of  a  stranger,  the  court, 
while  saying  that  a  man  can  do  as  he  pleases  with  his  property, 
will  be  alert  in  seeking  the  presence  of  some  influence  which 
must  have  warped  the  judgment  and  controlled  the  will  of  the 
testator."''  So,  although  the  omission  by  a  testator  to  make 
any  provision  for  some  of  his  children  will  not  of  itself  suffice 
to  establish  incapacity,  yet  such  an  omission  not  satisfactorily 
accounted  for  is  entitled  to  great  consideration  when  there  is 
any  evidence  of  a  fraudulent  procurement  of  the  will,  or  when 
the  will  was  made  by  the  testator  in  extremis  in  favor  of  those 
around  him;"'  and  so  inequality  and  injustice  in  the  provisions 
of  a  will  may  suffice  to  call  for  an  explanation  from  those  in 
whose  favor  they  are  made."^  Conversely  the  fact  that  a  will 
is  natural  and  reasonable  corroborates  the  correctness  of  the 
opinions  of  the  subscribing  witnesses  that  the  testator  possessed 
testamentary  capacity."" 

Opinion  Testimony. 

The  abstract  opinion  of  any  witness,  medical  or  of  any  other 
profession,  upon  the  question  of  the  testamentary  capacity  of 

^"Turner  v.  Cheesman,  15  N.  J.  ^^Goble  v.  Grant.  3  N.  J.  Eq., 

Eq.,  243.  629. 

9*Smith  V.  Smith,  48  N.  J.  Eq.,  ssLynch   v.   Clements,  24  N.  J. 

566.    Arnault  v.  Arnault,  52  N.  J.  Eq.,  431.  Middleditch  v.  Williams. 

Eq.,  801.  45   N.  J.  Eq.,   726.     Reversed,  47 

95Smith  V.  Smith,  48  N.  J.  Eq.,  N.  J.  Eq.,  585- 

566.  ""In  re  Buckman's  Will,  80  N. 

9" In  re  Willford's  Will,  51  Atl.  J.  Eq.,  556-562. 
Rep.,  501-502. 


122  l^KOBATE   LaW   AND  PRACTICE. 

a  testator  is  of  no  importance.  No  judicial  tribunal  would  be 
justified  in  deciding  against  the  capacity  of  a  testator  upon  the 
mere  opinion  of  witnesses,  however  numerous  or  respectable. 
A  man  may  be  of  unsound  mind,  and  his  whole  neighborhood 
may  declare  him  so;  but  whether  that  unsoundness  legally 
amounts  to  incapacity  for  the  discharge  of  the  important  duty 
of  making  a  final  disposition  of  his  property  is  a  question  which 
the  court  must  determine  upon  its  own  responsibility.  It  does 
not  depend  upon  the  uncertain  or  fluctuating  opinion  of  wit- 
nesses, but  is  to  be  ascertained  by  the  court  by  the  application 
of  certain  rules  of  law  in  the  exercise  of  a  sound  discretion 
regulated  by  those  rules.  The  opinion  of  a  witness  must  be 
brought  to  the  test  of  facts,  that  the  court  may  judge  to  what 
weight  the  opinion  is  entitled.  It  is  proper  to  ask  a  witness  his 
opinion  as  to  the  mental  capacity  of  the  testator  to  discharge 
the  duty  in  question ;  he  must  state,  however,  the  facts  upon 
which  his  opinion  is  based.  The  court  will  judge  of  the  intel- 
ligence of  the  witness  upon  the  subject  to  which  he  testifies, 
and  the  proper  weight  to  be  given  to  his  opinion,  from  the  facts 
and  circumstances  upon  which  he  founds  that  opinion. ^'"^ 

Expert  Testimony 

An  opinion  expressed  by  a  physician  that  testator  was  inca- 
pable of  making  a  will  cannot  require  the  court  to  ignore  a 
testamentary  disposition,  if  the  evidence  satisfactorily  estab- 
lishes that  the  testator  possessed  capacity  to  make  it  under  the 
liberal  rules .  laid  down  by  our  courts.  The  expression  of 
opinion  that,  judging  from  his  condition  when  the  witness  last 
observed  him,  the  testator  would  not  become  more  capable  of 
making  a  will,  while  entitled  to  be  considered,  must  obviously 
yield  to  evidence  that  satisfies  the  judgment  that  he  did  in  fact 
possess  testamentary  capacity  at  the  time  when  he  executed  the 

looStackhouse  v.  Horton,  15  N.  v.  Maxwell,  3  N.  J.  Eq.,  563.    Tur- 

J.    Eq.,   202-208.      Waddington    v.  ner  v.  Cheesman,  15  N.  J.  Eq.,  243. 

Buzby,  45  N.  J.  Eq.,  173,  and  cases  Garrison  v.  Garrison.  15  N.  J.  Eq., 

cited  at  page   174.     Whitenack  v.  266.     Clifton  v.  Clifton,  47  N.  J. 

Stryker,  2  N.  J.  Eq.,  8.     Lowe  v.  Eq.,  22"]. 
Williamson,  2  N.  J.  Eq.,  82.   Sloan 


Testamentary  Capacity'.  123 

will ;'  and  opinions  of  expert  witnesses  expressed  in  answer 
to  hypothetical  questions  which  include  statements  of  facts  not 
established  by  evidence,  must  be  accorded  little  weight  where 
it  appears  that  the  opinions  are  based  in  whole  or  in  part  upon 
such  facts.-  The  testamentary  capacity  of  a  testatrix  who 
made  her  will  while  in  the  latter  stages  of  consumption  may  be 
established  against  the  hypothetical  opinions  of  experts  as  to 
the  effect  upon  the  mind  of  the  medicines  usually  employed  in 
such  cases. ^ 

Testimony  of  Subscribing  Witnesses. 

In  regard  to  the  weight  to  be  given  to  the  opinion  of  the  sub- 
scribing witnesses  to  a  will  as  to  testator's  testamentary  capac- 
ity, the  older  cases  held  that  opinions  of  the  testamentary  wit- 
nesses and  their  statements  of  the  events  taking  place  at  the 
execution  of  the  will  are  most  to  be  relied  on  in  determining 
the  mental  capacity  of  the  testator  when  he  made  the  will.* 
The  modern  rule,  however,  is  that  the  mere  fact  of  a  man's 
having  affixed  his  signature  to  a  will  as  a  subscribing  witness 
does  not  entitle  his  opinion  as  to  the  competency  of  the  testator 
to  any  more  weight  than  that  of  any  one  else  who  may  be  called 
upon  to  testify ;  and  if  the  subscribing  witness  is  a  stranger, 
and  has  no  opportunity  to  ascertain  and  judge  of  the  testator's 
capacity,  his  opinion  is  not  entitled  to  as  much  weight  as  that 
of  a  friend  who  has  conversed  with  the  testator  at  about  the 
same  time;"'  but  as  has  been  seen,  the  fact  that  the  will  is  in 
itself  natural  and  reasonable  is  a  fact  corroborative  of  the 
correctness  of  the  opinions  of  the  subscribing  witnesses.^ 

A  party  opposing  the  probate  of  the  will  may  show  state- 

'Grant  v.  Stamler.  68  N.  J.  Eq.,  Eq.,  8.     Sloan  v.  Maxwell,  3  N.  J. 

555-  Eq.,  563-573. 

-Wheaton's  Case,  68  N.  J.  Eq.,  ^Turner  v.  Cheesman,   15  N.  J. 

562.     Affirmed  70  N.  J.  Eq.,  799.  Eq.,  243.    Garrison  v.  Garrison,  15 

Stackhouse   v.    Horton.    15    N.   J.  N.    J.    Eq.,   266.      Lee's    Case.   46 

Eq.,  202.     Pancoast  v.  Graham,  15  N.  J.  Eq.,  193-201. 

N.  J.  Eq.,  294.  «Pancoast  v.  Graham,   15  N.  J. 

•■'Andrew's   Case,   33   N.  J.   Eq.,  Eq.,   294.     Clifton   v.   Clifton,   47 

514.  N.  J.   Eq.,  227. 

*Whitenack  v.  Stryker.  2  N.  J. 


124  Probate  Law  and  Practice. 

ments  made  out  of  court  by  one  of  the  subscribing  witnesses 
in  order  to  contradict  his  testimony ;'  but  the  bad  character  of 
a  deceased  witness  for  veracity  cannot  be  given  in  evidence  for 
the  purpose  of  invalidating  the  will.* 

'Otterson  v.  Hofiford,  36  N.  J.        ^goylan  ads.  Meeker,  28  N.  J. 
L.,  129,  but  see  Bojlan  ads.  Meek-    L.,  274. 
er,  28  N.  J.  L.,  274. 


CHAPTER  VIII. 


EXECUTION  OF  WILLS. 

STATUTORY  REQUIREMENTS, 

Provisions  of  Statute. 

In  this  state,  four  things  are  requisite  to  the  execution  of  a 
valid  will.  i.  It  must  be  in  writing.  2.  It  must  be  signed  by 
the  testator.  3.  The  signature  must  be  made  by  him  in  the 
presence  of  two  witnesses,  or  the  making  thereof  acknowl- 
edged by  him  in  their  presence.  4.  It  must  be  declared  by  him 
in  their  presence  to  be  his  last  will  and  testament.  These 
requisites  are  not,  except  the  third  one.  in  the  alternative.  The 
third  contains  an  alternative,  but  one  of  these  alternatives  must 
take  place ;  he  must  make  the  signature  in  the  presence  of  the 
witnesses,  or  he  must  acknowledge  the  signature  theretofore 
made  to  be  his,  which  acknowledgment  must  be  made  in  the 
presence  of  two  witnesses ;  and  in  addition  to  this  he  must 
declare  the  paper  to  be  his  last  will  and  testament.^ 

'In  re  Buck,  31  N.  J.  L.  J.,  84.  will,  in  presence  of  two  wit- 
In  re  McElwaine's  Will,  18  N.  J.  nesses  present  at  the  same  time, 
Eq.,  499.  Ludlow  V.  Ludlow,  36  who  shall  subscribe  their  names 
N.  J.  Eq.,  597-599.  Elkinton  v.  thereto,  as  witnesses,  in  the  pres- 
Brick,  44  N.  J.  Eq.,  154-166.  The  ence  of  the  testator;  and  all  wills 
statute  provides  as  follows :/  "All  and  testaments  of  persons  dying 
wills  and  testaments  of  persons  since  the  day  above  mentioned, 
dying  after  this  act  shall  take  ef-  made  in  the  manner  herein  pre- 
fect, or  who  may  have  died  since,  scribed,  by  any  person  competent 
the  fourth  day  of  July,  in  the  year  by  law  to  make  such  will,  shall  be 
of  our  Lord  eighteen  hundred  and  sufficient  to  devise,  pass,  and  be- 
fifty,  shall  be  in  writing,  and  shall  queath  all  estates  and  property, 
be  signed  by  the  testator,  which  real  or  personal,  and  all  rights  of 
signature  shall  be  made  by  the  tes-  any  kind,  and  to  appoint  a  guard- 
tator,  or  the  making  thereof  ac-  ian  or  guardians  to  any  child  of 
knowledged  by  him,  and  such  the  testator  during  infancy.",  4 
writing    declared    to    be    his    last  Comp.  Stat.,  5867,  sec.  24. 

125 


126  Probate  Law  and  Practice. 

Estates  Per  Autre  Vie 

At  common  law,  an  estate  per  autre  vie  was  not  devisable, 
but  upon  the  death  of  the  tenant,  the  property  was  left  open 
without  any  one  having  a  legal  title  to  it ;  neither  the  rever- 
sioner, because  the  previous  estate  had  not  expired,  nor  the 
heir  of  the  tenant,  for  the  estate  was  not  one  of  inheritance, 
nor  the  executor  of  the  tenant,  because  it  was  a  freehold  and 
not  a  chattel  interest.  The  consequence  was  that  the  first  per- 
son who  chose  to  take  possession  might  do  so,  and  was  called  a 
general  occupant."  This  curious  lawless  condition  of  an  estate 
for  the  life  of  another  after  the  death  of  the  tenant,  the  other 
still  surviving,  was  abolished  by  the  twelfth  paragraph  of  the 
statute  of  frauds.^ 

In  this  state,  the  power  to  devise  an  estate  per  autre  vie  was 
first  declared  in  Judge  Patterson's  Act  concerning  Wills.^** 
The  section  containing  this  power  still  appears  as  a  section  of 
the  Act  concerning  Wills,  and  is  a  modification  of  the  twelfth 
paragraph  of  the  statute  of  frauds.* 

An  estate  per  autre  vie  belonging  to  a  married  woman,  who 
dies  before  the  cestui  que  vie,  passes  by  her  will  as  realty,  free 


22    Bl.    Com.,    255.      I    Wasbh.  and  for  transferring  01  uses  into 

Real  Proper.,  93.  possession,"     passed     the     seven- 

^29  Charles  II,  par.,   12.  teenth  day  of  March,  in  the  year 

3aPat.  L.  P.,   189.  of  our  Lord,  one  thousand  seven 

^Folwell    V.    Folwell,    65    N.    J.  hundred     and     thirteen-fourteen ; 

Eq.,  526.     Affirmed,  67  N.  J.  Eq.,  (i   Gen.   Stat.,  p.  875.     Repealed, 

72J.     "All    estates    per   autre   zne  see  P.  L.  1898,  pages  711-713),  and 

shall  be  devisable  by  will  in  writ-  if  no  such  devise  thereof  be  made, 

ing,  signed  and  published  by  the  the  same  or  so  much  thereof  as 

party  so  devising  the  same  in  the  shall  not  be  so  devised,  shall  go 

presence  of  three  subscribing  wit-  to  the  executors  or  administrators 

nesses,  and  proved  and   recorded  of  the  party  who  had  the  estate 

in  the  manner  prescribed  in  and  'thereof    by    virtue    of    the    grant, 

by  the  Act  entitled  "An  Act  for  and  shall  be  assets  in  their  hands, 

confirming     of     conveyances     of  and  be  applied  and  distributed  in 

lands   made   and   to   be   made   by  the  same  manner  as  the  personal 

wills  and  powers  of  attorney,  and  estate  of  the  testator  or  intestate." 

declaring  what  exemplifications  of  see  4   Comp.    Stat.,   5876,   sec.   24, 

records  and  other  things  shall  be  4   Comp.    Stat.,    5861,    sec.    i,   but 

holden  and  received  for  good  evi-  supra,   which   modifies   the   meth- 

dence    of    estates    of    inheritance,  od  of  executing  wills. 


Execution  of  Wills.  127 

from  any  claim  of  a  husband  thereto  as  personalty  by  virtue 
of  his  jus  tnariti.^ 

SIGNATURE  BY  TESTATOR. 

In  General. 

In  general,  the  maxim  qui  facit  per  alinm  facit  per  se  makes 
a  signing  by  an  agent  a  signing  by  the  principal.  The  statute, 
however,  says  that  the  signature  to  a  will  shall  be  made  by  the 
testator,  or  the  making  thereof  acknowledged  by  him.  It  does 
not  speak  of  acknowledging  or  adopting  the  signature,  but 
of  making  it.  The  fifth  section  of  the  statute  of  frauds,*^ 
which  was  in  force  in  this  state  until  the  act  of  17 13-14, 
required  that  wills  should  be  signed  by  the  testator,  "or  by 
some  other  person  in  his  presence  and  by  his  direction."  The 
statutes  of  this  state  of  1713-14  and  of  185 1,"  in  declaring 
the  manner  in  which  wills  should  be  executed,  have  omitted 
these  words,  and  must  be  held  to  have  had  an  object  in  the 
omission.  The  words  of  our  present  act  are  stronger  than 
those  of  the  statute  of  frauds,  as  has  been  seen.  They  are, 
"the  signature  shall  be  made  by  the  testator,  or  the  making 
thereof  acknowledged  by  the  testator."  In  thus  providing 
more  carefully  for  the  execution  of  a  will,  it  must  be  supposed 
that  they  intended,  by  omitting  the  words  of  the  English  act, 
to  require  in  all  cases  some  actual  signature  by  the  testator  him- 
self. The  signing  required  by  the  statute  must  be  held  to  be 
some  signature,  the  making  of  some  mark  or  signiim  upon  the 
paper,  so  as  to  identify  and  give  efificacy  to  it  by  some  act,  and 
not  by  words  merely.  It  follows,  therefore,  that  it  is  not  suffi- 
cient that  the  signature  be  made  by  another,  though  at  the 
request  and  in  the  presence  of  the  testator ;  and  no  acknowledg- 
ment of  such  a  signature  by  the  testator  will  make  it  valid.* 

The  object  of  the  law  in  requiring  that  the  signature  of  the 
testator  to  a  will  shall  be  made  by  him  or  the  making  thereof 
acknowledged  by  him  in  the  presence  of  two  witnesses  in  addi- 
tion to  requiring  that  the  testator  shall  also  declare  the  paper 

^Folvvell  V.  Folwell.  65  N.  J.  Eq.,  "^4  Comp.  Stat.,  5867,  sec.  24. 

526.     Affirmed  67  N.  J.  Eq.,  727.  Hn  re  McElwaine,  18  N.  J.  Eq., 

"29    Charles    II,    ch.    3.  499. 
10 


128  Probate  Law  and  Practice. 

to  be  his  last  will  and  testament  in  the  presence  of  those  two 

witnesses,  is  to  have  proof  of  the  genuineness  of  the  signature 

by  the  subscribing  witnesses,  without  being  obliged  to  resort  to 

other  evidence  in  addition  to  theirs  as  to  whether  the  paper 

offered  for  probate  contains  the  signature  of  the  testator  or 

not.^ 

Testator  May  Receive  Assistance. 

The  statutory  requirement  is  complied  with  though  the  testa- 
tor's hand  be  guided  in  writing  his  signature  or  making  his 
mark  on  the  paper,  if  his  purpose  to  sign  and  his  best  physical 
effort  to  do  so  participate  in  the  act,^°  and  this  without  refer- 
ence to  the  question  as  to  whether  testator  could  write  at  the 
time.^^ 

Position  of  Signature. 

The  statute  provides  that  a  will  must  be  signed.  It  does  not 
say  it  must  be  subscribed;  and  therefore  the  name  of  the  testa- 
tor written  in  by  himself  on  any  part  of  the  testament,  with  the 
intention  that  his  name  so  written  should  be  a  signing  of  the 
will,  satisfies  the  statute.  The  signature  may  be  at  the  begin- 
ning, middle  or  end,  or  on  the  side.  So  if  the  testator  writes 
his  name  in  or  under  the  attestation  clause,  with  the  intention 
thereby  to  make  the  same  his  signature,  even  if  such  clause  be 
expressed  in  the  third  person,  and  the  witnesses  see  him  write 
it,  and  the  will  is  duly  executed  in  other  respects,  the  testament 
is  valid. ^- 

Acknowledgment  of  Signature  By  Testator. 

The  statute^^  permits  a  testator  to  sign  his  will  in  the 
absence  of  the  witnesses,  provided  he  in  their  presence 
acknowledges  the  signature  so  made  by  him  as  his  own;^*  but 

^In  re  Laing,  17  N.  J.  L.  J.,  266-  Chaffee  v.  Baptist  Alissionary  Con- 

270.  vention,  10  Paige,  85. 

loin  re  McElwaine,  18  N.  J.  Eq.,  i-In  re   Phelan's   Estate,  82   N. 

499-503.    Fritz  V.  Turner,  46  N.  J.  J.  Eq.,  316.     Affirmed,  ib.,  647. 
Eq.,  515.     Reversed,  49  N.  J.  Eq.,  ^^4  Comp.  Stat.,  5867,  sec.  24. 

343.     In  re  Blackslee,  24  N.  J.  L.  See  page  125,  n,  supra. 
J.,   429.  i*In  re  McElwaine,  18  N.  J.  Eq., 

1^1  Williams  on  Executors,  64.  499.      In    re    Laing,    17    N.    J.    L. 

Chase  v.  Kittredge,   11  Allen,  49.  J.,  266-270. 


Execution  of  Wills.  129 

where  the  evidence  proves  that  the  testator  did  not  sign  the 
will  in  the  presence  of  the  two  attesting  witnesses,  and  there 
is  no  proof  that  he  acknowledged  his  signature  in  the  presence 
of  either  of  them,  probate  of  the  will  will  be  refused  ;^''  and 
when  it  is  clear  that  testator  did  not  sign  the  will,  no  acknowl- 
edgment of  the  signature  by  him  will  be  sufficient  to  satisfy  the 
statute. ^^^ 

It  is  not  necessary  that  the  acknowledgment  by  the  testator 
of  his  signature  should  be  in  words.  It  is  sufficient  if  enough 
is  said  or  done  by  him,  or  by  another  with  his  consent,  to  bring 
home  to  the  witnesses  the  fact  that  the  signature  appended  to 
the  will  is  that  of  the  testator.  So  evidence  that  the  testator 
took  his  will,  a  holograph,  to  two  old  friends,  who  were  famil- 
iar with  his  signature,  and  exhibiting  it  to  them,  said :  "This 
is  my  will,  do  you  recognize  the  signature  as  mine?"  and  that 
on  their  answering  in  the  affirmative,  he  asked  them  to  sign 
the  will  as  witnesses,  is  sufficient  to  show  that  the  testator 
acknowledged  his  signature  to  such  witnesses.^'  The  testator 
must,  however,  by  some  act  or  sign  adopt  the  statements  of 
the  third  person  as  his  own,  otherwise  there  will  be  no  acknowl- 
edgment. So  where  a  testator  did  not  sign  his  will  in  the  pres- 
ence of  the  attesting  witnesses,  and  made  no  sign  or  assent 
when  the  scrivener  said,  apparently  with  reference  to  the 
paper:  "This  is  his  name,"  there  is  no  valid  acknowledgment 
of  the  signature. '^^  And  so  the  fact  that  a  testator  said  the 
paper  was  his  will  is  not  an  acknowledgment  of  his  signature 
within  the  meaning  of  the  statute  ;  he  must  not  only  declare  the 
paper  to  be  his  last  will  and  testament,  but  he  must  either  sign 
the  paper  in  the  presence  of  the  witnesses,  or  must  in  their 
presence  acknowledge  the  signature  thereto  to  be  his.'^ 

When  Signature  Must  Be  Made  or  Acknowledged. 

It  is  now  settled,  in  this  state,  that  a  true  interpretation  of 
the  Wills  Act  requires  that  the  witnesses  are  to  attest  by  their 

i-'Tn  re  Coles'  Will,  47  Atl.  Rep.,  Eq.,  761.     Affirmed,  57  N.  J.  Eq., 

385.     In   re  McElwaine,    18  N.  J.  664. 
Eq.,  499.  i8\[a„„ers  v.  Manners,  72  N.  J. 

i^In  re  McElwaine,  18  N.  J.  Eq.,  Eq.,  854. 
499.  i^In  re  Buck,  31  N.  J.  L.  J.,  84. 

'^Stewart  v.   Stewart,  56  N.  J. 


130  Probate  Law  and  Practice. 

subscription  the  testator's  signature  or  acknowledgment  of  sig- 
nature, as  well  as  the  publication  of  the  will  by  him  in  their 
presence,  and  that  it  is  essential  to  the  validity  of  a  will  that 
everything  required  to  be  done  by  the  testator  should  precede 
in  point  of  time  the  subscription  of  the  witnesses.  If,  there- 
fore, the  witnesses  to  a  will  sign  before  the  testator,  the  will  is 
invalid.^" 

In  the  Presence  of  Witnesses. 

The  statute  requires  that  both  the  witnesses  shall  be  present 
when  the  signature  is  made,  or  the  making  thereof  acknowl- 
edged by  the  testator  ;-^  but  if  the  subscribing  witnesses  were 
so  situated  that  they  could  and  naturally  would  see  the  signing, 
it  is  sufficient,^-  and  it  is  not  necessary  that  the  witnesses  should 
see  what  the  testator  wrote  or  be  able  to  identify  his  signature, 
so  long  as  they  could  see  him  write.-^ 

Where  the  will  is  signed  in  the  same  room  with  the  witnesses, 
it  is  prima  facie  a  compliance  with  the  statute  ;-*  but  where  the 
fact  that  one  of  the  witnesses  was  not  in  the  same  room  with 
the  testator,  at  the  time  the  testator  and  the  other  witness 
signed  the  will,  is  clearly  proven,  the  burden  is  thereupon 
imposed  upon  the  proponent  to  establish  that  the  witness  in  the 
adjoining  room  could  see  the  execution  of  the  will  and  that  his 
signature  in  attestation  thereof  could  be  seen  by  the  testator 
and  the  other  subscribing  witness.-^ 

PUBLICATION  OF  WILL  BY  TESTATOR. 
Necessity,  Requisites  and  Sufficiency. 

To  comply  with  the  requirements  of  the  statute,  there  must 

""Lacey  v.  Dobbs,  63  N.  J.  Eq.,  ^sL^cgy  v_  Dobbs,  61  N.  J.  Eq., 

325.     Bioren  v.   Nesler,   77  N.  J.  575.     Reversed  63  N.  J.  Eq.,  325. 

Eq.,  560.    Beggan's  Case,  68  N.  J.  Ayres  v.  Ayres,  43  N.  J.  Eq.,  565. 

Eq.,  572.  24Ste^art  v.   Stewart,  56  N.  J. 

2iCompon  v.  Mitton,  12  N.  J.  L.,  Eq.,  761.     Affirmed,  57  N.  J.  Eq.. 

70.     Ludlow  v.  Ludlow,  36  N.  J.  664. 

Eq.,  597.    Ayres  v.  Ayres,  43  N.  J.  ^sgerdan's   Case,  65   N.  J.   Eq.. 

Eq.,  565-569.  681.     Bogert  v.  Bateman,  65  Atl. 

^^Compton  V.  Mitton,   12  N.  J.  Rep.,   238. 
L.,  70. 


Execution  of  Wills.  131 

be  some  declaration  by  the  testator  in  the  presence  of  the  wit- 
nesses that  the  instrument  which  he  executes  is  his  will,  and  a 
communication  by  liim  to  the  witnesses  that  he  desires  them 
to  attest  it  as  such,  so  that  the  witnesses  know  that  it  is  testa- 
tor's will  which  they  are  asked  to  witness.-''  but  it  is  not  neces- 
sary that  the  testator  should,  by  his  own  words,  declare  the 
writing  to  be  his  last  will ;  this  may  be  done  in  his  presence 
and  hearing  by  another  acting  for  him  and  with  his  assent,  or 
the  publication  of  the  will  may  be  by  act  or  sign.  It  is  suffi- 
cient if  enough  is  said  or  done  in  the  presence  and  with  the 
knowledge  and  acquiescence  of  the  testator  to  give  the  wit- 
nesses to  understand  distinctly  that  the  testator  desires  them  to 
know  that  the  paper  produced  is  his  will,  which  they  are  to 
attest  as  such  ;-'  and  all  that  is  required  is  that  the  testator 
should  make  this  known  clearly,  in  any  way  by  which  one  mind 
can  communicate  with  another.-"^  So  where,  after  the  testator 
had  signed  the  will  in  the  presence  of  the  witnesses,  one  of 
them  in  the  presence  of  the  other  asked  if  the  paper  was  all 
right,  and  the  testator  replied :  "That  is  all  right,  John,  that  is 
my  will,"  it  was  held  that  the  instrument  was  sufficiently 
declared  by  the  testator  as  his  last  will.-^  So  where  deceased 
employed  a  scrivener  to  draw  his  will,  and  was  directed  by  the 
scrivener  to  come  to  his  house  with  two  witnesses  to  witness 
its  execution,  and  deceased  called  upon  a  friend  and  requested 
him  and  his  son  to  accompany  him  to  the  house  of  the  scrivener 
to  witness  the  execution  of  his  will,  exhibiting  to  them  at  the 
same  time  a  folded  paper,  whereupon  they  immediately  went 
with  the  deceased  to  the  scrivener's  house,  deceased  on  the  way 
stating  to  them  his  reasons  for  making  a  will,  and  at  the  house 
and  in  the  presence  of  the  scrivener  a  folded  paper  was  pro- 

26Mundy    v.    Mundy,    15    N.    J.  N.  J.  Eq.,  725.    Affirmed.  52  N.  J. 

Eq.,   290.     Ludlow   V.   Ludlow,  36  Eq.,  2i7-     Robbins  v.  Robbins.  50 

N.  J.  Eq.,  597.  N.  J.  Eq.,  742.     Hildreth  v.  Mar- 

-^Mundy  v.  Mundy,  15  N.  J.  Eq.,  shall,  51  N.  J.  Eq.,  241.    Vernon  v. 

290.    Turnure  v.  Turnure.  35  N.  J.  Vernon,  69  N.  J.  Eq.,  759. 

Eq.,  437.     Affirmed,  2,7  N.  J.  Eq.,  ^Hn    re    Dillon's    Will,   87    Atl. 

629.     Ludlow  V.  Ludlow,  36  N.  J.  Rep.,  161.    82  N.  J.  Eq.,  322. 

Eq.,  597-    Ayres  v.  Ayres,  43  N.  J.  2!./^yrgs  y    Ayres,  43  N.  J.  Eq., 

Eq.,  565.    Elkinton  v.  Brick,  44  N.  565. 
J.  Eq.,  154.     Darnell  v.  Buzby,  50 


r52  Probate  Law  and  Practice. 

duced  by  deceased,  which  the  witnesses  believed  was  that  pre- 
viously shown  to  them  and  that  drawn  by  the  scrivener, 
and  thereupon  it  was  duly  signed  and  witnessed,  it  was  held 
that  this  transaction,  commencing  with  the  announcement  by 
deceased  at  the  house  of  his  friends  that  he  was  about  to  make 
his  will  and  the  exhibition  of  a  paper  as  if  it  was  that  to  be 
executed,  and  ending  at  the  house  of  the  scrivener,  when  a 
similar  paper  was  produced  by  deceased  and  executed,  was  a 
continuous  one.  and  that  a  formal  and  sufficient  publication 
was  thus  shown. ^"^  Equivocal  acts  and  words  which  are  fully 
susceptible  of  a  meaning  inconsistent  with  will  making  will  not. 
however,  be  a  sufficient  declaration  of  a  will,  though  they  be 
supported  by  a  perfect  attestation  clause,  the  contents  of  which 
are,  however,  not  made  known  to  both  witnesses  f^  and  where 
two  of  three  witnesses  to  an  alleged  will  did  not  know  that  the 
instrument  was  intended  as  a  will  it  was  held  that  there  was  not 
a  compliance  with  the  statute  as  to  publication.^^'' 

By  Assenting  to  Statements  of  Another. 

It  is  settled  law  that  a  testator  may  publish  a  will  by  assent- 
ing to  a  statement  made  in  his  presence,  and  that  such  an 
assent  may  be  made  by  some  act  or  sign.  If,  however,  there 
was  no  act  or  sign  by  the  testator  adopting  such  statement  as 
his  own,  publication  cannot  be  inferred."-  Where  the  scrive- 
ner, or  other  person,  announces  to  the  witnesses  that  the  paper 
in  question  is  the  will  of  the  testator,  who  is  present  and  hears 
the  statement  made,  and  without  more  the  testator  thereupon 
executes  the  will,  this  is  a  sufficient  publication ;  his  intelligent 
execution  of  the  will  after  such  a  declaration  is  an  acquiescence 
in  and  assent  to  it.^^  So  where  a  will  contained  the  usual 
attestation  clause,  and  it  appeared  that  when  the  witnesses  were 

soBreining's  Case.  68  N.  J.  Eq.,  Eq.,  573.     Affirmed,  77  N.  J.  Eq., 

553.  560.    In  re  Gahagan,  82  N.  J.  Eq.. 

3iDarnell    v.    Buzby,    50    N.    J.  601. 
Eq.,  725.     Affirmed,  52  N.  J.  Eq.,  ^sHildreth  v.  Marshall,  51  N.  J. 

337.  Eq.,    241.      Bioren    v.    Nesler,    76 

3iain  re  Van  Handlyn's  Will.  83  N.  J.   Eq.,   573.     Affirmed,  77   N. 

N.  J.  Eq.,  290.  J.  Eq.,  560.    Manners'  Case,  72  N. 

32Manners'  Case,  72  N.  J.  Eq.,  J.  Eq.,  854. 
854.     Bioren  v.  Nesler,  76  N.  J. 


Execution  of  Wills.  133 

requested  to  sign  the  will,  it  was  spoken  of  as  the  testator's 
will,  and  one  witness  testified  that  the  other  told  him  in  the 
presence  and  hearing  of  the  testator  what  the  paper  was,  and 
also  that  the  will  had  been  read  aloud  in  the  presence  of  the 
testator,  who  expressed  his  approval  of  it,  in  the  presence  of  all 
the  witnesses,  before  it  was  signed,  it  was  held  that  there  was 
sufficient  evidence  of  publication  to  warrant  probate.^* 

Time  When  Publication  Must  Be  Made 

If  the  publication  is  made  before  the  testator  signed,  it  is  a 
sufficient  compliance  with  the  statute.^^  To  make  the  will 
valid,  the  publication  must,  however,  as  has  been  seen,  precede 
the  subscription  of  the  will  by  the  witnesses.^*"' 

In  the  Presence  of  Witnesses. 

The  statute  requires  that  both  the  witnesses  and  the  testator 
should  be  present  when  the  declaration  is  made  that  the  instru- 
ment about  to  be  executed  is  his  last  will.^' 

Evidence 

The  best  recollection  of  a  witness  is  sufficient  to  establish  a 
fact  coming  within  his  observation  and  hearing ;  and  when  that 
fact  is  the  use  of  words  by  a  testatrix,  from  which  the  witness 
knew  that  the  paper  which  she  and  the  other  witness  were 
requested  to  sign  was  a  will,  it  is  sufficient  to  establish  it  as 
a  will,  even  though  the  witness  is  unable  to  recall  the  exact 
language  used.'^ 

SIGNATURE   BY   WITNESS. 

In  General. 

The  provision  of  the  statute  of  wills  requiring  the  witnesses 
to  subscribe  their  names  to  the  will  in  the  presence  of  the  testa- 

3*Turnure  v.  Turnure,  35  N.  J.  Eq.,  560.    Beggans'  Case,  68  N.  J. 

Eq.,  437.     Affirmed.  37  N.  J.  Eq.,  Eq.,  572. 
629.  3-(3ompton  v.  Mitton,    12  N.  J. 

^^Errickson  v.  Fields,  30  N.  J.  L.,  70.     Ludlow  v.  Ludlow,  36  N. 

Eq.,  634.     Mandeville    v.    Parker,  J.  Eq.,  597.    Ayres  v.  Ayres.  43  N. 

31  N.  J.  Eq.,  242-248.  J.  Eq.,  565-569. 

•■'oLacey  v.  Dobbs,  63  N.  J.  Eq..  ^^Vernon   v.   Vernon.   69   N.   J. 

325.     Bioren   v.   Nesler,   ^^   N.  J.  Eq..  759-762. 


134  Probate  Law  and  Practice. 

tor  is  designed  to  prevent  substitution  and  fraud  upon  an 
intending  testator.""  No  amount  of  proof  that  the  offered 
paper  signed  by  deceased  was  that  which  the  subscribing  wit- 
nesses signed  will  avail  to  establish  it  as  a  will,  if  it  fails  to 
show  that  their  signatures  were  affixed  in  the  presence  of  the 
deceased.*'^  In  order  to  comply  with  the  provisions  of  the 
statute,  the  witnesses  must  be  in  such  a  position  when  they  sign 
the  will  as  witnesses  that  the  testator  can  see  them  and  be  able 
to  distinguish  the  act  which  they  are  performing.*^  It  is  not, 
however,  necessary  that  the  witnesses  be  so  close  to  the  testa- 
tor that  he  sees  the  signatures  made  by  them.  If  witnesses, 
when  they  sign,  are  in  a  position  where  testator  can  see  the 
motion  of  their  pens,  even  though  he  cannot  distinguish  the 
letters  which  the  pens  are  forming,  it  will  be  a  compliance  with 
the  statute.*- 

Burden  of  Proof. 

Where  the  will  is  signed  by  the  witnesses  in  the  same  room 
with  the  testator,  it  is  prima  facie  in  the  presence  of  the  testa- 
tor.*^ On  the  other  hand,  an  attestation  made  in  another  room 
is  prima  facie  not  in  the  presence  of  the  testator.** 

Address  of  Witness  Unnecessary. 

There  is  no  legal  requirement  that  a  witness  to  a  will  should 
append  a  statement  as  to  his  residence  to  his  signature.*^ 

In  the  Presence  of  Each  Other. 

The  statute  concerning  wills  does  not  in  express  words 
require  that  the  witnesses  shall  sign  the  will  in  the  presence  of 

39Mandeville    v.    Parker.   31    N.  ■'sMandeville  v.  Parker,  31  N.  J. 

J.  Eq.,  242.     Beggans'  Case  68  N.  Eq.,  242-252.     Stewart  v.  Stewart, 

J.  Eq.,  572.  56  N.  J.  Eq.,  761-765-    Affirmed,  57 

40Beggans'.  Case,  68  N.  J.  Eq.,  N.  J.  Eq.,  664.    Ayres  v.  Ayres,  43 

572.  N.  J.  Eq.,  565-570. 

4iMandeville  v.  Parker,  31  N.  J.  ^^Mandeville  v.  Parker,  31  N.  J. 

Eq.,  242.     Ayres  v.  Ayres,  43  N.  Eq.,  242-252.     Ayres  v.  Ayres,  43 

J.  Eq.,  565.  N.  J.  Eq.,  565-570. 

^^Ayres  v.  Ayres,  43  N.  J.  Eq.,  ^^In  re  Sandmann's  Will,  68  Atl. 

565.    Lacey  v.  Dobbs,  61  N.  J.  Eq.,  Rep.,  754. 
575.     Reversed,  63  N.  J.  Eq.,  325- 


Execution  of  ^^'ILLs.  135 

each  other.  In  the  case  of  Iv  re  Clark's  [f^/7/.*"  it  was  held 
that  under  the  provisions  of  the  statute  of  wills  it  is  not  requi- 
site to  the  valid  execution  of  a  will  that  the  witnesses  should 
sign  in  the  presence  of  each  other.  This  case  was  affirmed  on 
appeal  by  the  Court  of  Errors  and  Appeals,  but  that  court 
declined  to  express  an  opinion  as  to  whether  such  a  require- 
ment, though  not  distinctly  expressed  in  the  act,  results  by 
natural  and  necessary  implication  from  the  statutory  lan- 
guage.*' 

Request  To  Witness  To  Attest  Will. 

The  witnesses  must  attest  the  will  at  the  request  of  the  testa- 
tor,*^ but  it  is  not  necessary  that  the  testator  should  openly  make 
the  request ;  his  acquiescence  when  the  witnesses  are  called  in 
for  that  purpose  by  another  is  sufficient.*®  So  a  request  may 
be  implied  by  the  reading  of  the  attestation  clause  in  the  pres- 
ence of  the  testator  and  the  witnesses  after  the  signing  by  the 
witnesses.^" 

When  Signature  of  Witnesses  Must  Be  Made. 

It  is  settled  that  the  witnesses  are  required  by  the  statute  to 
attest  by  their  subscription  the  testator's  signature  or  acknowl- 
edgment of  signature,  as  well  as  the  publication  of  the  will  by 
him  in  their  presence,  and  that  it  is  essential  to  the  validity  of 
the  will  that  everything  required  to  be  d''ine  by  the  testator 
should  precede  in  point  of  time  the  subscription  of  the  wit- 
nesses. If,  therefore,  the  witnesses  sign  before  the  testator, 
or  before  the  publication  of  the  will  by  him,  the  will  is  invalid.'^' 

Who  May  Be  Witnesses — In  General, 

The  general  rule  is  that  all  persons  competent  to  give  testi- 

^'■'52    Atl.    Rep.,    222.  J.  Eq..  565-572.    Elkinton  v.  Brick, 

*'Clark  V.   Clark,  64  N.  J.   Eq.,  44    N.    J.    Eq.,    154.      Darnell    v. 

361.  Huzby,    50    N.    J.    Eq.,    725.      Af- 

■♦^Whitenack  v.  Stryker,  2  N.  J.  firmed,  52  N.  J.  Eq.,  337. 
Eq.,  8.    Mundy  v.  Mundy,  15  N.  J.  ^"Stewart's  Will,  2  Redf.   Sur., 

Eq.,  290.    Darnell  v.  Buzby,  50  N.  N.  Y.,  77. 

J.   Eq.,   725.     Affirmed,    52    N.   J.  ^^Lacey  v.  Dobbs,  63  N.  J.  Eq., 

Eq.,  337.  325.     Bioren   v.   Nesler,  77   N.  J. 

^'•'Whitenack  v.  Stryker,  2  N.  J.  Eq.,    560.     Beggans'    Case,   68    N. 

Eq.,  8.     Mundy  v.  Mundy,   15  N.  J.  Eq.,  572. 
J.  Eq.,  290.    Ayres  v.  Ayres,  43  N. 


136  Probate  Law  and  Practice. 

mony  in  a  court  of  law  may  be  witnesses  to  a  will.'^-  A  person 
who  is  unable  to  write  his  name,  but  makes  his  mark,  is  a  com- 
petent witness  to  the  execution  of  a  will  f^  but  a  person  who. 
from  inattention  or  abstraction,  is  unconscious  and  insensible 
of  what  is  being  said  and  done  when  publication  is  made,  does 
not  witness  the  will.'* 

Devisees  and  Legatees. 

If  any  person  hath  attested  the  execution  of  any  will  or 
codicil,  after  the  first  day  of  IVIarch,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  fifty-three,  or  shall  attest  the 
execution  of  any  will  or  codicil  hereafter  to  be  made,  to  whom 
any  beneficial  devise,  legacy,  estate,  interest,  gift  or  appoint- 
ment of  or  afifecting  any  real  or  personal  estate,  other  than  and 
except  charges  on  lands,  tenements  or  hereditaments,  for  the 
payment  of  any  debt  or  debts,  hath  been  or  shall  be  thereby 
given  or  made,  such  devise,  legacy,  estate,  interest,  gift  or 
appointment,  shall,  so  far  only  as  concerns  such  person  attest- 
ing the  execution  of  such  will  or  codicil,  or  any  person  claim- 
ing under  him  or  her,  be  utterly  null  and  void,  and  such  person 
shall  be  admitted  as  a  witness  to  the  execution  of  such  will, 
or  codicil,  notwithstanding  such  devise,  legacy,  estate,  interest, 
gift  or  appointment  mentioned  in  such  will  or  codicil.'"' 

It  is  to  be  observed  that  this  statute  does  not  affect  the  com- 
petency of  legatees  or  devisees  as  witnesses  to  a  will.  A  will 
witnessed  by  a  legatee  or  devisee  is  valid,  and  will  be  admitted 
to  probate,  the  only  effect  of  the  statute  being  to  deprive  the 
legatee  or  devisee  of  his  legacy  or  bequest ;  but  a  husband  may 
be  a  witness  to  a  will  under  which  his  wife  receives  a  devise. ^^ 

Executors. 

At  common  law  an  executor  who  was  not  a  residuary  legatee 
and  had  no  beneficial  interest  in  the  estate  might  be  a  witness 
to  the  execution  of  the  will,  being  considered  as  a  mere  trustee 

5240  CYC,  1 1 10  and  cases  cited.  ^^4    Comp.    Stat.,    5862,    sec.    4. 

s^Compton  v.  Mitton,   12  N.  J.  See   also.    Case   v.   Hasse,  93  Atl. 

L.,  70.  Rep.,  728. 

54Robbins  v.  Robbins,  50  N.  J.  s^Lippjncott  v.  Wikoff,  54  N.  J. 

Eq.,  742.  Eq..   107. 


Execution  of  Wills.  137 

and  nominal  party  having  no  real  interest  in  the  contest.  In 
Snedekers  r.  Allen:''  Mr.  Justice  Pennington  said  that  an  exec- 
utor may  be  a  witness  to  establish  a  will,  unless  he  takes  an 
interest  under  it.  and  that  the  practice  in  this  state  of  allowing 
a  reasonable  compensation  for  services  did  not  alter  the  case  ;^* 
and  the  appointment  of  the  husband  of  a  devisee  or  legatee  as 
executor  does  not  disqualify  him  from  being  a  witness. ^^ 

Creditors 

In  case  by  any  will  or  codicil,  made  or  to  be  made,  any  lands, 
tenements  or  hereditaments,  are  or  shall  be  charged  with  any 
debt  or  debts,  and  any  creditor  whose  debt  is  so  charged,  hath 
attested  or  shall  attest  the  execution  of  such  will  or  codicil, 
every  such  creditor,  notwithstanding  such  charge,  shall  be 
admitted  as  a  witness  to  the  execution  of  such  will  or  codicil."" 

KNOWLEDGE  OF  CONTENTS  OF  WILL. 

Presumption  and  Burden  of  Proof. 

When  a  will  is  signed  and  published  with  the  usual  solemni- 
ties and  in  the  usual  manner,  the  presumption  is  that  the  testa- 
tor knew  its  contents,''^  and  in  ordinary  cases,  where  the  testa- 
tor is  in  health  and  of  ability,  it  is  not  necessary  to  show  that 
the  will  was  read  over  to  him.  or  that  he  knew  the  contents 
thereof ;"-  but  it  will  not  be  presumed,  from  the  fact  that  testa- 
tor had  testamentary  capacity,  that  he  would  not  have  executed 
the  will  without  understanding  its  contents.'"'  The  burden  of 
proof  is  upon  him  who  denies  such  knowledge ;  but  where  it 
appears  affirmatively  that  the  testator  did  not  read  the  will 
himself,  and  that  it  was  not  read  to  him,  it  must  then  be  shown 
to  the  satisfaction  of  the  court  that  he  was  in  some  other  wav 


5^2  N.  J.  L.,  32-41.  Patton  V.  Hope.  2>7  N.  J.  Eq..  522. 

•'^See  also  Lippincott  v.  Wikoff,  "-Day  v.  Day,  3  N.  J.  Eq.,  549. 

54  N.  J.  Eq.,  107  Kahl  v.  Schober,  35  N.  J.  Eq..  461. 

s^Lippincott  V.  Wikofif,  54  N.  J.  Brick  v.  Brick,  44  N.  J.  Eq.,  282. 

Eq.,  107.  Barker   v.    Streuli,   69  N.   J.   Eq.. 

•'''*4  Comp.  Stat.,  5863,  sec.  5.  771. 

**'Day  V.  Day,  3  N.  J.  Eq.,  549.  ♦'^Harris   v.   Vanderveer,  21    N. 

Maxwell's  Case,  8  N.  J.  Eq.,  251.  J.  Eq.,  561. 


138  Probate  Law  and  Practice. 

made  acquainted  with  the  contents  of    the    instrument,  and 
approved  them."* 

If  a  will  is  shown  to  have  been  in  the  testator's  possession 
long  enough  for  him  to  read  it,  the  proponent  need  not  prove 
that  any  one  saw  him  read  it,  or  heard  it  read  to  him  in  his 
presence,  because,  if  he  had  the  intelligence  and  capacity  to 
read  it  himself,  the  law  will  presume,  if  an  opportunity  was 
afforded  him,  that  he  was  acquainted  with  its  contents.**^  So 
where  a  testatrix,  after  the  execution  of  a  will,  drawn  accord- 
ing to  instructions  given  to  one  who  conveyed  them  to  the 
draftsman,  has  the  executed  paper  in  her  possession  a  sufficient 
length  of  time  and  with  the  opportunity  and  ability  to  acquaint 
herself  with  its  contents,  and  she  then  preserves  it,  it  will 
be  conclusively  presumed  that  the  will  was  drawn  according 
to  her  instructions,  especially  when  it  follows  her  announced 
intentions,  and  provides  for  no  unnatural  disposition  of  her 
estate  ;"*'  and  so  the  fact  that  testatrix  executed  a  codicil  which 
in  express  terms  confirmed  the  will,  but  which  made  changes 
therein,  tends  to  prove  that  testatrix  was  acquainted  with  the 
will.«^ 

Where  Testator  is  Incapacitated. 

If  the  testator  be  incapable  of  reading  the  will,  whether  from 
blindness,  sickness,  illiteracy  or  any  other  cause,  it  must  be 
made  to  appear  that  the  will  was  read,  or  its  contents  fully 
made  known  to  him  and  that  he  gave  them  his  approval.''*  In 
the  case  of  Patton  v.  Hope'''-'  it  was,  however,  held  that  the 
mere  fact  that  testator  could  not  read  or  write  will  not,  in  the 
absence  of  any  evidence  to  induce  the  court  to  suspect  that  he 
may  have  been  imposed  upon,  render  it  necessary  for  the  pro- 

6*Day  V.  Day,  3  N.  J.  Eq.,  549,  ^'In  re  Cooper's  Will,  75  N.  J. 

and  see  "Where  Testator  is  Inca-  Eq.,  177.     Affirmed,  76  N.  J.  Eq., 

pacitated,"  this  page,  infra.  614. 

esBrick  v.  Brick,  44  N.  J.  Eq.,  e^Day  v.  Day,  3  N.  J.  Eq.,  549- 
282.  Catherine  McLaughlin's  Harris  v.  Vanderveer,  21  N.  J. 
Case,  69  N.  J.  Eq.,  479.  In  re  Eq.,  561.  Lyons  v.  Van  Riper,  26 
Cooper's  Will,  75  N.  J.  Eq.,  177.  N.  J.  Eq.,  22>7-  Hildreth  v.  Mar- 
Affirmed,  76  N.  J.  Eq.,  614.  shall,  51  N.  J.  Eq.,  241,  250. 
Barker  v.  Streuli,  69  N.  J.  Eq.,  771.  '^^2,7  N.  J.  Eq.,  522. 

^^^Catherine  McLaughlin's  Case, 
69  N.  J.  Eq.,  479- 


Execution  of  Wills.  139 

ponent  of  a  duly  executed  will  to  prove  that  testator  knew 
its  contents  when  he  executed  it :  the  execution  of  the  will 
according  to  law  raises  a  presumption  that  testator  understood 
its  contents. 

Where  the  testator  is  a  foreigner,  whose  knowledge  of  the 
language  in  which  the  will  is  written  is  shown  to  have  been 
imperfect,  it  is  always  necessary  to  show  that  he  was  made 
acquainted  with  its  contents  before  execution.  Obviously  the 
best  method  of  acquainting  a  foreign  born  testator  with  the 
contents  of  a  will  written  in  the  English  language  is  by  per- 
mitting him  to  read  a  properly  made  written  translation  in  his 
native  tongue.  If  this  is  not  practicable,  an  oral  translation, 
or  even  a  succinct  summary  of  its  material  provisions  in  his 
own  language,  made  to  him  by  some  one  in  whom  he  can  con- 
fide, may  suffice.  When  such  a  person  makes  a  will,  the  legal 
presumption  will  not  be  in  favor  of  the  instrument,  but  the 
person  who  propounds  it  for  probate  must  show  by  clear  and 
convincing  proof  that  the  testator  understood  its  character  and 
contents.'^** 

Method  of  Establishing  Knowledge  of  Contents. 

It  is  not  necessary  that  the  proof  of  the  testator's  knowledge 
of  the  contents  of  the  will  should  come  from  any  particular 
source  or  from  witnesses;  it  may  be  established  by  ordinary 
means  of  proof,  like  any  other  fact.'^  So  if  it  can  be  shown 
that  the  will  in  question  is  substantially  in  accordance  with  the 
instructions  of  testator,  it  may  be  considered  as  sufficient  evi- 
dence that  he  was  acquainted  with  its  contents ;'-  and  so  if  it 
can  be  established,  either  by  direct  proof  or  by  circumstances, 
that  the  will  in  question  was  truly  copied  from  a  previous  will, 
with  the  contents  of  which  the  testator  was  familiar,  the  instru- 
ment will  be  admitted  to  probate,  though  it  was  neither  read  by 
him  nor  in  his  hearing.'^  And  so  where  a  subscribing  witness, 
a  lawyer,  testified  that  he  drew  the  will  in  accordance  with 
testator's  instructions,  but  that  while  his  impression  was  strong 
that  he  read  it  over  to  the  testator,  he  was  not  absolutely  sure 

^"In    re    Gardella,    25    N.   J.    L.  "-'Day  v.  Day.  3  N.  J.  Kq.,  540. 

J..  139-  '"Day  v.  Day,  3  N.  J.  F.q.,  549. 

^' Lyons  v.  Van  Riper,  26  N.  J. 
Eq.,  337- 


140  Probate  Law  and  Practice. 

that  he  did  so,  it  was  held  sufficient  to  establish  a  prima  facie 
case  that  the  testator,  though  illiterate,  knew  the  contents  of 
the  will  before  he  executed  it.  It  would  be  rather  surprising 
if  a  lawyer  remembered  with  certainty  all  of  the  details  of  a 
transaction  of  this  character  some  years  after  its  occurrence. 
Few  lawyers  called  upon  to  testify  to  the  preparation  and  exe- 
cution of  a  will,  years  after  the  occurrence,  can  speak  regard- 
ing it  from  absolute  recollection ;  and  unless  it  appear  that 
some  motive  existed  to  induce  the  draftsman  to  withhold  the 
contents  of  the  document,  an  impression  based  upon  his  usual 
course  of  conduct,  that  he  read  it  to  the  testator  would  be  suffi- 
cient to  justify  the  presumption  that  it  was  done."* 

EVIDENCE. 
Attestation  Clause. 

An  attestation  clause  is  made  for  the  purpose  of  preserving 
in  permanent  form  a  record  of  the  facts  attending  the  execution 
of  the  will,  so  that  in  case  of  the  failure  of  the  men.ory  of  the 
subscribing  witnesses,  or  other  casualty,  they  may  still  be 
proved ;  and  the  courts  have  accordingly  held  that  on  proof  of 
the  authenticity  of  the  signatures  of  the  subscribing  witnesses, 
the  facts  stated  in  the  attestation  clause  must  be  accepted  as 
true  until  it  is  shown  by  affirmative  proof  that  they  are  not.''' 
The  statute,  however,  does  not  prescribe  any  form  in  which  the 
witnesses  shall  affirm  their  attestation.'*' 

By  a  perfect  attestation  clause  is  meant  one  that  asserts  the 
performance  of  all  tlie  acts  required  to  be  done  under  our 
statute  of  wills  to  make  a  valid  testamentary  disposition.'^^ 
Where  the  attestation  clause  states  the  performance  of  some  of 
the  requisite  acts,  but  omits  to  state  the  performance  of  other 

'•iBowe    V.    Naughton,    67    Atl.  312-325.     Affirmed,    39    N.    J.    L.. 

Rep.,  184.  113. 

"^Farley  v.  Farley,  50  N.  J.  Eq.,  '^''Stewart  v.   Stewart,   56  N.  J. 

434.    Lacey  v.  Dobbs,  63  N.  J.  Eq.,  Eq.,  761.     Affirmed,  57  N.  J.  Eq., 

325.     Bioren   v.   Nesler,   77  N.  J.  664.     Swain  v.  Edmunds,  53  N.  J. 

Eq.,  560.    Bloom  v.  Terwilliger,  78  Eq.,   142.     Affirmed,  54  N.  J.  Eq., 

N.  J.  Eq.,  221.    In  re  Gahagan,  82  438.     Beggans'  Case,  68  N.  J.  Eq., 

N.  J.  Eq.,  601.  572. 

76 Allaire  v.  Allaire,  37  N.  J.  L., 


Execution  of  Wills.  141 

acts  also  requisite  on  reason  and  authority,  the  proponent  must 
estabhsh  by  evidence  the  performance  of  the  latter  acts.^* 

On  proof  of  the  authenticity  of  the  signatures  of  the  sub- 
scribing witnesses,  the  facts  stated  in  the  attestation  clause 
must  be  accepted  as  true  until  it  is  shown  by  affirmative  proof 
that  they  are  not ;  the  burden  of  proof  is  thrown  upon  the  con- 
testant to  negative  its  averments.'''  So  where  it  is  doubtful  on 
the  evidence  whether  the  will  was  signed  in  the  testator's  pres- 
ence, the  presumption  arising  from  the  statement  of  the  attesta- 
tion clause  is  not  overcome.^"  So  if  the  attestation  clause  is 
perfect,  and  shows  on  its  face  that  all  the  requisites  demanded 
by  the  statute  have  been  complied  with,  and  the  subscribing 
witnesses  when  called  admit  their  signatures,  but  through 
defect  of  memory,  or  other  cause  fail  to  testify  to  the  due  exe- 
cution of  the  will,  it  may  be  established  by  the  presumption 
arising  from  the  attesting  clause,  unless  there  be  affirmative 
evidence  given  to  disprove  its  statements,*^  and  so  where  it 
appears  from  the  attestation  clause  that  the  will  offered  for 
probate  was  signed  and  declared  by  the  testator  to  be  his  last 
will  in  the  presence  of  the  subscribing  witnesses,  the  statutory 
requirement  that  both  witnesses  should  be  present  at  the  same 
time  is  shown  to  be  complied  with.*^ 


'■^Ayres  v.  Ayres,  43  N.  J.  Eq.,  Affirmed.   54   N.  J.   Eq.,   438.     In 

569.    Beggans'  Case,  68  N.  J.  Eq.,  re  Sandmann's  Will,  68  Atl.  Rep., 

572.     Bioren  v.   Nesler,   "j^  N.  J.  754.     Berdan's  Case.  65  N.  J.  Eq., 

Eq.,  573.     Affirrned.  ^^  N.  J.  Eq.  68r.       In    re    Gahagan,    82    N.    J. 

560.     Bo  we  V.   Naughton.  67  Atl.  Eq.,  601. 

Rep.,    184.     Allaire  v.   Allaire,  yj  ^'^Tappen  v.  Davidson,  2"]  N.  J. 

N.  J.  L.,  312.     Affirmed,  39  N.  J.  Eq.,  459.     McCurdy  v.   Neall,  42 

L.,  113.  N.  J.  Eq.,  333- 

""Manners'  Case,  72  N.  J.  Eq.,  ^lAHaire  v.  Allaire,  zi  N.  J.  L., 

854.     Allaire  v.  Allaire,  37  N.  J.  312.     Affirmed,   39   N.  J.   L.,    113. 

L.,   312.     Affirmed,    39    N.   J.    L.,  Mundy  v.   Alundy,    15   N.  J.   Eq., 

113.     Mundy  v.  Mundy,   15  N.  J.  290.     In  re  Alpaugh,  23  N.  J.  Eq., 

Eq.,  290.    Tappen  v.  Davidson,  27  507.     McCurdy  v.  Neall,  42  N.  J. 

N.  J.  Eq.,  459-     Patton  v.  Hope,  Eq.,  zzz. 

37    N.   J.    Eq.,    522.     Elkinton    v.  82Allaire  v.  Allaire,  37  N.  J.  L., 

Brick,  44  N.  J.  Eq.,   154.     Farley  312-327.     Affirmed.    39    N.    J.    L., 

V.  Farley,  50  N.  J.  Eq.,  434.  Swain  113.     In  re  Kirkpatrick,  22  N.  J. 

V.   Edmunds,    53    N.   J.    Eq.,    142.  Eq.,  463. 


142  Probate  Law  and  Practice. 

Where  Subscribing  Witnesses  Are  Dead  or  Absent  from 
the  Jurisdiction. 

If  a  will  contains  a  perfect  attestation  clause,  and  if  by  rea- 
son of  the  death  of  the  attesting  witnesses,  or  their  absence 
beyond  the  reach  of  process,  or  for  any  other  cause,  a  founda- 
tion be  laid  for  the  introduction  of  secondary  evidence,  proof 
of  their  signatures  will  be  evidence  that  what  they  attested  did 
in  fact  take  place.^^ 

Presumption  May  Be  Rebutted. 

It  is  settled  that  the  presumption  arising  from  an  attestation 
clause  may  be  overcome  by  the  evidence  of  the  two  witnesses 
who  subscribed  it,  by  that  of  other  witnesses  attacking  its  accu- 
racy, or  by  facts  and  circumstances  irreconcilable  with  its 
verity.  It  will  not  be  overcome,  however,  by  mere  forgetful- 
ness  of  the  witnesses,  or  either  of  them.  If  the  attestation 
clause  is  perfect,  and  one  of  the  attesting  witnesses  corrobo- 
rates its  accuracy,  the  testimony  of  the  other  attesting  witness 
suggesting  doubt,  or  his  want  of  recollection,  will  not  justify 
denial  of  probate.®*  So  where  a  will  contained  a  perfect 
attestation  clause  and  one  of  the  witnesses,  who  was  the  attor- 
ney who  drew  the  will,  testified  to  its  execution  with  all  the 
required  formalities,  the  court  properly  admitted  the  will  to 
probate,  though  the  other  subscribing  witness  was  not  clear 
that  the  instrument  was  executed  in  accordance  with  such  for- 
malities.®^ *But  where  the  attestation  clause  of  a  will  states 
that  the  testator  declared  it  to  be  his  will  in  the  presence  of  the 
witnesses,  the  presumption  arising  from  the  attestation  clause 
does  not  overcome  the  testimony  of  the  witnesses  that  the  tes- 
tator did  not  declare  the  instrument  to  be  his  will.®**  And  so 
where  both  of  the  subscribing  witnesses,  when  called,  while 

83Allaire  v.  Allaire,  37  N.  J.  L.,  72  N.  J.  Eq.,  854.    Mundy  v.  Mun- 

312-325.     Affirmed,    39    N.   J.    L.,  dy,  15  N.  J.  Eq.,  290.     Bioren  v. 

113.  Nesler,  T7  N.  J.  Eq.,  560. 

84McCurdy   v.    Neall,   42   N.   J.  ^'^In  re  Sandmann's  Will.  68  Atl. 

Eq.,  333.    Berdan's  Case,  65  N.  J.  Rep..  754. 

Eq..  681.     Bogert  v.  Bateman,  65  ^^In    re    Clark's    Will.    52    Atl. 

Atl.    Rep.,    238.     Gunn    v.    Early,  Rep..  222.    Affirmed,  64  N.  J.  Eq.. 

71  N.  J.  Eq..  717.    Manner's  Case,  361. 


Execution  of  Wills.  143 

admitting  the  genuineness  of  their  signatures  testified  that  the 
paper  was  not  signed  by  testator,  nor  the  signature  thereto 
acknowledged  by  him  in  their  presence,  and  that  their  signa- 
tures were  not  made  at  the  same  time,  nor  in  the  presence  of 
each  other,  although  the  evidence  of  one  witness  was  open  to 
serious  doubt  as  to  his  recollection  of  the  transaction,  the  evi- 
dence of  the  witness  being  found  credible  and  to  establish  that 
he  did  not  see  the  attestation  clause  or  know  its  contents,  and 
that  the  statements  therein  certified  were  not  in  fact  true,  it  was 
held  that  the  presumption  arising  from  the  attestation  clause 
was  overcome,  and  that  probate  should  be  denied.^" 

Burden  of  Proof. 

In  the  absence  of  an  attestation  clause,  the  burden  is  on  the 
proponent  to  aftirmatively  prove*  compliance  with  all  the  statu- 
tory requirements.^^  So  where  the  testamentary  witnesses  to 
a  will  were  at  variance  as  to  the  time  when  they  subscribed 
their  names  and  as  to  whether  they  had  done  so  before  or  after 
the  deceased  had  executed  the  paper,  and  the  testimony  of  the 
witness  who  asserted  that  the  signatures  of  the  witnesses  were 
made  before  the  deceased  executed  the  paper  was  corroborated 
by  a  witness  present  at  the  time,  it  was  held  that  a  conclusion 
against  the  validity  of  the  execution  was  justified.^^** 

Proof  of  Execution. 

If  one  witness  testify  expressly  to  the  fulfillment  of  every 
ceremony  required  by  the  statute,  it  will  be  sufficient.^" 

Testimony  of  Subscribing  Witness. 

The  testimony  of  the  subscribing  witnesses  to  a  will  that  it 
was  duly  executed  in  their  presence  cannot  be  overcome,  unless 
impeached,  nor  should  it  be  disregarded  upon  proof  simply  of 

*^Berdan's   Case,  65   X.  J.   Eq.,  J.  Eq.,  572.    In  re  Van  Handlyn's 

681.  Will,  83  N.  J.  Eq.,  290. 

ssMundy  v.  Mundy  15  X.  J.  Eq.,  8«Beggans'   Case,  68  N.  J.  Eq., 

290.     Stewart  v.  Stewart,  56  N.  J.  572. 

Eq.,  761.     Affirmed,  57  N.  J.  Eq.,  ""Mickle  v.  Matlack,  17  N.  J.  L.. 

664.     Vernon  v.  Vernon,  69  N.  J.  86.     Compton  v.  Mitton,  12  N.  J. 

^-q-.  759-     Bioren  v.  Nesler,  "]•]  N.  L.,  70.     Whitenack  v.   Stryker,  2 

J.  Eq.,  560.     Beggans'  Case,  68  N.  N.  J.  Eq.,  8. 
1 1 


144  Probate  Law  and  Practice. 

the  improbability  of  their  statements. ^^  So  where  three  sub- 
scribing witnesses  testified  to  the  genuineness  of  testator's  sig- 
nature, and  the  only  evidence  offered  in  opposition  to  the  will 
was  that  of  one  expert  and  two  non-expert  witnesses,  who  gave 
opinions,  from  comparison  of  handwritings,  disproving  the 
genuineness  of  the  signature,  the  will  was  admitted  to  pro- 
bate.^- When  on  appeal  the  record  of  a  will,  together  with  the 
depositions  of  the  attesting  witnesses  made  at  the  time  of  pro- 
bate, is  offered  in  evidence,  it  is  competent  for  the  opposing 
party  to  show  statements  made  out  of  court  by  one  of  the  sub- 
scribing witnesses  who  had  made  such  deposition,  in  order  to 
contradict  the  statements  thereof  as  to  the  due  execution  of  the 
will.  Such  evidence  standing  alone  will  not,  however,  invali- 
date the  instrument. ^'^ 

Declarations  of  Deceased  Subscribing  Witnesses. 

On  a  charge  of  fraud  or  forgery,  the  declarations  and  bad 
character  of  a  deceased  subscribing  witness  are  admissible  in 
evidence  to  impugn  the  presumption  arising  from  his  attesta- 
tion and  signature ;  but  standing  alone  and  unsupported,  they 
are  not  sufficient  to  overcome  such  presumption.^*  ^ 

Testimony  of  Others  Than  Subscribing  Witnesses. 

The  subscribing  witnesses  must  be  produced,  if  procurable, 
and  great  weight  is  given  their  testimony ;  but  the  probate  of 
the  will  is  not  dependent  upon  their  recollection  or  veracity,  and 
other  testimony  may  be  adduced  to  controvert  or  sustain  their 
testimony.^^  So  a  will  signed  by  the  testator  and  a  sufficient 
number  of  witnesses  may  be  established  by  testimony  aliunde 
that  the  formalities  prescribed  by  the  statute  have  been 
observed.^'' 

o^Boylan  ads.  Meeker,  28  N.  J.  ssSchouler  on  Wills,    (3d.  ed.), 

L.,  274.  sec.    348.       Underbill     on     Wills, 

^-Conway  v.  Ewald,  42  Atl.  Rep.,  sec.  211.    Paige  on  Wills,  sec.  366. 

338.  9fi Allaire  v.  Allaire,  37  N.  J.  L., 

^^Otterson  v.  Hofford,  36  N.  J.  312-325.     Affirmed,    39    N.    J.    L., 

L.,  129.  113.     Compton  V.  Mitten,  12  N.  J. 

s^Boylan  ads.  Meeker,  28  N.  J.  L.,  70-75. 
L..  274. 


CHAPTER  IX. 

APPOINTMENT  OF  EXECUTORS. 

In  General. 

The  nomination  of  an  executor  in  a  will  may  be  either 
express  or  constructive ;  in  the  latter  case  he  is  usually  called 
executor  according  to  the  tenor. ^  Any  words  conferring  upon 
a  person,  expressly  or  by  implication,  substantially  the  rights 
and  powers  of  an  executor,  amount  to  an  appointment.  It  is 
sufficient  if  any  language  is  used  from  which  the  intention  of 
the  testator  to  invest  such  person  with  the  character  of  execu- 
tor may  be  inferred. - 

Where  a  will  confers  upon  a  person  the  powers  and  imposes 
the  duties  of  an  executor,  such  person  is  executor  according  to 
the  tenor,  although  not  named  as  such,  or  though  he  be  named 
as  trustee.^  So  a  direction  to  an  individual  to  receive  the  prop- 
erty, to  pay  debts,  and  to  divide  the  residue  constitutes  him  an 
executor  according  to  the  tenor  of  the  will.*  So  where  a  tes- 
tator's will  directed  his  brother,  after  his  debts  were  paid,  to 
invest  his  property  in  some  safe  bank  and  to  pay  the  interest 
thereon  to  his  father,  and  further  provided  for  the  disposition 
of  the  same  after  his  father's  death,  it  was  held  that  the  brother 
was  an  executor  according  to  the  tenor  f  and  so  where  the  will, 
which  was  in  the  form  of  a  letter,  gave  directions  as  to  the  dis- 
position of  testator's  property,  and  concluded :  "I  know  of 
nothing  else,  my  dear  Eliza,  to  troul)Ie  you  with,  and  trust  that 
this  will  not  involve  you  in  much,"  letters  testamentary  were 

^i  Williams  on   Executors,    189.  ■'In    re   Goods   of    vSaunders.    11 

^Woerner     on     Administration,  Jur.  N.  S.,  1027.     In  re  Goods  of 

503.     Carpenter     v.     Cameron,     7  Cooper,  8  Jur.,  N.  S.,  394-     Grant 

Watts,  51-58.     Wolff e  v.  Loeb,  g8  v.  Spann,  34  Miss.,  294.    Ex  Parte 

Ala.,  426.     13  So.  Rep.  744.     Bay-  AfcDonnell,     2     Bradf.,     (N.     Y. 

eaux  V.  Bayeaux,  8  Paige  (N.  Y.),  Sur.),  32.     Ex  Parte  McConnick, 

333-336.  2  Bradf.,   (N.  Y.  Sur.),  169. 

^Lavaggi    V.    Borella,    7i    N.    J.  ^Ex  Parte  McDonnell  2  Bradf., 

Eq.,  419.  (N.  Y.  Sur.),  32. 


146  Probate  Law  and  Practice. 

issued  to  the  person  to  whom  the  letter  was  addressed." 

A  direction  to  a  person  to  pay  debts  or  funeral  expenses,  not 
out  of  the  general  estate,  but  from  a  particular  fund,  will  not, 
however,  constitute  him  an  executor/  So  a  mere  direction  to 
a  legatee  to  pay  the  funeral  expenses  out  of  his  legacy  will  not 
make  him  an  executor  f  and  the  mere  fact  that  testator  makes 
an  infant  his  executor,  and  appoints  a  guardian  for  the  infant, 
does  not  constitute  the  guardian  an  executor.^  And  where  a 
will  provided  that  the  executors  and  witnesses  should  receive 
one  sovereign  for  their  trouble  in  seeing  that  everything  was 
justly  divided,  and  the  will  did  not  name  any  executor,  but 
beneath  the  signature  of  the  testatrix,  and  opposite  the  names 
of  the  subscribing  witnesses,  were  the  words,  "executors  and 
witnesses,"  it  was  held  that  there  was  no  appointment  of 
executors. ^^ 

If  a  testator  bequeaths  all  of  his  goods  to  certain  persons, 
whom  he  names,  in  trust  for  certain  objects,  constituting  them 
trustees  and  conferring  upon  them  the  rights  belonging  to 
executors,  but  does  not  name  any  executor,  the  trustees  will  be 
held  to  be  executors  according  to  the  tenor  of  the  will.^^ 

The  appointment  of  executors  by  construction  or  implication 
is  not  favored.  In  doubtful  cases,  administration  with  the  will 
annexed  must  be  resorted  to.^" 

Appointment  By  Implication. 

An  executor  may  be  appointed  by  implication,  as  where  a 
testator  says:  "I  will  that  A  be  my  executor,  if  B  will 
not ;"  in  this  case  B  may  be  admitted  to  the  executorship.^^ 
So  where  a  testator,  without  nominating  his  wife  as  executrix, 
appointed  J.  C.  H.  sole  executor  in  the  event  of  the  death  of 

^In  re  Goods  of  Manley,  31  L.  ^^In  re  Goods  of  Baylis.  i  L.  R. 

J.  P.,  198,  8  Jur.  N.  S.,  493-  P-  21;     11  Jur.  N.   S.,    1028.     In 

'''In  re  Goods  of  Toomy,  3  S.  &  re  Goods  of  Chappell.  37  L.  J.  P.. 

T..  562.  32.    In  re  Goods  of  Gale,  18  L.  T. 

^In  re  Goods  of  Smith,  10  Jur.  N.  S.  696.     Myers  v.  Daviess,  49 

N.  S.,  1084.  Ky..  394.     Richards   v.   Moore,   5 

9In  re  Goods  of  Stewart,  L.  R.,  Redf..    (N.    Y.    Sur.),   278. 

3  P.  &  D.,  244.  i^Hartnett  v.  Wandell,  2  Hun. 

lojn  re  Goods  of  Woods,  i  L.  R.  (N.  Y.),  552. 

P.,  556.  i'"i  Williams  on  Executors,  192. 


Appointment  of  Executors.  147 

his  wife  during  the  minority  of  his  children,  tlie  wife  was  held 
to  be  appointed  by  implication.^*  But  where  a  testatrix,  after 
naming  executors,  provided  that  if  they  should  both  die  "prior 
to  my  decease,"  or  in  case  they  should  both  decline  to  act,  then 
L.  D.  should  be  executor,  and  neither  of  them  died  until  after 
testator's  death,  and  one  of  them  acted  as  executor  and  died, 
it  was  held  that  L.  D.  was  not  appointed  executor  by  implica- 
tion, as  in  order  to  have  him  succeed  to  the  administration  of 
the  estate,  it  would  be  necessary  to  reject  the  words,  "prior  to 
my  decease."  ^^ 

Delegation  of  Power  of  Appointment. 

A  testator  may  delegate  to  a  person  named  in  the  will  the 
power  of  naming  an  executor.^''  So  where  the  language  of  the 
will  was,  "I  must  beg  A  to  appoint  some  one  to  see  this  my  will 
executed,"  it  was  held  that  A  might  appoint  himself.^'  But 
where  the  will  made  C  executor  and  trustee  with  power  to 
appoint,  by  deed  or  will,  other  persons  as  co-trustees  or  suc- 
ceeding trustees,  and  C  died  without  taking  probate,  but  by  will 
appointed  E  to  be  succeeding  trustee  in  respect  to  the  original 
testator's  estate,  it  w^as  held  that  in  the  language  of  the  will  the 
distinction  between  "trustees"  and  "executors"  was  so  marked 
that  E  was  not  by  C's  will  constituted  executor  of  the  will  of 
the  first  testator. ^^ 

Where  a  will  in  appointing  executors  provided,  "I  authorize, 
empower  and  request  my  said  executors"  to  appoint  others  to 
act  with  them  in  case  the  number  of  executors  should  fall 
below  a  certain  number,  it  was  held  that  a  duty  was  imposed 
upon  the  executors  to  make  such  appointment,  and  that  upon 
their  failure  to  do  so  the  court  would  compel  the  appointment.' '' 
So  a  will  making  the  executors  trustees,  and  in  case  of  the 
death  of  one  authorizing  the  survivors  to  appoint  his  successor, 

i^Bayeaux  v.  Bayeaux,  8  Paige  Curtis,  51  N.  E.  Rep.,  913.  (Ind.) 

(N.  Y.),  32i3-  Bishop  v.  Bishop,  56  Conn.,  208. 

^^Fosdick  V.   Delafield,  2   Redf.  ^^In  re  Goods  of  Ryder,  2  Sw. 

(N.   Y.    Sur.),   392.  &  Tr.,  127. 

i«Hartnett  v.  Wandcll,  60  N.  Y.  i^Moss   v.   Bardswell,  3   Sw.  & 

346.     In   re  Alexander's   Will,    16  Tr.,    187. 

Abb.  Prac.  (N.  Y.),  9.    Wilson  v.  i^Hutton    v.    Hutton,    41    N.   J. 

Eq.,  267. 


148  Probate  Law  and  Practice. 

imposes  upon  such  appointee  not  only  the  duties  of  executor, 
but  clothes  him  with  the  trust  estate.-"  But  a  provision  in  a 
will  naming  one  as  attorney  of  the  estate,  and  directing  the 
executrix  to  consult  and  employ  him  in  all  matters  pertaining 
thereto,  gives  no  power  to  the  attorney  to  act  as  executor.-^ 

Conditional  Appointment. 

A  testator  may  in  his  will  nominate  a  person  as  executor  and 
provide  that  such  appointment  shall  take  effect  upon  the  hap- 
pening of  a  certain  event.  Thus,  where  a  testator's  will 
appointed  his  son  one  of  the  executors,  provided  that  he  had 
arrived  at  the  age  of  twenty-one  years  at  testator's  death,  and 
testator  died  before  his  son  reached  the  age  of  twenty-one 
years,  the  appointment  of  the  son  as  executor  was  held  not  to 
take  effect ;--  and  where  a  testator  by  his  will  appointed  his 
son,  residing  in  Australia,  executor,  "if  and  when  he  shall 
return  to  England."  it  was  held  that  the  return  of  the  son  to 
England  eight  years  after  testator's  death  was  a  return  within 
the  meaning  of  the  will,  though  he  only  came  to  England  for 
the  benefit  of  his  health  and  returned  to  Australia  six  months 
later.'^ 

soMulford  V.  Mulford,  42  N.  J.  22Knox    v.    Newman,    44   N.   J. 

Eq.,   68.  Eq.,   309. 

2iln  re  Ogier's  Estate,  loi  Cal..  -Hn  re  Arbib  (1891),  i  Ch.,  601. 
381,  35  Pac.  Rep.,  900. 


CHAPTER  X. 

FRAUD  AND  UNDUE  INFLUENCE. 

General  Principles. 

In  adjudicating  upon  the  admission  of  wills  to  probate,  it  is 
the  manifest  duty  of  the  court  to  uphold  the  right  of  free  tes- 
tamentary disposition  of  property  and  not  to  attempt  to  annul 
or  control  it  by  considerations  wholly  at  variance  with  that 
right.  It  is  its  duty  to  sustain  the  instrument  and  admit  it  to 
probate,  if  it  finds  that  it  is  the  duly  executed  last  will  and 
testament  of  the  testator.  If  he  is  proved  to  have  been 
possessed  of  testamentary  capacity  at  the  time  of  making  the 
will,  and  the  will  does  not  appear  to  have  been  the  result  of 
any  fraud,  and  it  is  proved  to  have  been  duly  executed,  the 
court  has  no  right  to  reject  it.^ 

What  Constitutes  Undue  Influence. 

Undue  influence  has  been  defined  to  be  such  influence  as 
dominates  the  will  of  the  testator  and  produces  a  testamentary 
disposition  which  he  would  not  have  made  if  not  coerced  by 
such  influence.-  The  influence  which  the  law  denominates  as 
undue  must  be  such  as  to  destroy  the  free  agency  of  the  testa- 
tor and  amount  to  moral  or  physical  coercion.  It  must  be 
proved,  moreover,  that  the  act  done  was  the  result  of  such  co- 
ercion. There  must  be  a  control  exercised  over  the  mind  of 
the  testator,  or  an  importunity  practiced  which  he  could  not 
resist,  or  to  which  he  yielded  for  the  sake  of  peace  f  and  so 

^Turner  v.  Cheesman,   15  N.  J.  N.  J.  Eq.,  367.     Haydock  v.  Hay- 

Eq.,  243.     Dietz's   Case,  41    N.  J.  dock,  33  N.  J.  Eq.,  494.    Affirmed 

Eq.,  284,  296.     Affirmed,  42  N.  J.  34  N.  J.  Eq.,  570.     Earle  v.  Nor- 

Eq.,  689.     Dumont  v.  Dumont,  46  folk,  36  N.  J.  Eq.,  188.    Affirmed, 

N.  J.  Eq.,  223.    Sanderson  v.  San-  37    N.    J.    Eq.,   315.     Elkinton    v. 

derson,  52  N.  J.  Eq.,  243-254.  Brick,  44  N.  J.  Eq.,  154.     Fritz  v. 

^Byrnes  v.  Gibson.  6S  Atl.  Rep.,  Turner,  46  N.  J.  Eq.,  515-517.    Re- 

756.  versed,  49  N.  J.  Eq.,  343.    Clifton 

^Lynch    V.    Clements,    24    N.    J.  v.  Clifton,  47  N.  J.  Eq.,  227.  White 

Eq.,  431.     Moore   v.   Blauvelt,    15  v.  Starr,  47  N.  J.  Eq.,  244.     Ben- 

149 


150  Pkobate  Law  and  Practice. 

false  representations  made  to  a  testator  by  a  beneficiary,  which 
merely  induce  the  testator  to  the  immediate  execution  of  a  pre- 
viously contemplated  action,  do  not  amount  to  undue  influ- 
ence ;*  but  the  fact  that  a  testator  had  been  induced  to  make  a 
new  will  by  false  representations  as  to  the  contents  of  an  exist- 
ing will  is  a  proper  element  in  the  consideration  of  the  question 
of  undue  influence,  though  the  new  will  may  not  materially 
vary  from  the  former  one  in  respect  to  the  subject-matter  of 
the  false  representations.^ 

The  undue  influence  which  vitiates  a  will  must  be  an  influ- 
ence whereby  some  one  is  materially  injured  ;  so  where  testator 
divided  his  property  equally  among  his  children,  or  approxi- 
mately so,  there  can  be  no  complaint  of  undue  influence  f  but 
a  person  cannot  be  unduly  influenced  to  do  that  which  it  is  his 
legal  duty  to  do,  and  so  where  a  testator  had  made  his  will 
devising  a  certain  property  which  was  subject  to  a  mortgage 
which  stood  as  collateral  to  the  testator's  own  bond,  and  it  was 
sought  to  show  that  the  devisee  unduly  influenced  the  testator 
to  pay  such  mortgage  debt,  thereby  increasing  the  value  of  the 
property  devised  to  him,  it  was  held  that  even  though  it  be 
proven  that  the  devisee  did  in  fact  by  importunity,  or  threats, 
constrain  the  testator  against  his  will  to  pay  the  mortgage,  this 
would  not  affect  the  validity  of  the  will,  as  in  paying  the  mort- 
gage the  testator  simply  did  what  it  was  his  legal  duty  to  do.'^ 
Extent  of  Influence. 

The  extent  of  the  influence,  whether  powerful  or  slight,  is 
wholly  immaterial,  the  test  being  whether  it  was  sufficient  to 
render  the  will  invalid.^ 

nett  V.  Bennett,  50  N.  J.  Eq.,  439.  ^j^joore  v.  Blauvelt,  15  N.  J.  Eq., 

Westcott  V.  Sheppard,  51  N.  J.  Eq.,  367. 

315.    Schuchhardt  v.  Schuchhardt,  •'In  re  Tunison's  Will,  83  N.  J. 

62   N.   J.   Eq.,   710.     Ramsdell   v.  Eq..  277. 

Streeter,  62  N.  J.  Eq.,  718.     Car-  "Bennett   v.    Bennett,    50   N.   J. 

rol  V.  Hause,  48   N.  J.  Eq.,  269.  Eq.,  439. 

Gilham's  Case,  64  N.  J.  Eq.,  715.  ^Turner  v.  Cheesman,   15  N.  J. 

Buckman's    Case,    80    N.    J.    Eq.,  Eq.,  243.     Lynch  v.  Clements,  24 

556.     In  re  Tunison's  Will,  83  N.  N.  J.  Eq.,  431.     Haydock  v.  Hay- 

J.  Eq.,  277.     In  re  Brengel's  Will,  dock,  33  N.  J.  Eq.,  494.    Affirmed, 

95  Atl.  Rep.,  750.  34  N.  J.  Eq.,  570.     Earle  v.  Nor- 

^Stewart  v.  Jordan,  50  N.  J.  Eq.,  folk,  36  N.  J.  Eq.,   188-192.     Af- 

733-  firmed,  37  N.  J.  Eq.,  315.     Carroll 

V.  Hause,  48  N,  J.  Eq.,  269. 


Fraud  and  Undue  Influence.  151 

Condition  of  Mind  and  State  of  Testator's  Health. 

The  question  whether  an  act  is  the  product  of  undue  influ- 
ence or  not  must  always  be  largely  controlled  by  the  condition 
of  mind  and  state  of  health  of  the  person  alleged  to  have  been 
unduly  influenced. **  That  degree  of  influence  which  deprives 
a  testator  of  his  free  agency,  which  he  is  too  weak  to  resist, 
and  which  renders  the  instrument  not  his  free  and  unrestrained 
act,  will  be  sufficient  to  invalidate  it,  not  only  in  relation  to  the 
person  by  whom  it  is  procured,  but  as  to  all  others  who  are 
intended  to  be  benefited  by  the  undue  influence.^" 

Indicia  of  Undue  Influence. 

What  influence  amounts  to  undue  influence,  in  the  legal 
sense,  cannot  be  defined  or  described  with  exactness,  but  only 
HI  general  and  approximate  terms.  Each  case  must  be  decided 
by  the  judicious  application  of  general  principles  to  the  special 
facts  and  circumstances  of  the  case.^^  It  is  only  in  exceptional 
cases  that  direct  proof  of  undue  influence  can  be  had.  The 
proof  of  it  is  generally  by  presumptions  arising  from  circum- 
stances which  produce  conviction.  There  are  well  recognized 
indicia  of  vmdue  influence,  which,  the  courts  hold,  raise  a  pre- 
sumption, or  justify  an  inference  against  the  instrument,  un- 
less the  proponent  can  show  that  the  will  was  the  testator's  free 
act ;  such  as  the  fact  that  the  testator  was  enfeebled  in  mind  ; 
within  the  control  of  the  principal  beneficiary,  who  was  the 
draftsman  of  the  will  and  present  at  its  execution ;  that  nat- 
ural objects  of  the  testator's  bounty  were  excluded  from  the 
testator's  society  by  the  beneficiary  when  the  will  was  made ; 
clandestinity  and  the  like  ;^-  but  whether  in  any  given  case  there 
was  undue  influence  exerted  upon  the  testator  must  be  deter- 
mined from  the  facts.     It  is  not  a  presumption,  but  a  conclu- 


sRaydock  v.  Haydock,  33  N.  J.  Eq.,  431.     Waddington  v.  Buzby, 
Eq.,  494-     Affirmed,  34  N.  J.  Eq.,      45  N.  J.  Eq.,  I73- 
570.  izw^hite  V.  Starr,  47  N.  J.  Eq., 

lOLynch   v.   Clements,  24   N.  J.      244-261.     In  re  Barber's  Will,  49 
Eq.,  431.  Atl.  Rep.,  826.     Sickles'  Case,  63 

iiLynch   v.   Clements,  24  N.  J.      N.  J.  Eq.,  233.    Affirmed,  64  N.  J. 

Eq.,  791. 


152  Probate  Law  and  Practice. 

sion.^^  So  the  existence  of  influence  which  arises  from  un- 
lawful or  immoral  relations,  operating  on  a  testator  when  a  will 
is  made,  does  not  raise  a  presumption  against  the  instrument, 
but  will  be  regarded  as  a  significant  fact  which  calls  for  close 
and  suspicious  scrutiny/* 

Suspicious  Circumstances. 

Suspicious  circumstances,  susceptible  of  an  interpretation 
which  favors  honesty,  are  insufficient  to  establish  undue  influ- 
ence in  the  making  of  an  officious  will  ;^^  and  the  mere  posses- 
sion of  influence,  together  with  the  opportunity  and  motive  to 
assert  it,  is  not  sufficient  to  establish  undue  influence.^**  Where, 
however,  proof  of  the  opportunity  to  exert  influence  is  supple- 
mented by  proof  of  the  existence  of  relations  of  a  confidential 
character,  justifying  the  inference  that  testator  relied  upon  the 
advice  and  assistance  of  the  beneficiary  in  business  matters,  or 
by  proof  that  the  beneficiary  exercised  an  actual  control  over 
the  testator,  as  by  excluding  from  communication  with  him 
others  who  would  naturally  be  objects  of  his  testamentary 
bounty,  the  burden  of  proof  shifts,  and  explanation  or  denial  is 
required." 

Fraud. 

While  undue  influence  embraces  fraud,  fraud  by  no  means 
embraces  every  species  of  undue  influence,  since  it  is  quite  sup- 
posable  that  one  may  readily  exercise  a  degree  of  influence 

i^Moore    v.   Blauvelt,    15    N.   J.  Eq.,  515.     Reversed,  49  N.  J.  Eq.. 

Eq.,    367.      In    re    Humphrey,    26  343.     Howell  v.  Taylor,  50  N.  J. 

N.  J.  Eq.,  513.    Affirmed,  27  N.  J.  Eq.,   428.     Sanderson   v.    Sander- 

Eq.,  567.  son,  52  N.  J.  Eq.,  243. 

i*Arnault  v.  Arnault,  52  N.  J.  ^'^Byrnes  v.  Gibson,  68  Atl.  Rep., 

Eq.,    801.      Middleton's    Case,    68  756.       Schuchhardt     v.      Schuch- 

N.    J.    Eq.,    584.      Affirmed,    ib.,  hardt,   62   N.   J.   Eq.,   710.     In   re 

798.      In    re    Willford's    Will,    51  Carter's   Will,  60  N.  J.  Eq.,  338. 

Atl.  Rep.,  501,  and  see  "Burden  of  In  re  Willford's  Will,  51  Atl.  Rep., 

Proof,"  p.  161,  infra.  501.    In  re  Eatley's  Will.  82  N.  J. 

i^In  re  John  Gleespin,  26  N.  J.  Eq.,   591.     In   re   Tunison's   Will, 

Eq.,  523.    Kise  v.  Heath,  33  N.  J.  83  N.  J.  Eq.,  277. 

Eq.,  239.    Brick  v.  Brick,  43  N.  J.  ^'^Zelozoskei  v.  Mason,  64  N.  J. 

Eq.,  167.     Affirmed,  44  N.  J.  Eq.,  Eq.,    327,    and    see    "Burden    of 

282.     Fritz    V.    Turner,   46    N.   J.  Proof,"  p.  161.  infra. 


Fraud  and  Undue  Influence.  153 

over  the  testator  in  producing  the  testamentary  act,  which  upon 
every  just  ground  is  fairly  entitled  to  be  considered  extreme 
and  unreasonable,  either  in  character  or  degree,  without  its 
being  really  fraudulent. ^^ 

A  will  which  is  the  product  of  fraud,  or  fraudulent  conduct, 
will  be  denied  probate.  So  if  a  woman  at  or  before  a  marriage 
ceremony  represents  herself  as  competent  to  marry,  or  conceals 
the  fact  that  she  is  not  so  qualified,  and  her  supposed  hus- 
band consequently  makes  a  will  in  her  favor,  believing  her  to 
be  his  wife,  whereas  she  knew  she  had  another  husband  liv- 
ing when  she  married  said  testator,  such  testamentary  disposi- 
tion will  be  held  void,  if  the  representation  or  concealment  was 
fraudulent  and  induced  the  execution  of  the  will.  Where,  how- 
ever, testator  was  informed  as  to  all  the  facts  in  the  case,  and 
was  told  by  the  woman,  before  marrying  her.  that  she  had  a 
husband  living,  who,  she  thought,  had  obtained  a  divorce  from 
her,  and  they  were  married  with  full  knowledge  of  the  facts, 
it  was  held  that  such  circumstances  showed  no  fraudulent  rep- 
resentation or  concealment.^^  Unfulfilled  promises  for  the  pay- 
ment of  money  by  the  widow  of  testator  to  a  caveator,  who 
withdrew  from  the  contest  in  reliance  thereon,  and  such  prom- 
ises by  the  widow  to  others,  who  did  not  caveat,  though  ready 
to  aid  in  the  contest  against  the  probate,  but  refrained  there- 
from because  of  the  promises,  do  not  amount  to  fraud,  either 
on  the  court,  or  on  such  persons,  and  are  not  ground  for  set- 
ting aside  a  decree  admitting  the  will  to  probate;  the  parties 
merely  having  withdrawn  from  the  contest  relating  to  their 
personal  rights  and  interests  in  consideration  of  promises  which 
were  not  performed.-" 
Creation  of  False  Impressions  in  Mind  of  Testator. 

Undoubtedly  a  knowingly  false  representation  of  facts  to 
one  who  proposes  to  make  a  testamentary  disposition  of  prop- 
erty, intended  to  influence  and  actually  influencing  his  testa- 
mentary act,  made  by  one  who  seeks  and  obtains  advantage 
thereby,  may  be  admitted  to  be  an  exertion  of  an  influence  that 

isLynch   v.   Clements,  24   N.   J.  20Myer's  Case,  67  N.  J.  Eq..  560. 

Eq.,  431,  at  p.  435.  Affirmed,  69  N.  J.  Eq.,  793- 

laPhilip    Dries    Case,    69    N.    J. 
Eq.,  475- 


154  Probate  Law  and  Practice. 

is  undue,  the  will  of  the  deceased  being  deemed  to  be  dom- 
inated, not  by  excessive  persuasion,  threats  or  force,  but  by 
fraud.^^  It  is  essential  however,  in  order  to  avoid  a  will  for 
fraud  of  this  nature,  that  the  statements  made  should  be  false. 
Thus,  where  the  only  evidence  of  undue  influence  was  the  ex- 
citing of  the  testator's  anger  against  his  daughter  because  of 
certain  visits  of  a  certain  person  at  her  house,  and  it  was  not 
shown  that  the  number  of  such  visits  was  misrepresented,  or 
that  his  mind  was  excited  to  an  undue  degree  of  indignation  on 
that  account,  it  was  proper  to  admit  the  will  to  probate. " 

A  case  of  undue  influence  by  false  statements  or  suggestions 
on  the  part  of  a  daughter  who  lived  with  testatrix  will  not  be 
made  out  by  mere  proof  that  she  acquiesced  in  her  mother's 
strong  prejudice  against  the  caveator  by  reason  of  an  inference 
drawn  by  her  in  respect  to  caveator's  conduct,  without  proof 
that  she  knew,  or  at  least  had  reason  to  believe,  that  her  moth- 
er's prejudice  was  unwarranted  by  the  facts.  If  her  mother 
had  questioned  her  with  respect  to  the  facts,  and  especially  if 
she  had  connected  such  questioning  with  her  preparations  to 
make  a  will,  perhaps  duty  would  have  required  her  to  disclose 
the  real  facts,  and  her  suppression  of  them  might  be  consid- 
ered fraudulent,  and,  if  it  influenced  the  mother,  the  influence 
might  be  considered  undue  f^  and  a  decree  admitting  a  will  to 
probate  was  reversed,  where  it  appeared  that  testator  was  a 
semi-imbecile,  subject  to  the  influence  of  a  sister,  who  was 
made  his  principal  legatee,  and  who  exerted  influence  against 
another  sister  by  telling  testator  that  the  other  sister  intended 
to  put  him  in  an  insane  asylum.-*  The  mere  fact  that  a  favored 
legatee  and  devisee  openly  denounces  a  person  who  is  discrim- 
inated against,  to  a  testatrix  who  is  well  in  body  and  strong  in 
mind,  and  is  surrounded  by  friends,  is  not  sufficient  proof  to 
create  a  presumption  against  the  instrument.^^ 

^^Stewart   v.   Jordan,   50   N.   J.  -^Alexander's    Case,    27    N.    J. 

Eq.,    733.      Zelozoskei    v.    Mason,  Eq..  463.     Affirmed,  29  N.  J.  Eq., 

64  N.  J.  Eq.,  327-  649- 

22In    re    Corblis'    Will,    52    Atl.  ^sDumont  v.  Dumont.  46  N.  J. 

Rep.,  996.    Affirmed,  65  N.  J.  Eq.,  Eq.,  222,.     Salter  v.  Ely,  56  N.  J., 

768.  357.     Affirmed,  58  N.  J.  Eq.,  581. 

23Zelozoskei  v.  Mason,  64  N.  J. 
Eq..  227. 


Fraud  and  Undue  Influence.  155 

Advice  or  Suggestions. 

Mere  advice  or  suggestions  to  a  testator  that  an  indicated 
testamentary  disposition  would  be  productive  of  justice  be- 
tween the  natural  objects  of  his  bounty  does  not  destroy  the 
freedom  of  testator's  will,  nor  constitute  undue  influence  suffi- 
cient to  vitiate  the  will.-^  To  attempt  to  persuade  a  testator, 
however,  is  treading  upon  dangerous  ground,  for  the  result 
may  be  that  he  will  be  led  to  assent  to  that  which,  of  his  own 
free  will,  he  would  not  have  assented  to.  It  is  impossible  to 
distinguish  by  a  fixed  rule  between  acts  which  are  within  the 
bounds  of  legitimate  influence  and  those  which  make  the  in- 
fluence undue.  Similar  acts  may  be  trifling  and  of  no  im- 
portance in  the  case  of  one  person,  and  overmastering  in  the 
case  of  another.  Their  efifect  must  depend  upon  the  relations 
between  the  parties  and  the  character,  strength  and  condition 
of  each,  and  must  be  determined  by  the  application  of  sound 
sense  to  the  facts  of  each  case.-^ 

Suggestions  and  persuasions  by  members  of  testator's  house- 
hold as  to  what  disposition  he  should  make  of  his  property 
are  not  necessarily  improper.  They  would  not  constitute  in- 
fluence which  is  undue  unless  they  became  importunities  so 
pressing,  or  repeated,  as  to  render  testator  powerless  to  resist 
them.^*  So  where  testator  was  enfeebled  with  disease  and 
lived  with  his  wife  and  certain  children  at  home,  other  children 
living  elsewhere  and  visiting  him  occasionally,  and  he  had 
previously  declared  his  intention  not  to  make  a  will,  and  under 
his  will  certain  children  living  at  home  received  a  larger  share 
of  his  property  than  they  would  have  had  if  he  had  died  intes- 
tate, and  there  was  evidence  that  his  wife  had  suggested  to 
him  that  it  would  be  unfair  to  his  other  children  if  a  certain 
child  should  receive  an  equal  share  of  his  estate,  owing  to  his 
previous  gifts  to  her,  it  was  held  that  this  evidence  was  insuffi- 
cient to  show  undue  influence  on  the  part  of  the  wife  and  the 
children  who  resided  at  home.^® 

26Elkinton    v.    Brick,    44    N.    J.  ^sArmstrong  v.  Armstrong,    6q 

Eq.,   154.     Tunison  v.   Tunison,  4  N.  J.  Eq.,  817-826. 

Brad.  Sur.  (N.  Y.),  138.  -Hn    re   Barber's   Will,   49   Atl. 

27Elkinton    v.    Brick,    44    N.    J.  Rep.,  826. 
Eq..    154-166. 


156  Probate  Law  and  Practice. 

Importunity. 

As  has  already  been  seen,  it  is  impossible  to  distinguish  by 
a  fixed  rule  between  acts  which  are  within  the  bounds  of 
legitimate  influence  and  those  which  make  the  influence  undue ; 
and  the  effect  of  all  acts  must  depend  upon  the  relations  be- 
tween the  parties  to  them,  and  the  character,  strength  and  con- 
dition of  each,  and  must  be  determined  by  the  application  of 
sound  sense  to  each  given  case.^°  Suggestion,  and  even  persua- 
sion, may  be  safely  used  with  the  testator,  if  they  do  not  de- 
stroy free  agency,  or  amount  to  moral  or  physical  coercion. 
No  rule  can  be  laid  down  to  define  the  limit  of  legitimate  in- 
fluence, but  each  case  must  depend  upon  and  be  determined  by 
the  circumstances  and  conditions  which  surround  it.^^  So  the 
fact  that  a  testator's  wife  urged  upon  him  the  propriety  of 
leaving  his  property  to  her  does  not  constitute  undue  influ- 
ence,^- nor  does  the  fact  that  a  wife  requests  her  husband  to 
appoint  her  one  of  the  executors  of  his  will  f^  but  importunity, 
which  cannot  be  and  is  not  resisted,  is  undue  influence.^* 

AfTection  and  Kind  Offices. 

The  influence  of  affection  and  kind  offices,  unconnected  with 
fraud  or  contrivance,  though  it  induces  gratitude  and  testa- 
mentary recompense,  is  not  undue,^^  and  the  influence  exerted 
by  members  of  testator's  household,  if  arising  only  from  good- 
will and  affection,  is  not  undue. ^"^     So  influence,  the  result  of 

^^Elkinton  v.  Brick,  44  N.  J.  Eq.,  son,  2  N.  J.  Eq.,  82.     In  re  Glee- 

154-  spin,  26   N.  J.   Eq.,   523.     Eddy's 

3iMcCoon    V.    Allen,    45    N.    J.  Case,  32  N.  J.  Eq.,  701.    Reversed. 

Eq.,  708.    Anderson  v.  Eggers,  61  33  N.  J.  Eq.,  574.    Dumont  v.  Du- 

N.  J.  Eq.,  85.     Reversed,  63  N.  J.  mont,  46  N.  J.  Eq.,  223-230.     Clif- 

Eq.,  264.  ton  v.  Clifton,  47  N.  J.  Eq.,  227. 

32Hughes    v.    Murtha,    3    N.    J.  White  v.  Starr,  47  N.  J.  Eq.,  244. 

Eq.,  288.  Lynch  v.  Clements,  24  N.  J.  Eq., 

33Black   v.   Foljambe,   39   N.   J.  431.     Byrnes    v.    Gibson,   68    Atl. 

Eq.,  234.  Rep.,  756. 

34Elkinton  v.  Brick,  44  N.  J.  Eq.,  36Armstrong   v.   Armstrong,    69 

154.  N.  J.  Eq.,  817-826.     In  re  Craft's 

35In  re  Eatley's  Will.  82  N.  J.  Estate.  94  Atl.  Rep.,  606.     In   re 

Eq.,  591-    Trumbull  v.  Gibbons,  22  Eatley's  Will,  82  N.  J.  Eq.,  591. 
N.  J.  L.,  117.     Lowe  v.  William- 


Fraud  and  Undue  Influence.  157 

kind  and  faithful  services  by  an  attendant  for  many  years,  is 
not  undue,  and  will  not  invalidate  a  bequest  to  such  attendant  f^ 
and  so  influence  acquired  by  kind  offices,  though  exerted  over 
a  testator  above  eighty  years  of  age,  whose  bodily  faculties  are 
impaired,  and  who,  without  good  reason,  entertains  feelings  of 
hostility  to  his  family,  cannot  invalidate  the  will.^^ 

Threats. 

Threats  of  personal  estrangement  and  non-intercourse  ad- 
dressed by  a  child  to  a  dependent  parent,  or  threats  of  litiga- 
tion between  the  children  to  influence  a  testamentary  disposi- 
tion of  property  by  the  parent,  constitute  undue  influence.'® 
So  where  a  widower,  eighty  years  old  and  bedridden  with 
paralysis,  having  five  children,  made  a  will  leaving  to  one  son 
and  his  wife,  who  lived  with  him,  nearly  all  his  property  for 
their  lives,  having  been  influenced  to  do  so  by  the  threat  of  this 
son  that  otherwise  he  and  his  wife  would  leave  the  testator,  it 
was  held  that  the  will  was  a  product  of  undue  influence.'**' 

EfTect  of  Confidential  Relations  Between  Testator  and  Ben- 
eficiary. 

The  existence  of  confidential  relations  between  the  testator 
and  a  favored  beneficiary,  standing  alone,  does  not  necessarily 
constitute  undue  influence.  It  is  but  natural  that  a  person 
when  disposing  of  his  property  in  anticipation  of  his  decease 
should  give  it  to  those  with  whom  he  is  on  terms  of  friendship, 
rather  than  to  strangers.  He  will  naturally  remember  the 
claims  of  his  wife  and  his  children ;  or,  in  case  he  has  no  im- 
mediate kindred,  he  may  be  prompted  by  gratitude  or  affec- 
tion to  benefit  those  with  whom  he  resides,  or  with  whom  he  is 
connected  socially.*^  So  the  mere  fact  that  the  sole  beneficiary 
of  the  will  was  the  confidential  companion  and  business  ad- 
viser of  the  testator  for  several  years  prior  to  his  death  is  not 

37In  re  Eddy,  32  N.  J.  Eq.,  701.  ^ogickles  Case,  63  N.  J.  Eq..  233. 

Reversed,  33  N.  J.  Eq..  574.  Affirmed,  64  N.  J.  Eq.,  791. 

38Lowe  V.  Williamson,  2  N.  J.  *^i    Underwood   on   Wills,   206. 

Eq.,  82.     In  re  Brengel's  Will,  95  In  re  Eatley's  Will,  82  N.  J.  Eq.. 

Atl.  Rep.,  750.  591,  and  see  "Effect  of  Confiden- 

•'"Moore   v.    Blauvelt,    15    N.   J.  tial  Relations."  p.  162,  infra, 
l-.q.,  367. 


158  Probate  Law  and  Practice. 

of  itself  evidence  of  undue  influence.*-  And  so  the  mere  fact 
that  testatrix  had  great  confidence  in  her  brother,  appealed  to 
him  for  advice,  and  accepted  from  him  such  assistance  and 
counsel  in  the  management  of  her  business  as  she  had  a  right  to 
expect  from  one  standing  in  so  close  a  relation,  and  that  this 
brother  rendered  such  assistance,  cannot  and  ought  not  to  be 
made  the  foundation  and  sole  support  of  a  claim  that  he  im- 
properly influenced  her  in  favor  of  his  children ;  there  should 
be  proof  of  other  facts  or  circumstances  from  which  it  may  be 
fairly  inferred  that  the  will  of  the  testatrix  was  dominated  by 
that  of  the  brother,  and  her  free  agency  thereby  destroyed.*^ 
So  the  confidential  relationship  existing  between  a  testator  and 
his  spiritual,  as  well  as  secular,  adviser,  who  was  made  residu- 
ary legatee,  is  not  alone  sufficient  to  raise  a  presumption  of 
undue  influence.**  A  relation  par  amour  carries  no  presump- 
tion of  the  exertion  of  undue  influence  by  the  mistress ;  but  as 
the  law  abhors  immorality,  when  the  influence  which  produces 
a  will  arises  from  an  immoral  relation,  its  existence,  standing 
as  a  significant  fact,  will  be  closely  and  suspiciously  scrutinized 
by  the  courts,  to  observe  whether  the  challenged  act  of  the  man 
was  induced  by  an  undue  interference  with  his  free  action.*' 

The  existence  of  confidential  relations  between  the  testator 
and  the  favored  legatee,  supplemented  by  other  indicia  of 
undue  influence,  such  as  the  exclusion  from  testator  of  the 
natural  objects  of  his  boimty,  clandestinity  in  the  execution 
of  the  will  or  the  active  participation  of  the  favored  legatee  in 
procuring  its  execution,  will  in  many  cases  raise  a  presumption 
of  undue  influence.  Thus,  where  it  is  established  that  testator 
was  mentally  enfeebled  by  disease,  and  under  the  control  of 
the  principal  beneficiary,  who  was  present  at  the  execution  of 
the  will,  and  that  the  natural  objects  of  the  testator's  bounty 
were  excluded  from  his  society  when  the  will  was  made,  the 
burden  is  upon  such  legatee  to  show  that  the  instrument  was 

*-Wheeler  v.  Whipple,  44  N.  J.          ^^Arnault  v.  Arnault,   52  N.  J. 

Eq.,  141.     Affirmed,  45  N.  J.  Eq.,  Eq.,    801.      Schwalber    v.    Ehman, 

367-  62    N.    J.    Eq.,    314.      Middleton's 

43McLaughlin's    Case,   69   N.  J.       Case,  68  N.  J.  Eq.,  584.    Affirmed, 

Eq.,  479-  ib.,    798.     In    re    Willford's   Will, 

**In   re  Sparks'  Case,  63  N.  J.       51  Atl.  Rep.,  501. 
Eq.,  242. 


Fraud  and  Undue  Influence.  159 

executed  without  the  exercise  of  undue  influence  by  him.*'' 
This  rule  has  been  extended  to  a  case  in  which  testatrix  pos- 
sessed testamentary  capacity  "equal  to  any  woman"  ;■*'  and 
where  the  testator  has  made  an  unnatural  disposition  of  his 
property,  it  is  applied  still  more  strictly.*^  So  where  testator 
was  ninety  years  of  age,  and  had  exhibited  signs  of  mental  de- 
cline, and  had  made  a  prior  will  making  an  almost  equal  dispo- 
sition among  his  children,  and  his  later  will  favored  the  child 
accused  of  exerting  undue  influence,  and  none  of  testator's 
children,  except  the  son  who  was  alleged  to  have  unduly  in- 
fluenced the  testator,  were  present  when  the  will  in  question 
was  made,  and  by  said  son's  direction  it  was  concealed  from 
them,  it  was  held,  in  view  of  testator's  mental  condition,  to 
warrant  the  setting  aside  of  the  will  for  the  undue  influence  of 
the  son.*^  So  where  a  testator,  who  was  weak  minded  and 
easily  influenced,  and  who  was  in  the  last  stages  of  consump- 
tion, went  to  live  with  a  boyhood  friend,  an  active  business  man 
of  acute  mind,  and  about  a  month  later  made  his  will,  leaving 
all  his  property  to  the  friend  and  not  mentioning  a  sister,  his 
next  of  kin,  and  the  will  was  drawn  by  a  lawyer,  who  was 
named  as  executor,  with  whom  the  beneficiary  had  his  office, 
the  beneficiary  bringing  written  instructions  from  the  testator 
to  the  lawyer  for  the  disposal  of  his  property,  it  was  held  suffi- 
cient to  establish  that  the  will  was  executed  under  the  undue 
influence  of  the  beneficiary.^" 

Operation  and  Effect. 

When  it  is  shown  that  a  portion  only  of  a  will  is  the  product 
of  undue  influence,  and  such  portion  can  be  severed  from  the 

^•'Haydock  v.  Haydock,  34  N.  J.  Sparks'   Case,  63   N.  J.   Eq.,  242, 

Eq.,  570.     Dale  v.  Dale,  38  N.  J.  and    see    "Effect    of    Confidential 

Eq.,  274.    Byard  v.  Conover,  39  N.  Relations,''  p.  162,  infra. 

J.  Eq.,  244.    Waddington  v.  Buzby,  ^^Ramsdell    y.    Streeter,    62    N. 

43  N.  J.  Eq.,    154.     Reversed,  45  J.  Eq.,  718. 

N.  J.  Eq.,  173.    Brick  v.  Brick,  43  ^^Carroll  v.  Hause,  48  N.  J.  Eq., 

N.  J.  Eq.,  167.     Affirmed  44  N.  J.  269. 

Eq.,  282.     Boisaubin  v.  Boisaubin,  '♦"Edwards  v.  Edwards,  63  N.  J. 

51  N.  J.  Eq.,  252.     Koegel  v.  Eg-  Eq.,  224. 

ner,  54  N.  J.  Eq.,  623.     Claffey  v.  ^oBarkman  v.  Richards,  63  N.  J. 

T.edwith,  56  N.  J.  Eq.,  333.    In  re  Eq.,  211. 
12 


i6o  Probate  Law  and  Practice. 

remainder,  the  whole  will  is  not  necessarily  void,  but  the  por- 
tion unaffected  by  the  undue  influence  will  be  admitted  to  pro- 
bate.^^  But  in  a  case  where  there  is  great  doubt  upon  the 
evidence,  the  court  will  not  reject  so  much  of  the  will  as,  from 
fraud  in  its  inception  or  other  cause,  is  not  to  be  taken  as  testa- 
tor's will,  and  admit  the  residue  to  probate  f-  and  where  it  is 
impossible  to  determine  to  what  extent  specific  legacies  have 
been  tainted  by  undue  influence,  the  whole  will  must  be  set 
aside  on  the  ground  of  undue  influence/'^ 

A  will  obtained  by  undue  influence  may  be  ratified  by  the 
testator's  retaining  it  in  his  possession  uncancelled  for  any 
considerable  length  of  time  after  its  execution,  and  after  the 
removal  of  the  influence.'"'*  In  the  case  of  Small  v.  SmalU^^ 
the  will  remained  uncancelled  for  four  years.  In  Wilson  v. 
Moran,^^  it  so  remained  for  six  years  ;  and  in  Pierce  v.  Pierce,^' 
it  was  kept  by  the  testator  nearly  two  years  after  its  execution, 
when  he  was  alleged  to  have  been  intoxicated. 

EVIDENCE. 

PRESUMPTIONS  AND  BURDEN  OF  PROOF. 

General  Rules. 

The  legal  presumption  is  always  in  favor  of  the  will :  and 
one  who  contests  its  validity  on  the  ground  that  it  was  the 
product  of  undue  influence  must  primarily  establish  that  such 
influence  existed  as  is  called  undue.^^  As  has  been  said  above, 
whether  in  any  given  case  undue  influence  was  exerted  upon 


sijarman   on   Wills,   37.     In    re  54j„  re  Seaman,  6  N.  J.  L.  J., 

Cooper's  Will,  75  N.  J.  Eq.,   I77-  201.     Taylor  .v.  Kelly,  31  Ala..  59. 

Affirmed,  76  N.  J.  Eq.,  614.  and  see  Shailer    v.    Bumstead,    99    Mass., 

in  re  Will  of  Henry  Vanderveer,  112. 

20  N.  J.  Eq.,  463-470.     Reversed,  ^^^'4  Greenl.   (Me.)   220. 

21  N.  J.  Eq.,  561.  •'^63  Bradf.,  172-178. 
s^In    re    Vanderveer.    20    N.    J.  sr^g  Mich.,  412-418. 

Eq.,  463.     Reversed,  21  N.  J.  Eq.,  •'•^Byrnes  v.  Gibson,  68  Atl.  Rep., 

61.  756.     Day   v.    Day,   3   N.   J.   Eq., 

53In  re  Cooper's  Will,  75  N.  J.  549-     In  re  Craft's  Estate,  94  Atl. 

Eq.,  177.     Affirmed,  76  N.  J.  Eq.,  Rep.,  606.     In  re  Eatley's  Will,  82 

614-                              .  N.  J.  Eq.,  591. 


Fraud  and  Unduk  Influence.  i6i 

testator,  must  be  determined  from  the  facts ;  it  is  not  a  pre- 
sumption, but  a  conclusion."''' 

As  has  been  said  before,  mere  possession  of  influence,  and 
opportunity  and  motive  to  exert  it,  afford  no  presumption  of 
undue  influence :  it  must  appear,  either  directly  or  by  justifiable 
inference  from  facts  proved,  that  the  influence  was  exerted, 
and  operated  to  dominate  testator  and  to  coerce  him  to  make  a 
disposition  of  his  property  which  he  would  not  otherwise  have 
made.®"  So  the  inference  of  undue  influence  will  not  be  drawn 
alone  from  proof  of  opportunity  to  exert  it,  nor  will  influence 
be  deemed  undue  which  may  be  reasonably  inferred  to  have 
been  produced  by  kind  attentions  and  services  rendered  by  the 
beneficiary.®^  Suspicious  circumstances  susceptible  of  an 
interpretation  which  favors  honesty  are  insufiicient  to  establish 
undue  influence,  in  the  production  of  an  ofiicious  will."- 

Fraud  in  the  making  of  the  will  should  not  be  inferred 
because  it  was  possible  or  even  probable,  but  should  be  shown 
by  positive  proof,  or  by  circumstances  of  such  force  as  not  to 
permit  of  serious  doubt  f^  and  though  fraud  in  procuring  a  will 
may  be  inferred,  the  inference  cannot  lawfully  be  drawn,  unless 
it  is  natural  and  necessary,  and  the  court  will  refuse  to  impute 
fraud  when  the  evidence  does  not  necessitate  a  belief  in  its 
existence."* 

Burden  of  Proof — In  General. 

The  general  rule  is  that  the  party  alleging  fraud  or  undue 
influence  must  prove  it,  either  directly,  or  by  establishing  such 
circumstances  as  will  warrant  a  presumption  against  the  instru- 
ment which,  in  the  absence  of  affirmative  evidence  showing  that 
the  paper  was  the  spontaneous  act  of  the  testator,  must  control 


""^In  re  Humphrey,  26  N.  J.  Eq.,  Atl.  Rep.,  756.  and  .see  "Suspicious 

513.     Affirmed,  27  N.  J.  Eq.,  567.  Circumstances,"  p.  152,  supra. 

^"Schuchhardt    v.    Schuchhardt,  *^-Howell  v.  Taylor,  50  N.  J.  Eq., 

62  N.  J.,  Eq.,  710,  and  see  "vSus-  428  and  see  "Suspicious   Circum- 

picious     Circumstances,"     p.     152,  stances."  p.   152,  supra, 

supra.  "•Tn  re  Vanderveer,  20  N.  J.  P"q., 

6iln  re  Anastasia  Davis,  73  N.  463.     Reversed,  21  N.  J.  Eq.,  561. 

J.  Eq.,  617.     Byrnes  v.  Gibson.  68  «*Dale  v.  Dale,  36  N.  J.  Eq.,  269. 

Reversed,  38  N.  J.  Eq.,  274. 


i62  Probate  Law  and  Practice. 

as  a  conclusion  of  fact."'  The  burden  is  upon  the  party  claim- 
ing a  will  to  have  been  the  result  of  undue  influence  to  estab- 
lish, not  only  that  such  influence  existed,  but  that  it  produced 
a  testamentary  disposition  which  the  testator  would  not  have 
made  if  he  had  not  been  coerced.'^"  When  undue  influence  is 
claimed  to  be  established  by  inference  from  facts  and  proofs, 
and  upon  all  the  facts  proved  an  equally  justifiable  inference 
may  be  drawn  that  the  will  executed  was  such  as  the  testator 
vminfluenced  would  have  made  under  the  circumstances,  the 
burden  on  contestants  is  not  supported.*'' 

Effect  of  Confidential  Relations. 

It  is  settled  that  the  voidability  of  gifts  inter  vivos  and  the 
invalidity  of  wills  upon  the  ground  of  undue  influence  rest 
upon  difl:erent  considerations.  In  the  first  class  of  cases,  there 
arises  a  prima  facie  presumption  of  undue  influence  whenever 
a  donee  occupies  a  confidential  relation  to  the  donor.  In  this 
class  of  cases,  it  is  essential  that  the  donor  shall  have  the  oppor- 
tunity of  receiving  advice  from  an  independent  competent 
adviser.  In  the  second  class  of  cases,  however,  there  is  no 
prima  facie  presumption  of  undue  influence  merely  because  the 
beneficiary  stood  in  a  confidential  attitude  toward  the  testator, 
nor  does  the  fact  that  the  testator  did  not  seek  or  have  inde- 
pendent advice  of  itself  raise  a  presumption  of  undue  influ- 
ence.**^ The  rule  requiring  a  person  disposing  of  his  property 
by  will  to  exercise  judgment  independently  of  the  confidence 
induced  by  his  confidential  relationship  with  his  legal  adviser 
only  requires  that  the  testator  exercise  his  independent  judg- 

65Kise  V.  Heath,  Z2>  N.  J.  Eq.,  72,  N.  J.  Eq.,  617.    Johnson's  Case, 

239-244.      Stoutenburgh    v.    Hop-  80  N.  J.  Eq.,  525. 

kins,  43  N.  J.  Eq.,  577.    Affirmed,  •'ein  re  Anastasia  Davis,  7i  N. 

45  N.  J.  Eq.,  890.    Dumont  v.  Du-  J.  Eq.,  617. 

mont,  46  N.  J.  Eq.,  223.    Salter  v.  erschuchhardt    v.    Schuchhardt, 

Ely,  56  N.  J.  Eq.,  357-     Affirmed,  62  N.  J.  Eq.,  710. 

58  N.  J.  Eq.,  581.    Schuchhardt  v.  esgpark's    Case,    63    N.    J.    Eq., 

Schuchhardt,    62    N.    J.    Eq.,    710.  242.     In  re  Cooper's  Will,  75  N. 

Barkman    v.    Richards,    63    N.    J.  J.   Eq..    177.     Affirmed,    76   N.   J. 

Eq.,  211.     In  re  Anastasia  Davis,  Eq.,  614. 


Fraud  and  Undue  Influence.  163 

ment,  and  does  not  reqnire  proof  of  proper  independent 
advice."^ 

The  mere  fact  that  proponent  occupied  a  position  of  trust 
and  confidence  toward  the  testator,  coupled  with  the  fact  that 
he  is  the  residuary  legatee,  does  not  create  a  presumption 
against  the  validity  of  the  legacy  given  by  the  will,  and  throw 
upon  him  the  burden  of  establishing  the  absence  of  undue 
influence.  So  the  mere  fact  that  the  sole  beneficiary  of  the 
will  was  the  confidential  companion  and  business  adviser  of 
the  testatrix  for  several  years  prior  to  her  death  does  not 
throw  the  burden  of  proof  upon  such  beneficiary  to  prove  the 
absence  of  undue  influence,  when  there  is  no  evidence  that  he 
took  advantage  of  her  position.'"  If,  however,  these  bare  facts 
are  combined  with  other  circumstances  tending  to  show  impo- 
sition, such  a  presumption  arises,  and  the  burden  is  cast  upon 
the  legatee  to  rebut  it.'' 

Slight  circumstances,  in  addition  to  such  relations,  will  throw 
on  the  beneficiary  the  burden  of  showing  that  testator  was  not 
unduly  influenced.'-  Such  is  the  case  if  the  evidence  shows 
that  the  testator  was  of  weak  mind.''^  So  also  if  the  legatee 
selects  the  witnesses,  or  makes  an  effort  to  exclude  the  natural 
objects  of  testator's  bounty  from  his  society,  or  conceals  the 
making  of  the  will  or  the  fact  that  the  will  has  been  made.'* 
So  if  the  legatee  drew  the  will,  or  caused  it  to  be  drawn  in  his 
own  favor.''     So  where  an  attorney,  who  had  been  the  legal 

^^In  re  Cooper's  Will,  75  N.  J.  614.      In    re    Gordon's    Estate,    89 

Eq.,   177.     Affirmed,  76  N.  J.  Eq.,  Atl.  Rep.,  33. 
614.  -sDale    V.    Dale,    38    N.   J.    Eq., 

^^Wheeler  v.  Whipple,  44  N.  J.  274.    White  v.  Starr,  47  N.  J.  Eq., 

Eq.,  141.     Affirmed,  45  N.  J.  Eq.,  244-261.      Barkman    v.    Richards, 

367.  63  N.  J.  Eq.,  211-213.    In  re  Anas- 

''Hn  re  Gordon's  Estate,  89  Atl.  tasia  Davis,  73  N.  J.  Eq.,  617. 
Rep.,  33.     Spark's  Case,  63  N.  J.  '^^Wheeler  v.  Whipple,  44  N.  J. 

Eq.,  242.     In  re  Cooper's  Will,  75  Eq.,  141.    Zelozoskei  v.  Mason,  64 

N.  J.  Eq.,  177.    Affirmed,  76  N.  J.  N.  J.   Eq.,  327.     White   v.   Starr, 

Eq.,    614.      Zelozoskei    v.    Mason,  47  N.  J.  Eq.,  244-261. 
64    N.    J.    Eq.,    327.      Armstrong  "^Dale's   Appeal,   57   Conn.    127, 

V.   Armstrong,   69   N.  J.   Eq.,  817.  17    Atl.    Rep.,    757.      Barkman    v. 

In    re    Banvard's    Estate,    89   Atl.  Richards,  63  N.  J.  Eq.,  211.    In  re 

Rep.,  1024.  Spark's   Case,  63   N.  J.   Eq.,  242. 

72In  re  Cooper's  Will,  75  N.  J.  White  v.  Starr,  47  N.  J.  Eq.,  244- 

Hq.,   177.     Affirmed,  76  N.  J.  Eq.,  261. 


164  Probate  Law  and  Practice. 

adviser  of  testatrix  for  some  years,  prepared  her  will  and  codi- 
cil, whereby  he  was  appointed  executor  and  received  a  specific 
legacy  and  a  large  share  of  the  estate  as  residuary  legatee, 
his  son  being  also  given  a  specific  legacy  by  the  will,  and  the 
attorney  also  procured  the  witnesses  to  the  will  and  codicil,  and 
both  were  executed  under  his  personal  supervision,  it  was  held 
that  there  was  a  presumption  of  undue  influence  on  his  part, 
and  that  the  burden  of  proof  was  on  him  to  show  that  the  will 
was  the  free  act  of  the  testatrix.'"  So  where  a  testator,  who 
was  weak-minded  and  susceptible  to  slight  influence,  resided 
with  one  of  his  four  brothers,  who  then  apparently  dominated 
him,  and  who  attended  testator  to  the  office  of  a  lawyer,  where, 
in  his  presence,  testator  made  his  will,  by  which  he  gave  his 
entire  estate  to  this  brother  to  the  exclusion  of  his  other  broth- 
ers, after  which  the  favored  brother  took  the  will,  endorsed 
it  as  the  will  of  the  testator,  and  retained  it  until  after  testa- 
tor's death,  it  was  held  that  the  burden  was  upon  the  favored 
brother  to  show  that  the  instrument  was  executed  without  the 
exercise  of  undue  influence  by  iiim.'"  So  where  a  woman, 
whose  mind  was  enfeebled  by  long  indulgence  in  drink,  and 
who  was  frequently  delirious  for  one  or  two  days  afterwards 
from  the  effects  of  the  debauch,  made  a  will  in  favor  of  a 
church,  in  the  presence  of  the  priest,  who  administered  to  her 
the  last  sacraments,  which  will  was  contrary  to  an  agreement 
with  her  husband,  and  the  priest  kept  the  will  and  no  one  men- 
tioned it  to  the  husband,  it  was  held  that  the  circumstances  were 
indicia  of  undue  influence,  and  that  the  burden  of  proof  was 
upon  the  priest  to  show  that  the  will  was  freely  made."*  But 
the  relations  between  testatrix,  a  widow  of  about  fifty  years  of 
age,  suft'ering  from  a  fatal  illness,  and  her  sister,  the  benefi- 
ciary, with  whom  she  lived,  testatrix  being  at  liberty  to  visit 
other  relatives,  some  of  whom  were  at  enmity  with  the  bene- 
ficiary, who  nursed  and  ministered  to  her,  is  not  a  confidential 
relation,  such  as  would  with  other  slight  circumstances,  create 
a  presumption  of  undue  influence.^" 

^6In  re  Cooper's  Will,  75  N.  J.  '^^n  re  Howard,  9  N.  J.  L.  J.. 

Eq.,  177.     Affirmed,  76  N.  J.  Eq.,  144. 

614-  •'9In  re  Eatley's  Will,  82  N.  J. 

"Boisaubin  v.  Boisaubin,  51  N.  Eq.,  591.     In  re  Brengel's  will,  95 

J.  Eq.,  252.  Atl.  Rep.,  750. 


Fraud  and  Undue  Influence.  165 

In  the  case  of  Dale  v.  Dale^°  the  Court  of  Errors  and  Appeals 
threw  the  burden  on  a  son  to  show  his  mother's  free  agency  in 
making  a  will,  where  it  was  made  to  appear  that  the  mother 
was  of  feeble  mind ;  that  this  son  was  instrumental  in  prepar- 
ing the  will ;  that  by  it  he  took  the  bulk  of  the  estate,  to  the 
exclusion  of  a  brother  for  whom  the  mother  had  expressed 
affection  before  coming  under  the  beneficiary's  influence ;  and 
that  the  mother  was  prejudiced  against  the  injustice  of  disin- 
heriting a  child,  although  the  son  charged  with  exerting  the 
undue  influence  was  hundreds  of  miles  from  his  mother  at  the 
time  the  will  was  made,  and  had  not  seen  her  for  weeks,  though 
in  correspondence  with  her  about  the  execution  of  the  will. 

When  Burden  Sustained. 

Where  the  burden  is  cast  upon  the  proponents  of  a  will  to 
show  that  undue  influence  has  not  been  exerted,  such  burden 
will,  as  a  general  rule,  be  sustained  by  a  general  denial  of  undue 
influence  by  the  person  alleged  to  have  exercised  it,  if  other- 
wise credible  and  not  challenged  by  other  facts ;  but  where 
testatrix  made  a  will  in  favor  of  a  church  in  the  presence  of  the 
priest,  who  administered  to  her  the  last  sacraments,  and  there 
were  sufficient  indicia  of  undue  influence  found  to  cast  the 
burden  of  proof  of  showing  the  absence  of  undue  influence 
upon  proponents,  it  was  held  that  such  burden  was  not  suc- 
cessfully sustained  by  a  general  denial  by  the  priest  of  undue 
influence,  coupled  with  a  refusal  to  tell  what  was  said  in  the 
confessional  f^  and  such  burden  will  not  be  sustained  by  the 
opinions  of  the  subscribing  witnesses  that  the  testator  had  not 
been  influenced,  and  the  fact  that  the  testator,  during  the 
months  covered  by  the  process  of  will-making,  had  echoed  the 
arguments  of  the  favorite  heirs  for  partially  disinheriting  a 
proper  object  of  his  bounty,  where  the  favorite  heirs  did  not 
testify  and  explain  their  participation  in  the  making  of  the  will 
or  deny  the  exertion  of  undue  influence.**-  So  the  fact  that  the 
testator,  while  still  surrounded  by  the  same  influences,   ex- 

^038  N.  J.  Eq.,  274.  82ciaffey   v.   Ledwith,   56   N.  J. 

s^In  re  Howard,  9  N.  J.  L.  J.,       Eq.,  333. 
144.     In  re  Eatley's  Will,  82  N.  J. 
Eq.,  591-600. 


J 66  Probate  Law  and  Practice. 

pressed  his  g'ratitude  toward  the  beneficiaries  and  his  satisfac- 
tion with  the  will  he  had  made,  is  not  sufficient  to  prove  the 
absence  of  undue  influence.^^  But  the  testimony  of  a  legatee 
charged  with  having  obtained  a  will  by  undue  influence,  cannot 
be  arbitrarily  disregarded,  where  such  testimony  is  not  contra- 
dicted by  other  credible  testimony,  or  discredited  by  its  own 
improbability.^*  But  the  testimony  of  a  legatee  trying  to  save 
his  legacy  by  his  own  testimony  is  to  be  viewed  with  careful 
and  even  jealous  scrutiny;  if,  however,  his  statements  are  veri- 
fied by  other  circumstances,  or  by  the  experience  of  ordinary 
human  conduct  of  persons  similarly  conditioned,  they  are  not 
to  be  disregarded;^^  and  the  uncontradicted  testimony  of  the 
beneficiary  of  a  will  that  there  was  no  attempt  on  her  part  to 
influence  testator's  testamentary  disposition,  and  that  the  sub- 
ject of  the  will  was  not  even  mentioned  between  them,  supports 
a  finding  that  there  was  no  undue  influence  exercised.*'' 

Effect  of  Participation  of  Legatee  in  Execution  of  Will. 

The  fact  that  the  draftsman  of  the  will  is  a  favored  legatee, 
or  even  the  sole  legatee,  while  it  calls  for  suspicious 
scrutiny,  will  not  invalidate  the  will  without  some  more  certain 
evidence  of  fraud  or  undue  influence.*^  No  matter  if  the  will 
is  drawn  by  the  principal,  or  even  sole  legatee,  if  it  is  made  by 
a  testator  possessing  adequate  capacity,  and  it  is  shown  that  he 
knew  its  contents  when  he  published  it,  and  it  appears  to  have 
been  executed  in  the  manner  prescribed  by  the  statute,  the  court 
must  in  obedience  to  the  law  of  the  land  uphold  it  as  the  will 
of  the  testator  and  admit  it  to  probate,  unless  satisfactory 
evidence  is  produced,  showing  that  it  is  the  product  of  fraud. 
Every  person  competent  to  make  a  will  has  a  right,  as  incident 
to  the  right  of  testamentary  disposition,  when  he  desires  to  put 
his  testamentary  wishes  into  legal  form,  to  the  aid  of  any  per- 

ssSickles'    Case,    63    N.    J.    Eq.,  s-Rusling  v.   Rusling,   36   N.  J. 

233.     Affirmed,  64  N.  J.  Eq.,  791.  Eq.,  603.     Brick  v.   Brick,  43   N. 

8*In  re  Cooper's  Will,  75  N.  J.  J.   Eq.,    167.     Affirmed,   44   N.   J. 

Eq.,  177.     Affirmed,  76  N.  J.  Eq.,  Eq.,  282.     Waddington  v.  Buzby, 

614.  45  N.  J.  Eq..  173.    Bennett  v.  Ben- 

85In  re  Willford's  Will,  51  Atl.  nett,  50  N.  J.  Eq.,  439.     Koegel  v 

Rep.,  SOI.  Egner,  54  N.  J.  Eq.,  623. 

seQrant  v.  Stamler,  68  N.  J.  Eq., 
555. 


Fraud  and  Undue  Influence.  167 

son  he  may  select.  This  right  in  this  respect  is  absohite;  and 
when  he  exercises  this  right  according  to  his  own  mind,  free 
from  all  improper  control,  though  he  select  the  person  he 
intends  to  make  his  principal  beneficiary,  that  fact  standing 
alone,  and  in  the  absence  of  any  evidence  tending  to  show  an 
abuse  of  confidence,  constitutes  no  reason  whatever  why  pro- 
bate of  the  will  should  be  refused.***  So  evidence  that  the  hus- 
band of  the  chief  beneficiary  under  a  will  instructed  the  drafts- 
man was  held  insufficient  to  establish  undue  influence,  where  it 
appeared  that  the  provisions  of  the  will  were  those  insisted  on 
by  the  testatrix,  and  that  they  were  radically  diti'erent  from  the 
provisions  he  had  suggested.*^  So  the  facts  that  the  drafts- 
man of  the  will  is  executor,  and  his  wife  and  son  are  favored 
legatees,  while  they  call  for  suspicious  scrutiny,  will  not  invali- 
date the  will  without  more  certain  evidence  appearing  of  fraud 
or  undue  influence. ^^ 

The  fact  that  present  and  former  members  of  testator's 
household,  giving  attention  to  him  when  he  sorely  needed  it, 
remained  in  his  room  while  he  gave  instructions  to  his  lawyer, 
and  while  he  executed  his  will,  which  was  very  favorable  to 
them,  even  though  their  conduct  in  that  respect  may  be  charac- 
terized as  indecorous  and  improper,  will  not  justify  the  infer- 
ence that  such  presence  constituted  undue  influence,  because 
that  requires  the  assumption  that  their  presence  operated  to 
destroy  testator's  free  agency  and  so  dominated  his  will  as  to 
compel  him  to  do  what  he  did  not  desire  to  do;  if  their  pres- 
ence reminded  him  of  their  love  and  attention,  and  recalled  or 
stimulated  his  own  feelings  of  affection  for  them,  the  influence 
thus  produced  cannot  be  said  to  be  undue,  unless  it  deprived 
him  of  the  power  to  do  what  he  wanted  to  do.^'  But  where 
the  person  who  drafts  a  will,  which  bestows  upon  him  a  sub- 
stantial part  of  the  testator's  estate,  procures  its  execution  in 
his  own  family,  with  no  other  witnesses  present,  except  one 

^^Bennett   v.   Bennett,   50  N.  J.  soQilman  v.  Ayer,  47  Atl.  Rep., 

Eq.,  440.     Waddington   v.   Buzby,  1049.     Affirmed,  63  N.  J.  Eq.,  806. 

45  N.  J.  Eq.,  173.    Johnson's  Case,  ^^Waddington  v.  Buzby,  45  N.  J. 

80  N.  J.  Eq.,  525.     In  re  Cooper's  Eq.,   173. 

Will,  75  N.  J.  Eq.,  177.    Affirmed,  oiArmstrong   v.   Armstrong,   69 

76  N.  J.  Eq.,  614.  N.  J.   Eq.,  817-825. 


i68  Probate  Law  and  Practice. 

whom  the  evidence  discloses  as  his  intimate  friend,  the  court 
in  which  probate  of  the  will  is  sought  should  be  cautious  and 
careful  in  its  examination  of  the  facts,  and  in  its  determination 
that  it  was  the  free  act  of  the  testator.  This  is  particularly  so 
when  he  who  drafts  the  will  is  not  related  to  or  connected  with 
the  alleged  testator,  and  there  is  no  proof  of  such  a  degree 
of  intimacy  as  would  render  it  apparently  natural  that  the 
testator  should  pass  over  the  claims  of  near  relatives,  with 
whom  he  was  on  terms  of  affection,  in  favor  of  the  scrivener  ;^- 
and  a  lawyer,  employed  by  a  testatrix  with  unsettled  testamen- 
tary notions  as  to  the  disposition  of  her  entire  estate,  to  draw 
her  will,  can  participate  in  her  bounty  in  a  material  degree,  only 
after  a  very  clear  exhibition  that  his  conduct  was  fair  and 
unobjectionable,  and  that  the  testatrix  exercised  with  relation 
to  her  bounty  to  him  a  judgment  independent  of  the  confidence 
induced   by  his  confidential  relation  to  her.®^ 

Unequal  or  Unjust  Disposition  of  Property. 

The  right  or  dominion  over  property  is  not  a  natural  one. 
It  is  a  product  of  the  social  compact,  bestowed  as  a  reward  for 
the  virtues  or  superiority  by  which  the  property  was  produced 
or  acquired.  When  a  man  dies,  the  property  which  he  has 
accumulated  must  remain  behind  him,  and  he  possesses  no  nat- 
ural right  to  transmit  it  to  persons  of  his  selection.  Under 
natural  law,  at  his  death,  it  would  go  to  the  strong,  and  those 
to  whom  he  would  give  it  might  never  take.  Here  again  the 
social  compact  pledges  itself  to  enforce  his  disposition  of  it. 
The  only  requisites  to  this  enforcement  are,  that  he  shall 
observe  specified  formalities,  be  of  certain  age,  and  possess 
mental  capacity.  His  power  of  disposition  is  absolute.  Pos- 
sessing capacity,  he  may  give  to  whom  he  pleases.  This  power 
is  a  weapon  to  the  weak  and  the  old,  who,  without  it,  might  be 
despised  and  neglected.  The  courts  cannot  reject  a  will,  be- 
cause it  does  not  comport  with  their  ideas  of  propriety  and  jus- 
tice, or  even  because  it  appears  to  be  unreasonable,  unjust, 
injudicious  and  cruel,     li  the  testator  observes  the  require- 


92Skillman  v.  Lanehart,  73  N.  J.  ^^Farnum    v.    Boyd,    56    N.    J. 

Hq-  344  Eq.,  766. 


Fraud  and  Undue  Ixfluexce.  169 

nieiits  of  the  law,  and  possesses  capacity,  he  may  lawfully  make 
an  unjust  will.''^ 

In  the  case  of  Den  v.  Gibbons:"'  Chief  Justice  Green  used  the 
following  language:  "If  this  will  be  invalid,  no  virtue  of  the 
testator  can  sustain  it.  If  valid,  no  vices  of  the  testator  can 
impair  it.  ]\Iuch  less  can  the  validity  of  this  will  depend  upon 
the  consistency  of  its  provisions  with  our  ideas  of  fairness  or 
propriety,  or  even  with  the  principles  of  justice  and  humanity. 
Such  a  test  of  its  validity  would  be  certainly  subversive  of  an 
absolute  control  and  dominion  which  the  law  gives  to  everv 
man  over  his  own  property.  The  question  for  decision  is  not. 
is  this  a  fair  will,  a  just  will,  an  equitable  will,  the  will  of  a  right 
thinking  man  and  a  kind-hearted  father,  but  is  it  Thomas  Gib- 
bons' will?"  It  is  only  upon  allegations  of  fraud  that  the  court 
will  inquire  into  the  reasons  for  changes  and  inequalities  in 
testamentary  dispositions ;  and  then  it  will  consider  them 
merely  in  connection  with  and  as  corroborative  of  proofs  which 
tend  to  show  that  the  will  was  not  the  voluntary  act  of  the  per- 
son who  made  it."" 

"Inofficious"  is  the  equivalent  of  unnatural.  The  term  is 
predicable  of  such  instruments  as  ignore  the  moral  claims  upon 
the  testator  which  the  ties  of  kinship  suggest.  When,  as  has 
before  been  seen,  there  is  a  glaring  disregard  by  a  testator  of  a 
child — especially  if  such  child  is  helpless  by  reason  of  infancy 
or  disease — in  favor  of  a  stranger,  a  court,  while  saying  that  a 
man  can  do  as  he  please  with  his  property,  will  be  alert  in  seek- 
ing for  the  presence  of  some  influence  which  must  have  warped 
his  judgment  and  controlled  his  will.  The  testamentary  act  is 
so  unlike  the  product  of  a  healthy  and  independent  mind,  that 
the  act  alone  is  strongly  evidential  of  the  existence  of  some 
extrinsic  undue  influence.  The  probative  force  of  such  a  test- 
amentary act  rises  and  falls  in  the  degree  of  its  unreasonable- 
ness ;  and  therefore  the  character  and  degree  of  probative  force 

9*Smith  V.  Smith,  48  N.  J.  Eq.,  J.  Eq.,  446-458.     Dumont  v.   Du- 

566-590.     Bennett   v.    Bennett,    50  mont,  46  N.  J.  Eq.,  223.     Bennett 

N.  J.  Eq.,  439.  V.  Bennett,  50  N.  J.  Eq.,  439,  and 

^^22  N.  J.  L.,  117-141.  see  "Unequal  or  Unjust  Disposi- 

^Hn  re  Eatley's  Will,  82  N.  J.  tion     of     Property,"     page     168. 

Eq.,  591.    Kitchell  v.  Beach,  35  N.  supra. 


170  Probate  Law  and  Practice. 

of  extrinsic  testimony  required  to  prove  undue  influence  must 
increase  in  the  proportion  that  the  unreasonableness  of  the 
testamentary  act  diminishes.'''  But  where  the  beneficiary  in  a 
will  had  been  a  clerk  for  the  husband  of  the  testatrix,  and  had 
lived  in  the  family  for  a  number  of  years  and  had  become 
influential  in  domestic,  as  well  as  business  aft'airs,  subsequently 
becoming  a  partner  of  the  husband,  and,  after  his  death,  a  part- 
ner of  testatrix,  and  was  engaged  to  be  married  to  her,  her  will 
leaving  all  her  property  to  him  was  not  an  "inofficious"  instru- 
ment, ignoring  the  moral  claims  which  the  ties  of  kinship  sug- 
gest, but,  in  view  of  the  relations,  the  beneficiary's  years  of 
careful  devotion  to  the  business,  his  economical  management, 
and  the  fact  that  testatrix  had  no  children,  a  reasonable  one.''^ 
Inequality  or  even  injustice  towards  some  of  a  testator's  chil- 
dren in  the  amounts  given  to  them  by  the  will  does  not  prove 
undue  influence;^''  and  where  a  testatrix  left  nothing  to  the 
widow  and  children  of  a  deceased  son  (assigning  as  a  reason 
that  they  were  otherwise  amply  provided  for),  but  treated  her 
other  children  with  substantial  equality,  it  was  held  not  to 
show  undue  influence  on  the  part  of  her  son,  who  was  the 
executor.^**"  As  has  been  said  above,  the  existence  of  influence 
which  arises  from  unlawful  or  immoral  relations  bearing  on  a 
testator  when  his  will  is  made,  does  not  raise  a  presumption 
against  the  instrument,  but  will  be  regarded  as  a  significant 
fact,  which  calls  for  a  close  and  suspicious  scrutiny.^ 

ADMISSIBILITY  OF  EVIDENCE. 

Declarations  of  Testator, 

Where  undue  influence  is  set  up  in  impeachment  of  a  will, 
the  ground  of  invalidity  to  be  established  is  that  the  conduct 
of  others  has  so  operated  upon  the  testator's  mind  as  to  con- 
strain him  to  execute  an  instrument  to  which  of  his  free  will 

9^In  re  Willford's  Will,  51  Atl.  Eq..  436.     Affirmed,  2,7  N.  J.  Eq., 

Rep.    501.      In    re    Eatley's    Will,  629. 
82  N.  J.  Eq.,  591.  looBarker    v.    Streuli,    69    N.    J. 

'98in  re  Willford's  Will,  51  Atl.  Eq.,  771. 
Rep.,  501.  lArnault   v.   Arnault,    52    N.   J 

ss'Turnure  v.  Turnure,  35  N.  J.  Eq.,  801. 


Fraud  and  Undue  Influence.  171 

he  would  not  have  assented.  This  involves  two  things — first, 
the  conduct  of  those  by  whom  the  influence  is  said  to  have  been 
exerted ;  and  second,  the  mental  state  of  the  testator  as  pro- 
duced by  such  conduct,  which  may  require  an  exposition  of  the 
strength  of  mind  of  the  decedent  and  his  testamentary  pur- 
poses, both  immediately  before  the  conduct  complained  of  and 
while  subject  to  its  influence.  In  order  to  show  the  testator's 
mental  state  at  any  given  time,  his  declarations  at  that  time  are 
competent,  because  the  conditions  of  the  mind  are  revealed  to 
us  only  by  its  external  manifestations,  of  which  speech  is  one. 
Likewise  the  state  of  the  mind  at  one  time  is  competent  evi- 
dence of  its  state  at  other  times  not  too  remote,  because  men- 
tal conditions  have  some  degree  of  permanency.  Hence,  in  an 
inquiry  respecting  the  testator's  state  of  mind  before  or  pend- 
ing the  application  of  the  alleged  influence,  his  words,  as  well 
as  his  other  behavior,  may  be  shown  for  the  purpose  of  bring- 
ing into  view  the  mental  condition  which  produced  them,  and. 
through  that,  the  antecedent  and  subsequent  conditions.  To 
this  extent  his  declarations  have  probative  value ;  but  for  the 
purpose  of  proving  matters  not  related  to  his  existing  mental 
state,  the  assertions  of  the  testator  are  mere  hearsay.  They 
cannot  be  regarded  as  evidence  of  previous  occurrences,  unless 
they  come  within  the  recognized  exceptions  to  the  rule  exclud- 
ing hearsay  testimony.-  The  rule  is  well  settled  that,  on  an 
issue  whether  a  will  is  the  product  of  undue  influence,  the 
declarations  of  the  testator  respecting  previous  occurrences 
which  are  alleged  to  have  exerted  the  influence  are  not  evi- 
dence to  prove  or  disprove  such  occurrences  f  and  this  rule 
applies  to  declarations  of  a  testator  made  after  the  exectition  of 
the  will.* 


-Rusling    V.    Rusling,    36    N.    J.  47   N.  J.  Eq.,  349.     Mirldleditch  v. 

Eq.,    603.      Byrnes    v.    Gibson    68  Williams,  45   N.  J.  Eq.,   7-26.     In 

Atl.  Rep.,  756.  re  Anastasia  Davis,  73  N,  J.  Eq., 

2Boylan  ads.   Meeker,  28  N.  J.  617. 

L.,  274.     Kitchell  v.  Beach,  35  N.  ^Pemberton's    Case,    40    N.    J. 

J.  Eq.,  446.     Barker  v.  Barker,  36  Eq.,   520-528.     Affirmed,  41    N.  J. 

N.  J.  Eq.,  259.    Rusling  v.  Rusling,  Eq.,  349.    Kitchell  v.  Beach,  35  N. 

36   N.   J.    Eq.,    603.      Pemberton's  J.  Eq.,  446.    Gordon's  Case,  50  N. 

Case,  40  N.  J.  Eq.,  520.     Affirmed,  J.  Eq.,  397-425. 


172  Probate  Law  and  Practice. 

Diaries  kept  and  letters  written  by  a  testator,  either  before 
or  after  the  execution  of  the  will,  while  proper  evidence  as 
bearing  upon  the  mental  capacity  and  the  condition  of  the 
mind  of  the  testator  with  reference  to  the  objects  of  his  bounty, 
are  not  competent  evidence  of  the  facts  stated  in  them,  or  to 
prove  fraud  or  undue  influence.  They  may  be  given  in  evi- 
dence for  the  purpose  of  showing  his  relations  to  the  people 
around  him  and  the  persons  named  in  the  will  as  beneficiaries. 
They,  are,  however,  entitled  to  no  weight  in  proving  external 
facts,  either  as  to  fraud  or  undue  influence.^ 

Where  the  issue  is  whether  a  will  was  executed,  or  whether 
a  will  was  made  to  have  a  certain  tenor,  or  provision,  the  pre- 
existing design  of  the  alleged  testator  is  always  relevant  and  to 
evidence  the  existence  of  that  design,  his  antecedent  declara- 
tions are  admissible,  when  not  too  remote  to  be  material.  Such 
evidence  is  not  competent  as  a  declaration  or  narrative  to 
show  the  fact  of  fraud  or  undue  influence,  at  a  previous  period, 
but  is  admissible  not  only  to  show  retention  or  loss  of  memory, 
tenacity  or  vacillation  of  purpose  existing  at  the  date  of  the 
will,  but  also  in  proof  of  long  cherished  purposes,  settled  con- 
victions, deeply  rooted  feelings,  opinions,  affections  or  preju- 
dices, or  other  intrinsic  or  enduring  peculiarities  of  mind  in- 
consistent with  the  dispositons  made  in  the  instrument  at- 
tempted to  be  set  up  as  testator's  will.*^  So  evidence  that  the 
testator,  after  he  made  the  will  in  question,  denied  that  he  had 
made  a  will,  and  said  he  would  not  make  any,  but  would  leave 
his  children  to  share  equally  in  his  property,  while  it  is  compe- 
tent to  show  that  the  will  is  spurious  and  that  the  testator  had 
not  testamentary  capacity,  is  not  competent  to  show  undue  in- 
fluence ;^  and  so  declarations  of  testator  that  he  had  made  a 
will  and  remembered  certain  persons,  and  that  he  had  thought 
a  good  deal  about  making  the  will,  and  that  some  people  would 
not  be  satisfied,  were  admissible  to  show  that  he  was  aware  of 
the  contents  of  the  will  contested  on  the  ground  of  undue  in- 


»In  re  Cooper's  Case,  75  N.  J.  egtate  v.  Ready,  78  N.  J.  L.,  598. 

Eq.,  177.     Affirmed,  76  N.  J.  Eq.,  ^Barker  v.  Barker,  36  N.  J.  Eq., 

614.     Byrnes    v.    Gibson,    68    Atl.  259,  but  see  Boylan  ads.  Meeker, 

Rep.,  756.  28   N.  J.   L.,  274. 


Fraud  and  Undue  Influence.  173 

fliience.^    Declarations  made  at  the  time  the  instrument  is  exe- 
cuted are  admissible  as  part  of  the  res  gestae.^ 

Declarations  of  Third  Parties. 

Upon  the  issue  whether  a  will  is  forged,  the  circumstances 
attending  its  production  and  also  what  was  said  by  the  person 
having  the  custody  of  the  will  during  the  time  he  had  it  in 
possession  and  when  it  was  produced  for  probate,  showmg  a 
design  to  produce  or  prove  it  as  a  genuine  will,  are  competent 
evidence,  and  are  admissible,  not  on  the  ground  that  the  custo- 
dian is  a  subscribing  witness  to  the  will,  but  from  necessity, 
because  he  knows  its  origin  and  history.^" 

Testimony  as  to  Character  of  Deceased  Subscribing  Wit- 
nesses. 

On  a  charge  of  fraud  or  forgery,  the  declarations  and  the 
bad  character  of  a  deceased  subscribing  witness  are  admissible 
in  evidence  to  impugn  the  presumption  arising  from  the  wit- 
ness' attestation  and  signature,  but  standing  alone  and  unsup- 
ported are  not  sufficient  to  overcome  such  presumption.^^ 

Opinion  Evidence. 

Testimony  on  a  question  of  undue  influence,  which  is  but 
matter  of  opinion,  is  entitled  to  consideration  only  so  far  as  it 
is  sustained  by  facts.'-  The  opinion  of  a  witness,  whether  a 
subscribing  witness  or  not,  is  of  but  little  value  unless  he  can 
give  the  reasons  for  the  opinion  he  expresses  and  can  show  that 
he  had  opportunities  of  observation  to  justify  him  in  forming 
that  opinion. '■■^ 

Admissions  by  Legatee. 

Where  a  legatee  or  devisee  named  in  a  will  is  defending  the 
validity  of  the  instrument  under  which  he  claims,  his  admis- 
sions are  admissible  against  himself;  and  so  are  the  declara- 
tions of  one  in  privity  with  such  legatee  or  devisee.'* 

Hn  re  Cooper's  Will,  75  N.  J.  ^'Boylan  ads.  Meeker.  28  N.  J. 

Eq.,   177.     Affirmed,  76  N.  J.  Eq.,  L.,  274. 

614-  '2Moore    V.    Blauvelt,    15    X.   J. 

sBoylan  ads.   Meeker,   28  N.  J.  Eq.,  367. 

L.,  274.  i^Turner  v.  Cheesman,  15  N.  J. 

^'•Boylan  ads.  Meeker,  28  N.  J.  Eq.,  243-262. 

f-  ~7A-  "Myers  v.  Myers,  ()&  Atl.  Rep., 

82. 


CHAPTER  XL 

RE-PUBLICATION  OF  WILL  BY  EXECUTION  OF 

CODICIL. 

In  General. 

It  was  very  early  determined  that  the  valid  execution  of  a 
codicil  would  operate  as  a  constructive  re-execution  of  an  ex- 
isting will,  though  the  testator,  in  the  codicil,  did  not  in  express 
terms  ratify  or  confirm  the  will.  The  presumption  of  an  inten- 
tion to  re-publish  or  re-execute  a  will  arising  from  the  subse- 
quent execution  of  a  codicil  not  referring  to  it,  is,  however, 
never  conclusive,  and  may  be  rebutted  by  the  character  of  the 
disposition  made  by  the  codicil/ 

Effect  of  Re-Publication. 

Publication  of  a  codicil  is  a  re-publication  of  the  original 
will  in  the  form  it  was  at  the  time  of  the  execution  of  the 
codicil,  and  proof  of  the  execution  of  the  codicil  establishes  the 
will  in  the  form  in  which  it  existed  at  the  time  of  the  execution 
of  the  codicil ;'  and  so  where  testator,  after  duly  executing 
his  will,  tore  oflf  the  first  sheet,  and  substituted  another  which 
he  attached  to  the  remaining  sheets  composing  his  will,  and 
afterwards  executed  a  codicil  to  his  will,  it  was  held  that  the 
execution  of  the  codicil  amounted  to  a  re-publication  of  the 
will  with  the  substituted  sheet  annexed.^ 

In  the  case  of  Shazv  v.  Camp*  it  was  held  that  an  unsigned, 
unattested  sheet  making  an  additional  bequest,  attached  to  a 
will  after  its  execution,  is  made  effective  as  part  of  the  will 

^Woerner     on     Administration,  on  Wills,  sec.  216.    Haven  v.  Fos- 

86.      Underwood    on    Wills,    sec.  ter,    14    Pick.,    534.      Hubbard    v. 

216.    Jarman  on  Wills,  157.   Hav-  Hubbard,  108  111.,  621.     64  N.  E., 

en  V.  Foster,  14  Pick.  (31  Mass.),  1038.    In  re  Runkle,  2,7  N.  J.  L.  J., 

534.     Kip  V.  VanCortland,  7  Hill.  325.    Affirmed  in  unreported  opin- 

347.     In  re  Runkle,  37  N.  J.  L.  J.,  ion. 

325.    Affirmed  in  unreported  opin-  Hn   re  Runkle,  2>7  N.  J.  L.  J., 

•o"-  3^5-    Affirmed  in  unreported  opin- 

^i  Woerner  on  Adm.,  86.     Jar-  ion. 

man   on   Wills,    191.     Underwood  4163   HI-    144,  45   N.   E.,  211. 

174 


Re-Pubucation  of  Wills.  175 

by  a  subsequent  codicil  duly  executed  and  attested,  attached 
thereto.  In  Matter  of  Campbell,^  testator  duly  executed  his 
will,  and  thereafter  executed  a  second  will,  wherein  all  wills 
previously  made  by  him  were  expressly  revoked  ;  later  he  made 
a  codicil  to  his  first  will,  wherein  no  reference  was  made  to  the 
later  will,  and  it  was  held  that  the  effect  of  the  codicil  was  to 
revive  and  re-publish  the  earlier  will  as  of  the  date  of  the  codi- 
cil, so  that  the  codicil  and  the  earlier  will  constituted  the  final 
testamentary  disposition  of  the  testator.  The  same  result  was 
reached  in  the  cases  of  Blackett  v.  Ziegler,^  Appeal  of  Neff,'' 
and  In  re  Knapp's  JVill,^  and  by  the  great  weight  of  authority, 
it  is  held  that  a  duly  executed  codicil,  attached  to  or  referring 
to  a  paper  which  was  never  duly  signed  or  published  as  a  will, 
amounts  to  a  re-publication  of  the  paper  in  question,  and  has 
the  effect  of  giving  operation  to  the  whole  as  one  will  f  and  so 
if  a  testator  makes  his  will  while  non  compos  and  afterwards 
recovers  his  understanding  and  executes  a  codicil  to  the  will, 
the  execution  of  the  codicil  re-publishes  the  will.^** 

Annexation  of  Codicil  to  Will  Unnecessary. 

A  codicil  need  not  be  actually  annexed  to  the  will,  in  order 
to  have  it  operate  as  a  re-publication.^^  A  codicil  revives  the 
will  by  incorporating  it  with  itself  and  becoming  a  part  of  it. 
The  acknowledgment  of  the  former  will  must  appear  by  some 
reference  to  it  in  the  later  duly  executed  writing,  but  the  re-pub- 
lished will  need  not  be  present  when  the  codicil  is  executed, 
and  no  intention  to  re-publish  it  need  appear  to  exist,  whether 
the  codicil  is  written  on  the  same  or  on  another  paper.  The 
fact  that  the  later  paper  refers  to  the  former  as  a  will,  or  pur- 
ports to  be  a  codicil  to  it,  raises  a  presumption  of  intention  to 

5170  N.  Y.,  84,  62  N.  E.,  1070.  N.  J.  L.  J.,  325-337.     Affirmed  in 

^133  N.  W.,   (Iowa),  901.  unreported  opinion. 

M8  Pa.,  501.  "In  re  Runkle,  37  N.  J.  L.  J., 

*23  N.  Y.  Sup.,  282.  325-327.     Affirmed    in    unreported 

^Beall   V.   Cunningham,   42   Ky.,  opinion. 

390,  39  Am.  Dec,  469.     Stover  v.  ^^Van  Cortlandt  v.  Kip,  i  Hill, 

Kendall,    41    Tenn.,    557.      In    re  591.      i    Wocrner    on    Admn.,   86. 

Kelly's   Estate,   84  Atl.   Rep.,   593  Rood  on   Wills,  sec.  395.     i   Un- 

(Pa.).    Anderson  v.  Anderson,  L.  derwood  on  Wills,  ser.  295. 
R.,  13  Eq.,  381.     In  re  Runkle,  37 

13 


176  Probate  Law  and  Practice. 

re-publish,  which  can  be  avoided  only  by  a  contrary  intent 
appearing  on  the  face  of  the  later  writing.^- 

Prior  to  the  Runkle  case/^  the  only  New  Jersey  case  in 
which  this  subject  appears  to  have  been  considered  was 
McCurdy  v.  Ncall?^  In  this  case,  testator's  will,  to  which 
he  had  attached  a  codicil,  was  attacked  on  the  ground  that  it 
had  not  been  executed  in  conformity  with  the  statute.  After 
reviewing  the  evidence  and  finding  a  valid  execution  of  the 
will,  the  ordinary  (Runyon)  said,  "But  further,  it  cannot  be 
denied  that  the  codicil  was  executed  with  all  due  formalities. 
It  is  proved  to  have  been  so  executed.  It  expressly  confirms 
the  will,  so  far  as  the  codicil  is  consistent  with  it,  and  is  there- 
fore a  re-publication  of  the  will  itself,  supplying  all  omissions 
and  remedying  all  defects,  if  any,  in  the  execution  of  the 
latter." 

No  particular  words  are  necessary  to  be  used  in  a  codicil  to 
effect  a  re-publication  of  the  will  to  which  it  is  annexed.  It  is 
only  necessary  that  it  shall  appear  that  the  testator  referred  to 
and  considered  the  paper  as  his  will  at  the  time  he  executed  the 
codicil. ^^ 

i2Rood  on  Wills,  sec.  395.  i^Qorj-  y    Porter,  2,2>  Grat..  278 

1337  N.  J.  L.  J.,  325-  (Va.). 

"42  N.  J.  Eq.,  333- 


CHAPTER  XIT. 

REVOCATION  OF  WILLS. 

REVOCATION   BY   TESTATOR'S   ACT. 

In  General. 

As  has  already  been  seen.^  revocability  is  an  inlierent  and 
essential  element  of  a  will,  without  which  the  instrument  in 
question  cannot  properly  be  classed  as  a  will.  In  New  Jersey, 
the  method  by  which  a  testator  may  revoke  his  will  is  pre- 
scribed by  the  statute,  which  provides  that  no  devise  or 
Ijequest  in  writing-,  of  any  lands,  tenements,  hereditaments  or 
other  estates  whatsoever  in  this  state,  or  of  any  estate  per 
autre  vie,  or  any  clause  thereof,  shall  be  revocable,  otherwise 
than  by  some  other  will  or  codicil  in  writing,  or  other  writing 
declaring  the  same,  or  by  burning,  cancelling,  tearing  or  oblit- 
erating the  same  by  the  testator  himself,  or  in  his  presence,  and 
by  his  direction  and  consent :  but  all  devises  and  bequests  of 
any  lands,  tenements,  hereditaments,  or  other  estates  what- 
soever in  this  state,  or  of  any  estate  per  autre  vie,  shall  remain 
and  continue  in  force  until  the  same  be  burnt,  cancelled,  torn 
or  obliterated  by  the  testator  or  by  his  directions  in  manner 
aforesaid,  or  unless  the  same  be  revoked  or  altered  by  some 
other  will  or  codicil  in  writing,  or  other  writing  of  the  devisor 
signed  in  the  presence  of  three  or  more  subscribing  witnesses 
declaring  such  revocation  or  alteration.^  This  statute  was  later 
amended  so  as  to  provide  that  all  written  revocations  of  wills 
shall  be  executed  in  the  same  manner  as  wills  are  hereby 
required  to  be  executed,  and  when  so  made  shall  be  sufficient 
to  revoke  any  last  will,  or  any  part  thereof.^ 

Method  of  Revocation  in  General, 

The  method  of  revocation  is  entirely  statutory.  As  has  been 
seen  a  will  can  only  be  revoked  by  being  burned,  torn  or  oblit- 
erated by  the  testator  himself,  or  in  his  presence  and  by  his 

^See  p.  97,  supra.  ^4  Comp.  Stat.,  p.  5870,  sec.  25. 

24  Comp.   Stat.,  p.  5861,  sec.  2. 

177 


178  Probate  Law  and  Practice. 

direction  and  consent,  or  by  a  revocation  in  writing  executed 
in  the  same  manner  as  wills  are  required  to  be  executed  ;*  but 
any  mutilation  of  a  will  indicating  testator's  intent  to  revoke 
the  same  is  a  sufficient  revocation.  Thus  the  tearing  out  by 
the  testator  of  the  seal  affixed  to  a  will  and  of  part  of  his  signa- 
ture, and  the  obliteration  of  the  rest  of  his  name  and  of  the 
names  of  the  witnesses,  constitutes  cancellation  of  the  will.^ 
So  tearing  a  will  into  several  fragments  will  suffice,  though  the 
fragments  be  gathered  up  afterwards,**  and  so  a  memorandum 
in  the  margin  of  the  will,  opposite  each  cancelled  part,  in  the 
handwriting  of  the  testator  and  signed  with  his  name  or  initials, 
stating  that  he  wished  to  erase  that  part  constitutes  a  can- 
cellation thereof.^ 

Intention  to  Revoke. 

Revocation  involves  two  distinct  requisites ;  the  physical  act 
of  destruction,  and  the  intent  with  which  that  act  was  done. 
All  the  destroying  in  the  world,  without  intention,  will  not 
revoke  a  will,  nor  will  all  the  intention  in  the  world,  without 
destroying,  even  though  the  execution  of  that  intent  was  frus- 
trated by  the  most  glaring  f  raud.^  So  where  a  testator  asked 
his  wife  if  she  had  brought  his  will  from  its  place  of  deposit 
according  to  his  instructions,  at  the  same  time  informing  her 
that  he  wished  to  burn  it  up,  and  the  wife  replied  that  she  had 
burned  it  up,  it  was  held  that  this  did  not  amount  to  a  revoca- 
tion, the  will  not  having  been  burnt.''  So  proof  that  the  inten- 
tion to  destroy  a  will  was  frustrated  by  fraud,  even  though 
the  person  committing  the  fraud  may  have  been  the  beneficiary, 
will  not  prevent  the  probate  of  the  instrument,  if  regularly 
executed.  The  statute  has  pointed  out  the  modes  in  which  a 
will  may  be  revoked ;  and  a  mere  intention  to  perform  the  stat- 
utory act  of  revocation  is  not  a  performance  of  the  act  itself.^" 

^Boylan  v.  Meeker,  28  N.  J.  L.,  ^In  re  Kirkpatrick's  Will,  22  N. 

274.     Mundy  v.  Mundy,   15  N.  J.  J.  Eq.,  463-465. 

Eq.,  290.  ^Sickles'  Case,  63  N.  J.  Eq.,  233. 

^Smock  V.  Smock,  11  N.  J.  Eq.,  Affirmed,  64  N.  J.  Eq.,  791. 

156.     In   re  White,  25   N.  J.  Eq.,  ^Mundy  v.  Mundy,  15  N.  J.  Eq., 

501.  290. 

eSweet  v.  Sweet,  i  Redf.  (N.  Y.  I'^Sickles'    Case,    63    N.    J.    Eq., 

Sur.),  451-  233.     Affirmed,  64  N.  J.  Eq.,  791. 


Revocation  of  Wills.  179 

So  where,  testator  having  thrown  the  will  in  the  fire,  a  relative 
snatched  it  out,  and  then,  upon  the  request  of  the  testator  to 
deliver  it  back  to  him,  pretended  to  throw  it  in  the  fire,  but  did 
not  do  so,  the  will  was  held  to  be  unrevoked  and  entitled  to 
probate.^^  And  so  the  cancellation  of  a  will  by  mistake  or 
accident  will  not  render  the  will  invalid,  as  the  act  would  want 
the  animus  revocandi}- 

By  Whom  Act  May  Be  Performed. 

The  statute  provides  that  the  revocation  must  be  "by  the 
test^or  himself,  or  in  his  presence,  and  by  his  direction  and 

consent."^" 

Partial  Revocation. 

It  is  well  settled  that  cancellation  of  part  of  a  will  revokes 
the  legacies  cancelled,  but  does  not  afifect  the  residue  of  the 
will.^*  So  a  cancellation  of  a  legacy  by  the  testator  by  drawing 
lines  with  a  pen  through  the  words  is  a  sufficient  revocation. ^^ 
Where  it  appears  that  a  will  was  partially  cancelled  by  the 
testator,  the  will  should  be  probated  with  the  cancelled  parts 
omitted.^" 

There  has  been  some  discussion  in  the  courts  as  to  whether 
any  distinction  should  be  made  between  pencil  cancellations  and 
ink  cancellations  of  a  will  written  in  ink ;  and  numerous  cases 
will  be  found  holding  that  a  pencil  cancellation  either  in  whole 
or  in  part,  of  a  document  written  in  ink  must  be  considered  to 
be  prima  facie  deliberative,  rather  than  final,  while  cancella- 
tions in  ink  have  the  prima  facie  efifect  of  being  final  in  their 
character.  This  question  has,  however,  been  recently  settled 
in  this  state  by  the  establishment  of  the  rule  that  if  the  charac- 
ter of  the  pencil  erasure  clearly  indicates  an  intent  to  obliter- 
ate the  marked  portions,  it  is  prima  facie  as  effectual  as  though 
(lone  with  ink,  and  that  the  difference  in  the  material  used 

"Reed   v.  Harris,  6  Ad.  &  E.,  i-»Hilyard  v.  Wood,  71  N.  J.  Eq., 

209.     S.  C,  8  A.  D.  &  E.,  I.  214. 

i^Smock  V.  Smock,  11  N.  J.  Eq.,  '^In  re  Kirkpatrick,  22  N.  J.  Eq., 

156.  463. 

^34    Comp.    Stat.,    5861,    sec.    2.  i^Hilyard    v.    Wood,    71    N.    J. 

Mundy  v.   Mundy,    15   N.  J.   Eq.,  Eq.,  214. 
290. 


i8o  Probate  Law  and  Practice. 

creates  no  stronger  presumption  in  favor  of  one  method  than 
the  other.  It  is  the  intent  which  controls ;  and  in  the  absence 
of  any  evidence  other  than  the  paper  presented  for  probate, 
the  testator  must  be  presumed  to  have  intended  the  pencil 
erasures  to  be  as  final  as  if  done  with  ink.  The  manner  in 
which  the  erasure  is  made,  whether  with  ink  or  pencil,  its 
intent  and  its  effect  upon  other  uncancelled  portions  of  the  will, 
may  repel  the  presumption  of  finality ;  but  such  repellant  cir- 
cumstances apply  with  equal  force  to  ink  and  to  pencil  cancella- 
tions.^' So  pencil  marks  drawn  by  a  testator  through  certain 
clauses  of  his  will,  with  the  intent  at  the  time  to  revoke  such 
clauses,  will  have  that  effect  given  them,  notwithstanding  the 
subsequent  employment  of  the  instrument  so  cancelled  as  the 
text  from  which  a  fair  copy  was  to  be  made,  w^hich  copy  was 
never  executed  by  testator,  but  was  found  at  his  death  with  a 
pencil  line  drawn  through  the  first  page.^® 

In  some  jurisdictions  it  has  been  held  that  the  cancellation 
of  a  legacy  in  a  wall,  with  the  effect  of  increasing  the  residuary 
bequest,  in  efliect  amounts  to  creating  a  new  clause  in  the  wall, 
constituting  another  and  distinct  testamentary  disposition, 
which  must  be  authenticated  by  the  observance  of  the  statu- 
tory requirements  for  the  execution  of  wills ;  and  that  the 
attempted  revocation  is  therefore  ineffective.^^  In  this  state, 
however,  the  prerogative  court  has  held  that  the  method  of 
revocation  is  entirely  statutory,  and  that  so  long  as  it  is  the 
revocation  of  a  devise  or  bequest,  an  obliteration  for  such  pur- 
pose will  be  authorized  by  law  without  regard  to  its  effect  upon 
other  portions  of  the  wall,  even  though  such  obliteration  effects 
substantial  changes  in  the  w'ill.'° 

Time  To  Which  Question  of  Intent  Relates, 

In  the  case  of  partial  revocations,  there  is  but  one  point  of 
time  as  to  which  the  intent  of  the  testator  is  to  have  controlling 

i^Hilyard  v.  Wood,  71  N.  J.  Eq.,  "Miles   Appeal,   68   Conn.,   237. 

214.      Frothingham's  Case,  75  N.  36  Atl.  Rep.,  39.    36  L.  R.  A.,  176. 

J.   Eq.,   205.     Reversed,   76  N.   J.  Eschbach  v.  Collins,  61  Md.,  478. 

Eq.,  331-  2ocollard    v.    Collard,    67    Atl. 

isFrothingham's  Case,  76  N.  J.  Rep.,    190. 
Eq.,  331. 


Revocation  of  \\'ills.  i8i 

effect,  and  that  is  the  time  of  the  doing  of  the  very  act  that 
constitutes  such  revocation.-^ 

Conditional  Revocation. 

It  is  elementary  law  that  to  constitute  a  valid  revocation  or 
cancellation  of  the  whole  or  any  portion  of  a  will,  the  existence 
of  an  intent  to  so  revoke  or  cancel  is  indispensable,"  and  the 
intent  to  revoke  or  cancel  must  be  absolute  and  have  something 
more  than  a  conditional  existence;  there  must  be  an  intention 
to  revoke  at  all  events.     The  rule  is  well  settled  that  where 
interlineations  or  erasures  are  made  in  a  will,  with  the  expecta- 
tion that  the  will  in  its  altered  form  will  be  a  valid  will,  which 
expectation  fails  of  realization  because  the  alterations  have  not 
been  properly  attested,  such  alterations  will  not  affect  the  wnW, 
and  it  takes  eff'ect  regardless  of  the  changes.     An  alteration  of 
this  character  is  a  conditional  revocation,  sometimes  called  a 
dependent  relative  revocation.-     For  this  reason,  revocation  of 
part  of  a  will  has  been  denied,  and  the  will  admitted  to  probate 
as  originally  executed,  where  the  testator  had  erased  the  name 
of  one  executor  and  substituted  that  of  another.-*     The  rule 
likewise  applies  where  a  testator  has  so  entirely  erased  the  name 
of  a  legatee  that  it  is  no  longer  legible,  and  has  substituted 
another  name  for  it.     In  such  a  case,  the  court    will    receive 
evidence  to  show  what  the  original  name  was,  and  will  restore 
it  to  the  probate,  if  satisfied  that  the  testator  revoked  the  first 
bequest  only  on  the  supposition  that  he  had  effectually  supplied 
a  new  legatee.-' 

In  the  case  of  In  Re  Penniman,-^  where  there  were  interline- 
ations and  erasures  in  a  will,  and  upon  the  margin  of  the  attest- 
ation clause  there  were  written  in  the  handwriting  of  the  test- 
ator the  words:  "The  erasures  and  interlineations  made  by 
William  A.  Penniman  this  the  2Tst  day  of  August,  1871,  and 

2iFrothingham's  Case,  76  N.  J.  Prob.  N.  S.,  70,  6  Jur.  N.  S.,  56. 

Eq.,  331.  25Matter  of  McCabe,  L.  R.,  3  P- 

22Sickles'  Case,  63  N.  J.  Eq.,  233.  &    D.,    94.      Brooke    v.    Kent,    3 

Affirmed,  64  N.  J.  Eq..  79i-  Moore,   P.  C,  334-     U  Eng.  Re- 

"In  re  Frotliingham's  Will,  76  print,    136.     In   re   Runklcs'   Will, 

N.  J.  Eq.,  331.  37  N.  J.   L.  J.,  325-     Affirmed  in 

^♦Harris's  Goods,    i    Swabey  &  unreported    opinion. 

T.,  536.     Parr's  Goods,  29  L.  J.,  ^620  Minn.,  245. 


i82  Probate  Law  and  Practice. 

witnessed  by  J.  K.  Sidle  and  H.  G.  Sidle,"  which  writing  was 
signed  by  the  two  witnesses,  it  was  held  that  where  a  portion 
of  a  will  was  cancelled  with  a  view  to  a  new  disposition  of  the 
property,  and  the  proposed  disposition  failed  to  be  carried  into 
effect,  the  presumption  in  favor  of  revocation  by  the  cancelling 
would  be  repelled,  and  the  will  would  stand  as  originally 
framed.  And  the  decisions  in  Wolf  v.  Bollinger,^'  and  Mcln- 
tyre  v.  Mclntyre,-^  were  to  the  same  effect.  So  in  Thomas  v. 
Thomas,-^  it  was  held  that  where  a  part  of  a  will  was  cancelled 
or  erased  by  the  testator  with  a  view  to  a  new  disposition  of 
the  property,  and  the  new  disposition  failed  to  be  carried  into 
effect  for  want  of  authentication,  the  presumption  in  favor  of 
revocation  by  the  cancellation  or  erasure  would  be  repelled,  and 
the  will  as  originally  executed  would  stand  as  far  as  it  was 
practicable  to  ascertain  what  the  original  words  were ;  in  such 
a  case,  the  supposed  revocation  would  be  deemed  to  have  been 
conditional,  and  dependent  upon  the  efficacy  of  the  new  dis- 
position intended  to  be  substituted.  So  where  the  testator 
erased  the  name  of  a  legatee  and  inserted  that  of  another."'^ 
So  where  the  testator  tore  out  a  page  of  his  will  containing  a 
certain  bequest  and  devise  and  a  gift  of  a  contingent  remainder 
to  his  brother  and  sister,  and  had  it  re-written,  omitting  the 
name  of  his  sister  as  a  contingent  remainderman,  with  the 
intention  of  revoking  the  devise  to  her  only."*^ 

Revocation  By  Subsequent  Will  or  Codicil. 

It  is  a  principle,  as  ancient  as  it  is  familiar,  that  no  man  can 
have  two  wills.  The  last  will  is  of  necessity  a  revocation  of  all 
former  wills,  so  far  as  it  is  inconsistent  with  them.  So  if  one 
having  made  his  will  afterwards  make  another  will  or  codicil 
inconsistent  therewith,  but  not  expressly  revoking  it,  the  execu- 
tion of  this  instrument  will  nevertheless  operate  as  a  revocation 
of  the  earlier  will ;  but  this  implied  revocation  has  effect  only 

=  '62  111.,  368.  W.   104;   AlcCabe's  Goods,   L.   R. 

28x20  Ga.,  67,  102  Am.  St.  Rep.,  3  Prob.  &  Div..  94,  42  L.  J.,  Prob. 

71,  47  S.  E.,  501.  N.   S.,  79,  29  L.  T.  N.   S.,  249; 

2976  Minn.,  237,  77  Am.  St.  Rep.,  Wolf    v.    Bollinger,    62    111.,    368. 

639,  79  N.  W.,  104.  Reeve's  Goods,  13  Jur.,  370. 

soThomas  v.  Thomas,  76  Minn.,  ^lyarnon    v.    Varnon,    67    Mo. 

237,  yy  Am.  St.  Rep.,  639,  79  N.  App.,  534. 


Revocation  of  \\*ills.  183 

when  the  last  will  is  inconsistent  with  the  former,  for  it  may  be 
a  will  of  different  goods,  or  different  pieces  of  land,  so  that  the 
two  may  be  taken  conjointly  as  the  will  of  the  testator.  On 
the  other  hand,  if  the  later  will  contains  an  express  revocation 
of  the  earlier,  it  is  immaterial  whether  the  latter  be  or  be  not 
inconsistent  with  the  former.  It  is  nndoubtedly  true  that  the 
revocation  clause  is  not  always  imperative,  and  that  its  effect 
depends  upon  the  intention  of  the  testator ;  but  that  intention 
must  in  every  case  be  gathered  from  the  contents  of  the  instru- 
ments themselves.  Patrol  testimony  is  inadmissible  for  this 
purpose.  It  is  never  admissible  to  contradict  by  parol  the  terms 
of  a  will,  or  to  overturn  its  plain  provisions. ^- 

It  is,  however,  an  established  rule  not  to  disturb  the  disposi- 
tion of  the  earlier  will  further  than  is  necessary  for  the  purpose 
of  giving  effect  to  the  later  codicil  or  w'ill  f'-^  but,  as  has  been 
seen,  if  the  later  will  contain  an  express  revocation  of  all 
former  wills,  it  is  immaterial  whether  the  latter  be  or  be  not 
inconsistent  with  the  former,  and  such  revocation  will  extend 
to  codicils  and  all  other  testamentary  writings.^*  A  subsequent 
will  may  be  contingent  on  the  happening  of  a  certain  event ; 
and  if  such  event  does  not  come  to  pass,  the  first  will  wall 
remain  in  full  force  and  effect. ^^ 

Where  two  wills  of  the  same  testator  are  found,  the  will  of 
earlier  date  will  remain  uncancelled  and  unrevoked,  if  the  one 
of  later  date  is  not  duly  executed,  or  is  declared  invalid  or 
void.^® 

Revival  of  Prior  Will  by  Revocation  of  Later. 

The  destruction  or  cancellation  of  a  later  will  containing  an 
express  revocation  of  a  former  will  does  not  revive  the  prior 
will,  unless  it  affirmatively  appears  that  the  later  will  was 
revoked  by  the  testator  with  intent  to  revive  the  prior  will.^^ 

32Smith  V.  McChesney,  15  N.  J.  ^cBoylan  v.  Aleeker,  28  N.  J.  L., 

Eq.,  359.    Snowhill  v.  Snowhill,  23  274. 

N.  J.  L.,  447-  3^Moore's    Case,   72   N.   J.    Eq., 

33Snowhill  V.  Snowhill,  23  N.  J.  371,     distinguishing     Randall     v. 

L.,   447-454-  Beatty,  31   N.  J.  Eq.,  643.     In  re 

3*Smith  V.  McChesney,  15  N.  J.  Diament's    Estate,    92    At).    Rep., 

Eq-,  359-  952. 

^^Cowley  V.  Knapp,  42  N.  J.  L., 
297. 


i84  Probate  Law  and  Practice. 

But  where  it  appeared  that  the  decedent  whose  testamentary 
disposition  was  in  question  died,  leaving  a  will  executed  in 
1870,  and  in  1873  had  executed  another  will  containing  a  revo- 
catory clause,  which  will  of  1873  was  afterwards  cancelled, 
and  decedent  had  retained  the  will  of  1870  in  her  possession, 
and  after  her  death  it  was  found  with  her  valuable  papers,  it 
was  held,  from  the  circumstances  surrounding  the  transaction, 
that  the  will  of  1873  did  not  revoke  that  of  1870,  because  the 
revocatory  clause  was  testamentary  in  character,  and  its  can- 
cellation revived  the  former  will  retained  by  her."**  And 
so,  in  order  that  the  revocation  of  a  later  will  shall  operate  to 
revive  an  earlier  will,  it  must  appear,  from  the  circumstances 
surrounding  the  transaction,  that  the  testator  intended  to  revive 
such  earlier  will.^^ 

If  a  prior  will  be  revoked  by  a  subsequent  one,  and  both  be 
improperly  destroyed,  the  contents  of  the  first  will  cannot  be 
established  as  the  testator's  will,  although  the  contents  of  the 
second  cannot  be  ascertained.**' 

EVIDENCE. 

Of  Revocation  of  Will. 

Where  a  will  appears  to  have  been  delivered  to  the  testator 
immediately  upon  its  execution,  and,  so  far  as  appears,  was 
never  out  of  his  possession,  nor  seen  by  any  other  person  until 
his  death,  when  it  was  found  with  testator's  other  papers ; 
under  such  circumstances,  if  the  will  be  found  cancelled  in 
whole  or  in  part,  the  presumption  is  that  the  alterations  were 
the  acts  of  the  testator  done  anitno  cancellandi.*^  This  pre- 
sumption is,  however,  rebuttable.*-  So  where  a  will  was  found 
in  the  possession  of  the  testator  with  the  seals  and  signatures 

38Randall    v.    Beatty,    31    N.    J.  White,  25  N.  J.  Eq.,  501.    Hilyard 

Eq.,  643.     In  re  Diament's  Estate,  v.  Wood,  71  N.  J.  Eq.,  214.    Hol- 

92  Atl.  Rep.,  952.  combe  v.  Holcombe,  39  N.  J.  Eq., 

39Moore's    Case,   72   N.   J.   Eq.,  592.    In  re  Willitt's  Estate,  46  Atl. 

371-  Rep.,  519. 

*oDay  V.  Day,  3  N.  J.  Eq.,  549-  *-In  re  Willitt's  Estate,  46  Atl. 

41  Smock  V.  Smock,  11  N.  J.  Eq.,  Rep.,  519.    In  re  Diament's  Estate, 

156.     In  re  Kirkpatrick's  Will,  22  92  Atl.  Rep.,  952. 
N.    J.    Eq.,   463-      In    re    Will    of 


Revocation  of  \A'ills.  185 

torn  off,  or  otherwise  cancelled,  it  will  be  presumed  that  the 
cancellation  was  the  act  of  the  testator  done  animo  canccl- 
huidi;*'^  and  memoranda  in  the  margin  of  the  will,  one  opposite 
each  cancelled  part,  in  the  handwriting  of  the  testator,  and 
signed  with  his  name,  or  initials,  stating  that  he  wished  to  erase 
those  parts,  are  evidence  that  the  cancelling  was  the  testator's 
act,^*  and  so  a  general  allusion  in  a  letter  found  in  the  same 
box  with  testator's  will,  and  a  conversation  with  the  executor 
therein  named  shortly  before  testator's  death,  in  reference  to 
a  bequest  made  by  the  will  and  which  was  then  known  by  the 
executor,  are  too  loose  and  uncertain  to  establish  the  will  con- 
trary to  the  cancellation  by  the  testator.*^ 

So  where  a  person  having  no  special  interest  to  justify  his 
asking  the  question  asked  the  decedent  some  eight  or  ten  days 
before  his  death  :  "Where  his  will  was,"  and  "If  it  was  all 
right,"  to  which  decedent  answered  that  "it  was  in  his  desk 
and  was  all  right,"  and  after  the  death  of  testator  the  will  was 
found  in  his  desk  cancelled,  it  was  held  that  this  declaration 
was  insufficient  to  rebut  the  presumption  of  cancellation.^'^ 

Of  Alteration  of  Will. 

Text  writers  seem  to  agree  that,  where  a  will  is  produced 
for  probate,  upon  inspection  of  which  there  is  disclosed  a  man- 
ifest alteration  which  is  unnoted,  the  presumption  is  that  such 
alteration  was  made  after  execution.*'  Nevertheless,  assum- 
ing that  such  apparent  unnoted  alterations  raise  a  presumption 
that  they  were  made  after  execution,  such  presumption  may  be 
overcome  by  competent  and  sufficient  evidence  that  they  were 
made  before  execution.*^  So  where  an  instrument  offered  for 
probate  as  a  will  was  drawn  by  a  family  friend  from  instruc- 
tions of  testator,  and  a  typewritten  copy  had  been  sent  to  him, 
which  testator  copied  in  his  own  handwriting,  and  when  his 

"Smock  V.  Smock,  11  N.  J.  Eq.,  ^"Schouler  on  Wills,  435.     Un- 

156.     In  re  White,  25  N.  J.  Eq.,  derhill   on   Wills,   268.     Paige  on 

501.  Wills,  432.     Ward  v.  Wilcox.  64 

^^n  re  Kirkpatrick  Will.  22  N.  N.  J.  Eq.,  303-    Affirmed.  65  N.  J. 

J.  Eq.,  463,  465-  Eq.,  397- 

"In  re  White,  25  N.  J.  Eq.,  501.  "Ward  v.  Wilcox,  64  N.  J.  Eq.. 

^'■■Smock  V.  Smock,  11  N.  J.  Eq.,  303-  Affirmed.  65  N.  J.  Eq.,  397- 
156. 


i86  Probate  Law  and  Practice. 

legal  adviser  attended  to  witness  the  execution  of  the  will,  tes- 
tator informed  him  that  he  had  increased  the  amount  of  a  cer- 
tain bequest,  giving  his  reasons  therefor,  and  the  instrument 
showed  an  unnoted  alteration,  it  was  held  sufficient  to  over- 
come any  presumption  that  the  alteration  was  made  after  the 
execution.*'' 

Declarations  of  Testator. 

Upon  the  issue  as  to  whether  alterations  appearing  upon  the 
face  of  a  will  were  made  before  or  after  execution  thereof, 
declarations  of  a  testator  made  shortly  before  the  execution 
of  the  will  are  admissible  in  evidence.^** 

REVOCATION  BY  OPERATION  OF  LAW. 

Total  Revocation  by  Birth  of  Issue. 

Every  last  will  and  testament  made  when  the  testator  had  no 
issue  living,  wherein  any  issue  he  might  have  is  not  provided 
for  or  mentioned,  if  at  the  time  of  his  death  he  leave  a  child, 
children  or  issue,  or  leave  his  wife,  enceinte  of  a  child  or  chil- 
dren which  shall  be  born,  such  will  shall  be  void,  and  such 
testator  be  deemed  to  die  intestate.^^ 

Partial  Revocation  by  Birth  of  Issue. 

If  a  testator  having  a  child  or  children,  born  at  the  time  of 
making  and  publishing  his  last  will  and  testament,  shall  at  his 
death,  leave  a  child  or  children,  born  after  the  making  and 
publishing  of  his  said  last  will  and  testament,  or  any  descend- 
ant or  descendants  of  such  after-born  child  or  children,  the 
child  or  children  so  after-born,  or  their  descendant  or  descend- 
ants respectively,  if  neither  provided  for  by  settlement  nor 
disinherited  by  the  said  testator,  shall  succeed  to  the  same  por- 
tion of  the  father's  estate,  as  such  child  or  children  or  descend- 
ants as  aforesaid  would  have  been  entitled  to,  if  the  father  had 

*nVard  V.  Wilcox,  64  N.  J.  Eq.,  In  re  White,  25  N.  J.  Eq.,  501. 

303.     Affirmed,  65  N.  J.  Eq.,  397-  ^M   Comp.    Stat.,   5865,   sec.   20. 

soWard  v.  Wilcox,  64  N.  J.  Eq.,  Coudert  v.  Coudert,  43  N.  J.  Eq., 

303.     Affirmed,  65  N.  J.  Eq.,  397.  407. 
Smock  V.  Smock,  11  N.  J.  Eq.,  156. 


Revocation  of  Wills.  187 

died  intestate ;  towards  raising  which  portion,  or  portions,  the 
devisees  and  legatees  or  their  representatives,  shall  contribute 
proportionably  out  of  the  part  devised  and  bequeathed  to  them 
by  the  same  will  and  testament.''-  That  is,  if  testator  has  chil- 
dren living  when  he  makes  his  will  in  which  he  made  no  pro- 
vision for  after-born  children,  and  after  his  death  another  child 
is  born,  the  legatees  named  in  the  will  must  severally  contribute 
such  portions  of  their  legacies  as  will  make  the  share  of  such 
child  equal  to  what  it  would  have  been  had  testator  died  intes- 
tate; otherwise  the  provisions  of  the  will  will  not  be  dis- 
turbed."^ So  where  a  testator  gave  his  son  a  specific  legacy, 
with  a  residuary  legacy  to  his  wife,  and  there  were  children 
born  after  the  making  of  the  will,  no  commissions  for  settling 
the  estate  could  be  added  to  the  amount  deducted  from  the 
son's  legacy  as  the  portion  of  the  after-born  child,  but  they 
must  come  out  of  the  residue  of  the  estate. ^^ 

The  statute  applies  to  a  posthumous  child,^^  but  a  provision 
for  children  who  may  be  born  after  the  making  of  the  will  will 
prevent  the  operation  of  the  statute.''"' 

Revocation  by  Marriage. 

The  marriage  of  a  woman  does  not  revoke  her  will,  executed 
Ijefore  such  marriage.'^   Otherwise,  however,  at  common  law.^* 

524  Comp.  Stat.,  5865,  sec.  21.  scstevens  v.   Shippen,  28  N.  J. 

33Wilson  V.  Fritts,  32  N.  J.  Eq.,  Eq.,  487.     Affirmed,  29  N.  J.  Eq., 

59.     Van  Wickle  v.  Van  Wickle,  602. 

59  N.  J.  Eq.,  317.     Lutjen  v.  Lut-  57\Vebb  v.  Jones,  36  N.  J.  Eq., 

jen,  63  N.  J.  Eq.,  39i-     Reversed,  163. 

64  N.  J.  Eq.,  773.  ^^i   Jarman   on  Wills,    no,  and 

s^Lutjen  V.  Lutjen,  63  N.  J.  Eq.,  see  note  to  Webb  v.  Jones,  36  N. 

391.     Reversed,  64  N.  J.  Eq.,  773-  J-  Eq.,  163,  at  page  164. 

55Van  Wickle  v.  Van  Wickle,  59 
N.  J.  Eq.,  317- 


CHAPTER  XIII. 

PROBATE  OF  WILLS. 

Nature  of  Proceedings. 

A  proceeding  for  the  probate  of  a  will  is  not  a  civil  action, 
but  a  judicial  inquiry  to  ascertain  whether  the  instrument  pro- 
pounded for  probate  is  the  last  will  and  testament  of  the 
decedent.  Such  proceedings,  so  far  as  the  personal  esta'te  is 
concerned  are  in  rem,  in  the  strict  sense  of  that  term.^  For 
this  reason,  and  for  the  further  reason  that  courts  invested 
with  jurisdiction  over  probate  proceedings  have  general  power 
to  check  and  revise  such  proceedings  when  tainted  with  mis- 
take, fraud  or  illegality,  a  court  of  equity  will  not  entertain 
jurisdiction  to  set  aside  a  will,  or  the  probate  thereof,  nor  can 
that  court  review  the  proceedings  of  the  orphans'  court,  revoke 
the  probate,  or  decree  intestacy. - 

Necessity  for  Probate. 

The  probate  of  a  will  is  the  judicial  determination  of  its 
character  and  validity  as  such ;  until  it  has  been  duly  admitted 
to  probate,  a  will  is  wholly  ineffectual  as  an  instrument  of  title. 
An  unprobated  will  is,  however,  capable  of  conveying  an  inter- 
est in  property  devised ;  and  if  a  conveyance  be  made  under  a 
power  in  the  will,  before  probate,  subsequent  probate  will 
validate  the  conveyance.^ 

An  executor  derives  his  power  from  the  will  and  not  from 
its  probate,  and  may  receive  and  dispose  of  the  personal  estate 
of  the  testator  before  probate.  It  is  only  in  order  to  assert 
his  right  to  sue  as  executor  that  he  must  first  probate  the  will.^ 

iMackin  v.  Mackin,  37  N.  J.  Eq.,  -Vincent    v.    Vincent,    70    N.    J. 

528.     Grant  v.  Stamler,  68  N.  J.  Eq.,  272.     In  re  Whitehead's  Es- 

Eq.,    559-      In     re     McLaughlin's  tate,  94  Atl.  Rep.,  796. 

Will,    59    Atl.    Rep..    469.      In    re  sMackey   v.    Mackey,    71    N.    T. 

Veazey's  Will,  80  N.  J.  Eq.,  466.  Eq.,  686. 

Quidort  V.  Pergeaux,  18  N.  J.  Eq.,  ^Thiefes  v.  Mason,  55  N.  J.  Eq., 

472.  456. 


Probate  of  Wills.  189 

Duty  to  Produce  Will  for  Probate. 

It  is  the  duty  of  the  executor  to  produce  the  will  before  the 
surrogate  for  probate,  althougli  any  person  who  will  be  bene- 
fited by  the  probate  of  the  will  may  present  it  or  require  it  to 
be  presented  for  probate.^  The  statute  provides  that  if  an 
executor  shall  neglect  for  the  space  of  forty  days  after  the 
death  of  the  testator  to  prove  the  will,  then  administration  with 
the  will  annexed  shall  be  granted  to  the  persons  entitled  there- 
to." This  act,  if  read  literally,  requires  the  executor  to  prove 
the  will  within  forty  days.  It  has  been  held,  however,  that  it 
does  not  deprive  an  executor  of  the  right  to  present  a  will  for 
probate  after  the  expiration  of  forty  days,  if  no  application  for 
administration  with  the  will  annexed  has  been  made  after  the 
forty  days  have  elapsed  and  before  such  application  for  pro- 
bate.'^ 

The  statute  also  provides  that  whenever  application  shall  be 
made  to  the  orphans'  court  of  any  county  of  this  state,  by  any 
person  in  interest,  alleging  that  he  believes  that  any  person  or 
corporation  has  in  his,  her  or  its  possession,  or  has  knowledge 
of  the  existence  or  whereabouts  of  any  paper  writing  purport- 
ing to  be  the  last  will  and  testament  of  any  decedent,  who  dur- 
ing his  lifetime  was  a  resident  of  the  county  wherein  such 
application  may  be  made,  and  further  alleging  that  the  person, 
in  whose  possession  such  paper  writing  is  alleged  to  be,  refuses 
or  neglects  to  produce  the  same  to  the  surrogate  of  such  county 
^for  probate,  the  court  may,  by  order,  require  such  person  to 
appear  before  it  and  make  discovery  as  to  his  possession  of  or 
knowledge  of  the  existence  or  whereabouts  of  any  paper  writ- 
ing purporting  to  be  the  last  will  and  testament  of  any  decedent 
who  during  his  lifetime  was  a  resident  of  the  county  wherein 
such  application  may  be  made,  by  the  examination  of  such  per- 
son and  other  witnesses,  and  may  order  any  such  person  having 
in  his  possession  any  paper  writing  purporting  to  be  the  last 
will  and  testament  of  a  decedent  a  resident  in  such  county  dur- 
ing his  lifetime,  to  lodge  the  same  with  the  surrogate  of  the 

^'Myer's  Case,  69  N.  J.  Eq.,  793-  ^Orphans'  Court  Act.  sec.  27,  p. 

799.  270,  infra. 

^Acker's  Case,  70  N.  J.  Eq..  669. 


I90  Probate  Law  and  Practice. 

said  county  for  probate,  and  may  compel  obedience  to  such 
order  or  decree  by  the  same  process  and  in  the  same  manner 
as  orders  or  decrees  of  the  court  of  chancery  are  enforced.^ 

The  prerogative  court  has  power,  at  the  instance  of  a  party 
in  interest,  to  issue  a  citation  to  a  person  having  custody 
of  a  will  to  produce  it  for  the  purpose  of  probate;  and  a  cita- 
tion will  issue,  under  such  circumstances,  to  an  attorney  having 
the  custody  of  a  will,  although  he  claims  a  lien  upon  it  for 
services.^ 

The  Crimes  Act"'  makes  it  a  misdemeanor  to  steal,  destroy, 
cancel  or  conceal  a  will  for  any  fraudulent  purpose. 

Probate  in  Solemn  and  Common  Form. 

There  are  two  methods  of  obtaining  probate  known  to  the 
practice  of  the  English  ecclesiastical  courts ;  one  in  common 
form  and  the  other  in  solemn  form,  or  per  testes.  The  proof 
is  said  to  be  in  common  form  when  the  executor  presents  the 
will  for  probate  in  the  absence  of  the  parties  to  be  affected 
thereby,  and,  without  citing  them,  proceeds  ex  parte  with  his 
proof ;  and  it  is  said  to  be  in  solemn  form  when  those  in  inter- 
est are  cited  to  be  present  at  the  probate  of  the  will.  Where  a 
will  is  proved  in  common  form,  the  court,  at  any  time  within 
thirty  years  after  probate,  might,  under  the  old  law,  on  its  own 
motion  or  at  the  instance  of  the  next  of  kin  or  other  person 
interested,  require  the  executor  to  prove  the  will  in  solemn 
form.^^ 

The  distinction  between  probate  of  wills  in  common  and  in" 
solemn  form,  while  recognized  in  the  practice  of  the  English 
courts  of  probate,  seems  not  to  have  attracted  much  attention 
•  from  the  courts  of  this  state  until  the  publication  of  the  opinion 
of  Chancellor  McGill,  sitting  as  Ordinary,  in  Strauh's  Case}- 
In  that  case,  a  will  had  been  admitted  to  probate  by  a  surro- 
gate, without  objection.  After  the  time  for  an  appeal  from 
the  surrogate's  act  had  expired,  the  orphans'  court,  upon  a 
petition  presented  to  it,  alleging  that  the  will  was  the  product 


sp.  L.  1911,  p.  96.  Ill  Williams  on  Executors,  271, 

^Braecher's  Case,  60  N.  J.  Eq.,  et  seq. 
350.     Affirmed,  ib.,  449.  12^9  N.  J.  Eq.,  264. 

i"2  Comp.   Stat..   1793,   sec.   161. 


Probate  of  Wills.  191 

of  fraud  and  undue  influence,  and  praying  that  the  surrogate's 
probate  should  be  set  aside,  allowed  an  order  to  show  cause 
why  the  prayer  of  the  petition  should  not  be  granted,  and  upon 
argument  discharged  that  order.  Upon  an  appeal  to  the 
Prerogative  Court  from  the  order  last  named,  the  Ordinary 
determined  that  the  orphans'  court  was  without  jurisdiction  to 
initiate  such  a  proceeding,  but  proceeded  to  express  his  opinion 
that  upon  an  application  to  the  surrogate,  although  made  after 
the  time  for  an  appeal  from  his  decree  had  expired,  the  surro- 
gate would  have  jurisdiction  to  cite  the  parties  interested  to  ap- 
pear before  the  orphans'  court,  which  court  would  have  juris- 
diction to  require  the  executor  to  prove  the  will  in  solemn  form. 
The  decision  of  the  Ordinary  in  that  case  was  affirmed  by  the 
Court  of  Errors  and  Appeals,  for  the  reasons  given  by  him.^' 
The  affirmance  by  the  Court  of  Errors  and  Appeals  of  the 
decision  of  the  Prerogative  Court  in  Straub's  Case  was  not, 
however,  intended  to  indicate  the  approval  of  the  opinion  of 
the  ordinary  respecting  the  jurisdiction  to  require  probate  in 
solemn  form,  as  was  shown  in  the  per  curiam  opinion  shortly 
afterward  delivered  in  Gordon  v.  Olds}^  Afterward  the  opin- 
ion expressed  by  the  Ordinary  respecting  the  jurisdiction  of 
the  surrogate  and  the  orphans'  court  in  such  cases  was  put  to 
a  judicial  test.  A  will  was  admitted  to  probate  by  a  surrogate 
without  objection.  After  the  time  for  appeal  had  expired, 
parties  interested  applied  to  the  surrogate  for  citations  to  the 
executors,  and  to  all  parties  in  interest,  requiring  them  to 
appear  before  the  orphans'  court  of  that  county,  for  the  pro- 
bate of  the  will  in  solemn  form.  The  orphans'  court  declined 
jurisdiction;  and  upon  an  appeal  to  the  Prerogative  Court,  the 
action  of  the  orphans'  court  was  approved  and  affirmed.  The 
court,  in  reaching  this  conclusion,  felt  bound  to  treat  the  opin- 
ion of  the  Ordinary  in  the  Straul)  case  as  not  correctly  express- 
ing the  powers  of  the  surrogate  and  orphans'  court  in  such 
matters,  and  held  that  after  a  will  had  been  admitted  to  probate 
by  the  surrogate,  and  no  appeal  had  been  taken  within  the  time 
limited  by  statute,  no  jurisdiction  existed  in  the  surrogate  to 
refer  to  the  orphans'  court  the  question  of  probate  in  solemn 

I'Scharcr  v.   Schmidt,  50  N.  J.  1*52  N.  J.  Eq.,  319. 

Eq.,  795-  '■'    '•''  ■'• 

14 


ig2  Probate  Law  and  Practice. 

form,  and  no  jurisdiction  existed  in  the  orphans'  court  to  direct 
such  probate;'^  and  upon  appeal  to  the  Court  of  Errors  and 
Appeals,  the  decree  of  the  Prerogative  Court  was  affirmed  for 
the  reasons  expressed  in  its  opinion.^*' 

In  delivering  the  opinion  in  Murray  v.  Lynch,^'  the  Ordinary 
expressly  refrained  from  considering  the  power  of  the  Prerog- 
ative Court  in  respect  to  the  probate  in  solemn  form  of  wills 
produced  and  probated  before  the  Ordinary.  Whether  the 
Ordinary  might  not  require  a  will  proved  before  him  to  be 
again  proved  in  solemn  form  was  not  decided  in  that  case,  and 
remains  to  be  considered.^* 

The  jurisdiction  in  matters  of  probate  and  administration 
which  existed  in  the  English  ecclesiastical  courts,  at  the  time 
of  the  instructions  to  Lord  Cornbury  in  1702,  were  by  those 
instructions  conferred  upon  the  Governors  of  New  Jersey. 
That  jurisdiction  was  exercised  by  the  successive  governors  of 
the  provinces  or  colonies  and  by  those  of  the  state,  after  it  was 
established,  by  the  constitution  of  1776.  By  the  constitution 
of  1844,  the  same  jurisdiction  was  transferred  to  the  Chancel- 
lor, whose  appointment  was  thereby  provided  for,  to  be  exer- 
cised by  him  as  Ordinary  sitting  in  the  Prerogative  Court.  The 
English  ecclesiastical  courts  undoubtedly  possessed  power  to 
require  a  will,  which  had  been  admitted  to  probate  without 
notice  to  the  parties  interested,  to  be  proved  thereafter  in 
solemn  form  upon  notice  to  such  parties. ^^  Was  that  power, 
conferred  upon  the  successive  colonial  and  state  governors, 
transmitted  to  the  chancellor  sitting  as  Ordinary?  If  the  power 
now  rests  in  the  Ordinary,  in  what  cases  should  it  be  exer- 
cised ?-" 


isMurray    v.    Lynch,    64    N.    J.  of    review    has    expired.      In    re 

Eq.,  290.     In  re  Whitehead's  Es-  Whitehead's  Estate,  94  Atl.  Rep., 

tate,  94  Atl.  Rep.,  796.  796. 

i^Murray  v.  Lynch,  65  N.  J.  Eq.,  i"64  N.  J.  Eq.,  290. 

399-    The  Ordinary  has  no  juris-  i^In  re  Hodnett,  65  N.  J.  Eq., 

diction  to  entertain  proof  of  a  will  329. 

in  solemn  form  as  a  means  of  set-  i^Consets   Pr..    10.      Trist  &   C. 

ting  aside  a  decree  for  probate  by  Prob.  Pr.,  353.    Browne  Prob.  Pr., 

a  surrogate  who  has  acted  within  99-275-    4  Burns  Eccl.  Pr.,  196-199. 

his  original  jurisdiction  and  from  20 j^,   ^e   Hodnett,  65   N.  J.  Eq., 

whose  decree  the  statutory  period  329. 


Probate  of  Wills.  193 

By  section  two  of  the  act  entitled  "An  Act  respecting  the 
prerogative  court  and  the  power  and  authority  of  the  ordi- 
nary," approved  April  16,  1846,-^  it  was  enacted  that  probate 
of  any  will  should  not  be  granted  by  the  Ordinary  until  proof 
was  made  to  his  satisfaction  that  no  caveat  against  proving 
such  will  had  been  filed  in  the  office  of  the  surrogate  of  the 
county  where  the  testator  resided  at  the  time  of  his  death,  or 
that  notice  of  the  application  to  the  Ordinary  for  such  probate 
iiad  been  given  to  all  persons  concerned.  This  provision  is 
included  in  section  fifteen  of  the  present  Orphans'  Court  Act. 
It  would  appear  that  this  legislation  has  always  permitted  an 
executor  who  propounds  his  will  before  the  Ordinary  to  adopt 
one  of  two  alternatives,  namely — first,  to  submit  the  will  upon 
mere  proof  that  no  caveat  has  been  filed  in  the  county  in  which 
the  testator  had  his  residence  at  the  time  of  his  death,  or  sec- 
ond, to  give  notice  to  all  persons  concerned  of  the  application 
for  probate.  If  he  adopts  the  former  alternative,  and  satisfies 
the  Ordinary  that  no  caveat  has  been  filed,  he  may  then  pro- 
pound the  will  and  obtain  his  probate,  without  giving  notice ; 
if,  however,  a  caveat  has  been  filed,  the  Ordinary  would  not 
proceed  to  allow  probate,  except  upon  notice.  But  the  alter- 
native provision  is  so  general  as  to  indicate  plainly  that  it  was 
intended  to  permit  the  executor  to  proceed  for  probate  upon 
such  notice,  whether  a  caveat  had  been  filed  or  not.  Upon 
this  construction  of  the  act,  it  follows  that  any  person  noticed 
to  attend  the  probate  must  be  admitted  to  cross-examine  the 
testamentary  witnesses,  and  to  produce  evidence  on  the  matter 
of  the  will,  and  a  contest  against  the  will  could  be  maintained 
by  him.  It  also  follows  that  any  person  who  has  been  noticed 
to  attend,  and  who  has  refrained  from  attending,  or  who  has 
attended  and  made  no  contest,  would  be  thereafter  estopped 
by  the  order  admitting  the  will  to  probate  from  any  further 
contest,  at  least  on  matters  then  apparent  or  discoverable.  As 
it  was  a  practice  of  the  ecclesiastical  courts  of  England  to 
permit  probate  of  an  uncontested  will  on  notice,  and  the  powers 
of  those  courts  were  conferred  on  the  governors  of  the  colony 
and  state,  it  would  seem  probable  that  such  legislation,  adopted 

-'Rev.  Stat.,  p.  203. 


194  Probate  Law  and  Practice. 

shortly  after  the  period  when  the  Chancellor  became  Ordinary 
under  the  constitution  of  1844,  was  rather  a  regulation  of  a 
practice  recognized  as  existing  than  the  creation  of  a  new  prac- 
tice. 

It  would  appear  that  the  power  to  order  a  will,  which  has 
been  admitted  to  probate  without  notice,  to  be  afterwards 
proved  with  notice,  has  either  not  been  exercised,  or  has  been 
exercised  in  rare  instances  by  the  courts  of  this  state.  That 
such  power  existed  in  the  English  ecclesiastical  courts,  and  was 
together  with  the  other  powers  of  those  courts,  conferred  on 
the  Ordinary  of  the  colony  and  state,  would  appear  to  be 
beyond  dispute.  That  it  has  not  been  taken  away  from  the 
Ordinary  by  legislation  would  seem  equally  clear.  Its  disuse 
does  not  show  abandonment,  if  it  could  be  thus  abandoned. 
It  would  therefore  appear  that  the  Prerogative  Court  has  the 
authority  to  require  an  executor,  who  has  proved  a  will  before 
it  without  notice,  to  prove  the  same  will  with  notice  to  all  the 
parties,  whenever  a  proper  case  for  such  action  is  presented. 

As  to  what  is  a  proper  case  requiring  such  action,  it  would 
appear  that  probate  in  solemn  form  ought  not  to  be  compelled 
unless  upon  some  good  ground  shown.  It  is  manifestly 
unnecessary,  to  prove  that  the  probate  previously  granted 
has  been  improperly  granted,  to  show  that  the  testator  did  not 
in  fact  possess  testamentary  capacity,  or  that  the  will  was  in 
fact  the  product  of  undue  influence,  etc.  It  should  be  sufficient 
to  justify  the  Ordinary  in  requiring  probate  on  notice  if  there 
is  made  to  appear  to  him  a  fair  ground  for  contesting  the 
validity  of  the  will,  in  respect  to  its  execution,  or  the  testamen- 
tary capacity  of  the  testator,  or  undue  influence.  As  to  who 
may  apply  for  probate  in  solemn  form,  it  would  seem  that 
where  any  person  who  was  sni  juris  and  had  knowledge  of  the 
death  of  the  testator  and  of  grounds  for  contesting  his  will,  or 
might  by  due  diligence,  have  obtained  knowledge  of  such 
grounds  has  neglected  to  caveat  against  probate  being  granted, 
he  should  not  afterwards  be  heard  to  demand  that  the  executor 
be  required  to  reprove  the  will  on  such  grounds.  A  convenient 
practice  of  requiring  the  executor  to  reprove  the  will  in  solemn 
form,  upon  notice  to  all  parties  concerned,  is  that  now  in  use  in 
the  English  Probate  Courts,  whereby  an  executor  is  ordered  to 


Probate  of  ^^'ILLS.  195 

bring  in  his  probate  and  show  cause  why  it  should  not  be  re- 
voked and  the  will  pronounced  invalid. " 

PROBATE  OF  WILL  OF  PERSON  PRESUMED  TO  BE 

DEAD. 

Jurisdiction. 

The  act  of  1797"^  provides  that  where  any  person  has 
been  absent  from  the  state  for  more  than  seven  years  and  has 
not  been  heard  from  within  that  time,  such  person  shall  be 
presumed  to  be  dead,  in  any  case  wherein  his  or  her  death  shall 
come  in  question.  The  presumption,  arising  upon  proof  satis- 
fying the  terms  of  this  act,  is  a  presumption  of  law,  and  the 
death  is  presumed  to  have  occurred  at  the  termination  of 
seven  years  from  the  time  when  the  person  was  last  heard 
from.-*  The  judicial  interpretation  of  this  statute  has  declared 
it  to  be  an  embodiment  in  statutory  form  of  the  rule  of  the 
common  law  that  on  proof  that  a  person  has  been  absent  from 
his  usual  abode,  without  being  heard  from  for  seven  years,  his 
death  will  be  presumed.  It  follows,  therefore,  that  upon  proof 
raising  a  presumption  of  death  under  the  provisions  of  this  act, 
the  will  of  a  person  so  presumed  to  be  dead  may  be  admitted 
to  probate.-^ 

PROBATE    OF    WILLS    BEFORE    SURROGATE. 
Jurisdiction  of  Surrogate. 

The  statute  provides  that  the  surrogates  of  the  several  coun- 
ties of  this  state  shall  take  depositions  to  walls  and  admit  the 
same  to  probate  and  grant  letters  testamentary  thereon ;  but  in 
case  doubts  arise  on  the  face  of  a  will,  or  a  caveat  is  put  in 
against  proving  a  will,  or  a  dispute  arises  respecting  the  exist- 
ence of  a  will,  the  surrogate  shall  not  act  in  the  premises,  but 

"In   re  Hodnett,  65   N.  J.  Eq.,  ard  Savings  Inst.,  46  N.  J.  L.,  211. 

329.  Burkhardt     v.    Burkhardt,    63    N. 

232  Comp.  Stat.,  1904,  sec.  r.  J.  Eq.,  479.    Meyer  v.  Madreperla, 

2^Wambaugh  v.  Schenck,  2  N.  J.  68    N.    J.    L.,    258.      Sternkopf's 

L.,  214.     Smith  V.  Smith,  5  N.  J.  Case,  72  N.  J.  Eq.,  356. 

Eq.,  484.     Osborn  v.  Allen,  26  N.  ^ssternkopf's  Case,  72  N.  J.  Eq., 

J.  L.,  388.     Clarke  v.  Canfield,  15  356. 

N.  J.  Eq.,  119.    Hoyt  v.  Newbold, 

45  N.  J.  L.,  219.     Phime  v.  How- 


196  Probate  Law  and  Practice. 

shall  issue  citations  to  all  persons  concerned  to  appear  in  the 
orphans'  court  of  the  same  county,  which  court  shall  hear  and 
determine  the  matters  in  controversy.-^  The  surrogates  have, 
however,  no  jurisdiction  to  admit  to  probate  the  will  of  a  non- 
resident having  a  domicile  at  the  date  of  his  death  in  another 
state,  although  decedent  left  property  in  this  state,  except  as 
ancillary  to  probate  by  the  courts  of  testator's  domicile.  The 
original  jurisdiction  of  the  surrogate  over  the  probate  of  wills 
is  confined  to  those  of  persons  domiciled  within  his  county  at 
the  time  of  death.-' 

As  has  already  been  seen  by  the  provisions  of  section  thirteen 
of  the  Orphans'  Court  Act-**  jurisdiction  is  conferred  on  sur- 
rogates to  take  depositions  to  wills  and  to  admit  the  same  to 
probate  and  grant  letters  testamentary  thereon,  except  in  three 
classes  of  cases,  viz:  (i)  where  doubts  appear  on  the  face  of 
a  will.  i.  e.,  on  the  face  of  the  paper  offered  as  a  will;  (2) 
when  a  caveat  is  put  in  against  proving  a  will,  and  (3) 
when  disputes  arise  respecting  the  existence  of  a  will.  In  any 
of  these  excepted  cases,  the  surrogate  is  not  only  forbidden  to 
act,  but  is  expressly  required  to  issue  citations  to  all  persons 
concerned  to  appear  in  the  orphans'  court  of  the  same  county, 
and  to  that  court  is  expressly  given  jurisdiction  to  hear  and 
determine  the  matters  in  controversy. -° 

When  a  caveat  is  filed  against  the  probate  of  a  will  and  the 
surrogate  cites  all  persons  in  interest  to  appear  in  the  orphans' 
court,  or  where  doubts  arise  upon  the  face  of  the  will  and  the 
surrogate  certifies  the  will  into  the  orphans'  court,  the  surrogate 
is  not  thereby  stripped  of  all  jurisdiction  over  the  case.  The 
jurisdiction  of  the  orphans'  court  attaches  only  to  the  matter  in 
controversy,  and  it  is  over  that  matter  only  that  the  surrogate 
is  ousted  of  jurisdiction.  After  the  orphans'  court  disposes  of 
the  matter  in  controversy,  further  proceedings  should  be  con- 
ducted before  the  surrogate.  So  where  the  orphans'  court, 
upon  a  caveat  against  the  probate  of  a  will,  decrees  the  same 

260rphans'  Court  Act,  sec.  13,  3  "Foreign  Wills,"  p.  211,  infra. 

Comp.  Stat.,  3816.  2«Page  195,  supra. 

27Chadwick's  Case,  80  N.  J.  Eq.,  ^^Murray  v.  Lynch,  64  N.  J.  Eq., 

471.     As  to  ancillary  proceedings  290-295.     Affirmed,  65   N.  J.  Eq., 

upon    wills    of   non-residents,    see  399. 


Probate  of  Wills.  197 

to  be  invalid,  proceedings  for  the  probate  of  another  will  of 
decedent  or  for  the  appointment  of  an  administrator  should  be 
before  the  surrogate.^'' 

Nature  of  Caveat. 

A  caveat  is  incident  to  all  ecclesiastical  courts,  and  prevents 
the  case  from  being  proceeded  with  w'ithout  the  caveator  being 
heard. ^^  The  nature,  design  and  operation  of  a  caveat  are 
simply  to  suspend  the  act  of  probate  until  an  investigation  of 
the  validity  of  the  instrument  may  be  had  before  a  competent 
tribunal. ^- 

Effect  of  Filing  Caveat. 

The  filing  of  a  caveat  deprives  the  surrogate  of  his  jurisdic- 
tion.^^ It  does  not  commence  a  proceeding  for  probate,  but 
stands  as  a  challenge  to  such  proceeding,  forbidding  probate 
by  the  surrogate,  orphans'  court,  or  Ordinary,  until  notice  of 
the  proceeding  shall  be  given  to  the  caveator,"*  and.  where  the 
will  appoints  a  guardian,  prevents  such  testamentary  guardian 
from  prosecuting  a  claim  to  the  sole  custody  of  the  children.^' 

Who  May  File  Caveat — In  General, 

All  persons  w4io  have  any  interest  in  the  result  of  a  conten- 
tion against  the  probate  of  a  will,  or  who  may  be  injured  by 
admitting  a  will  to  probate,  are  entitled  to  file  a  caveat 
thereto  :^*'  but  only  such  persons  are  entitled  to  do  so.  Where, 
therefore,  testator  leaves  a  child  and  a  brother  and  sister,  the 
latter  have  no  standing  to  caveat  against  the  probate  of  his 
will,  for  in  case  they  succeeded  in  their  attempt  to  set  aside 

3oin  re  Queen,  82  N.  J.  Eq.,  583-  34Fisher's    Case.   49    N.   J.    Eq.. 

3iln  re  Coursen's  Will,  4  N.  J.  5I7- 

Eq.,  408.     Slocum  V.  Grandin,  38  soSlack  v.  Perrine,   19  N.  J.  L. 

N.  J.  Eq.,  485-488.     Affirmed,  40  J.,  40.    Fisher's  Case,  49  N.  J.  Eq.. 

N.  J.  Eq.,  342.  517.     Slocum  v.  Grandin,  38  N.  j. 

32In   re   Maxwell,   3   N-  J-   Eq.,  Eq.,  485-     Affirmed,  40  N.  J.  Eq., 

611.  342. 

33Slocum   V.   Grandin.  38  N.  J.  ^RCoursen's   Case,   4  N.  J.   Eq.. 

Eq.,  485-488.     Affirmed,  40  N.  J.  408.    Pancoast  v.  Graham,  15  N.  J. 

Eq.,  342.  T\q..  294. 


198  Probate  Law  and  Practice. 

the  will,  they  could  not  benefit  thereby,  as   testator's  entire 
estate  would  pass  to  his  child."' 

Infants. 

A  caveat  in  behalf  of  an  infant  must  be  filed  in  the  name  of 
the  infant  by  his  next  friend  duly  admitted  to  prosecute  the 
suit;  relatives  of  such  infant  have  no  right  to  file  a  caveat.^^ 

Attorneys  in  Fact. 

When  a  caveat  is  filed  by  a  person  who  claims  to  be  an 
attorney  in  fact  for  non-resident  legatees  under  a  former  will, 
he  must  produce  his  authority  to  appear  for  them."^ 

Executor  of  Will. 

An  executor  propounding  a  will  for  probate  is  obviously 
without  power  to  file  a  caveat  against  the  probate  thereof,  or 
to  raise  a  dispute  respecting  the  existence  of  a  will.*'^ 

Withdrawal  of  Caveat. 

When  a  caveat  is  filed,  the  surrogate  cannot  move  until  some 
one  applies  to  him  to  admit  a  specified  paper  to  probate  as  the 
will  of  the  decedent.  This  calls  upon  him  to  act.  Then  if 
the  application  be  urged,  the  effect  of  the  caveat,  under  the 
statute,  is  to  require  him  to  cite  the  caveator  and  other  persons 
concerned  to  appear  in  the  orphans'  court.  After  the  applica- 
tion is  made  to  the  surrogate,  and  before  he  issues  the  cita- 
tions, the  application  remains  with  him,  and  if  the  caveat  be 
withdrawn,  it  must  be  withdrawn  from  him ;  and  such  with- 
drawal will  operate  as  a  discontinuance  of  the  contest,  and 
enable  him  to  proceed  with  the  probate  of  the  will.*'^  It  fol- 
lows, therefore,  that  a  caveator  may  withdraw  his  caveat  at 
his  pleasure  before  the  jurisdiction  of  the  orphans'  court  has 
attached  by  the  issue  of  citations,  and  the  jurisdiction  of  the 


3'Middleditch  v.  Williams,  47  N.  *oiii  re  Chamberlain,  L.  R..  i  P. 

J.  Eq.,  585.  &  D.,  316.     Murray  v.  Lynch,  64 

38Middleditch  v.  Williams,  47  N.  N.  J.  Eq.,  290-302.     Affirmed,  65 

J-  Eq.,  585-  N.  J.  Eq.,  399. 

3^Pancoast  v.  Graham,  15  N.  J.  "Fisher's    Case.   49    N.   J.    Eq., 

Eq.,  294.  517. 


Probate  of  Wills.  199 

surrogate  is  thereupon  restored.^-  So  where  citations  upon 
a  will  have  been  issued  by  the  surrogate  which  name  a  return 
day  which  has  already  passed,  such  citations  are  to  be  consid- 
ered as  if  no  return  day  had  been  inserted  therein,  for  the  day 
named  is  an  impossible  date ;  and  it  has  therefore  been  held 
that  under  such  circumstances  caveator  may  withdraw  his 
caveat  as  though  no  citations  had  been  issued.^'' 

Probate  of  a  will  will  not  be  set  aside  because  a  legatee  was 
induced  to  withdraw  her  caveat  by  false  representations  made 
to  her  by  persons  not  interested  in  the  matter,  and  with  which 
no  person  interested  in  the  estate  is  chargeable."** 

The  function  of  a  caveat  is  ended  when  it  has  raised  a  con- 
troversy and  the  jurisdiction  over  the  subject  matter  of  the 
controversy  has  attached  to  the  orphans'  court.*"'  To  complete 
the  jurisdiction  of  the  court,  jurisdiction  over  the  necessary 
parties  is  the  only  other  requisite ;  and  this  is  obtained  by  the 
service  of  citations  issued  by  the  surrogate  to  "all  persons 
interested."  It  follows,  therefore,  that  the  withdrawal  of  a 
caveat  after  the  issue  of  citations,  and  pending  the  hearing  in 
the  orphans'  court,  will  have  no  effect  whatever  upon  the 
legality  of  the  proceeding.**^ 

Doubts  on  the  Face  of  the  Will. 

Where  interlineations,  erasures,  or  cancellations  appear 
upon  the  face  of  the  will  which  affect  or  alter  the  terms  there- 
of, without  any  memorandum  attested  by  the  subscribing  wit- 
nesses, showing  when  or  by  whom  they  were  made,  doubts 
arise  as  to  whether  such  interlineations,  erasures  or  cancella- 
tions were  made  before  or  after  the  execution  of  the  will, 
and  whether  they  were  made  by  the  testator  or  by  an- 
other. In  such  case,  the  statute,  as  has  been  seen,  deprives 
the  surrogate  of  jurisdiction,  and  requires  him  to  issue  cita- 

*2Myer's  Case,  69  N.  J.  Eq.,  793.  ^^Young's    Case,   67    N.   J.    Eq., 

Thurston  v.  Gough,  42  N.  J.  Eq.,  553.     Myer's  Case,  69  N.  J.  Eq., 

346.  793- 

*3In  re  Leonard's  Will,  47  All.  ■*'''Slocum   v.   Grandin,   38   N.  J. 

Rep.,  222.  Eq.,  485.     Affirmed,  40  N.  J.  Eq., 

**Kinney    v.    Emery,    38    N.    J.  342.     Myer's  Case,  69  N.  J.  Eq., 

Eq.,  1 01.  793. 


200  Probate  Law  and  Practice. 

tions  to  all  persons  concerned  to  appear  in  the  orphans'  court 
of  the  same  county,  which  court  is  required  to  hear  and  deter- 
mine the  matter  in  controversy.*'  But  the  power  of  the  sur- 
rogate to  issue  citations  on  the  ground  that  doubts  appear 
upon  the  face  of  the  will,  will  not  arise,  except  on  an  adjudica- 
tion by  himself  that  such  doubts  do  appear  on  the  face  of  the 
will  i*^  and.  conversely,  a  decree  admitting  a  will  to  probate 
amounts  to  an  adjudication  that  no  doubts  appear  on  the  face 
of  the  will.*'-' 

When  Administration  Granted,  or  Later  Will  is  Discovered. 

Where  administration  has  been  granted  of  an  estate,  and 
afterwards  a  will  shall  be  produced  to  the  surrogate,  or  where 
probate  of  a  will  shall  have  been  granted,  and  afterwards  a 
later  will  shall  be  produced,  the  surrogate  shall  issue  a  citation 
to  all  persons  interested,  returnable  to  the  orphans'  court,  to 
show  cause  why  probate  of  such  will  should  not  be  granted; 
and  upon  admitting  to  probate  such  will,  the  court  shall  require 
the  administrator  or  prior  executor  to  make  final  settlement 
of  his  account,  and  shall  make  such  order  in  relation  to  the 
commissions  as  shall  be  just  and  equitable. ^° 

Acts  of  Administrator  Before  Notice  of  Will  Valid ;  Rem- 
edies of  Executors. 

All  lawful  acts  done  bona  fide,  by  any  administrator,  before 
notice  of  a  will,  and  all  purchases  made  of  such  administrator 
bona  fide,  before  such  notice,  shall  remain  good,  and  shall  not 
be  impeached  or  altered  by  any  executor  or  executors,  on  such 
will  afterwards  appearing;  provided,  always,  that  when  at  any 
time  after  such  will  shall  appear,  the  executor  or  executors 
shall  have  the  same  remedy  against  such  administrator,  or 
administrators,  for  the  goods  and  chattels,  rights  and  credits, 
remaining  unadministered,  as  he,  she  or  they  might  have  had 
before  the  making  of  this  act.'^ 

^"Orphans'   Court   Act.   sec.    13,  "sCrawford     v.     Lees,    93    Atl. 

p.  19s,  supra.  Rep.,  201. 

^Murray    v.    Lynch,    64    N.    J.  soQrphans'    Court    Rule,    7. 

Eq.,  290-302.  Affirmed,  65  N.  J.  513  Comp.  Stat.,  p.  2258,  sec.  i. 
Kq..  399. 


Probate  of  Wills.  201 

Application  for  Probate. 

Application  for  probate  of  the  will  of  any  person  who  was 
resident  in  this  state  at  his  decease,  and  for  letters  testamen- 
tary thereon  must  be  made  to  the  surrogate  of  the  county  in 
which  the  testator  resided  at  the  time  of  his  death,''-  and  the 
surrogate  ought  to  decline  to  receive  a  will  presented  without 
an  application  in  writing,  such  as  is  required  by  the  rule  f" 
but  if  he  receives  it,  and  finds  a  caveat  against  its  probate  filed, 
and  thereupon  cites  the  persons  concerned,  pursuant  to  the 
direction  of  the  statute,  it  is  clear  that  the  jurisdiction  of  the 
orphans'  court  attaches  to  the  controversy.^* 

When  Application  May  Be  Made. 

No  will  shall  be  proved  before  the  ordinary,  or  surrogate, 
until  after  ten  days  from  the  death  of  the  testator."'  In  com- 
puting the  ten  days  required  to  elapse  before  application  for 
probate  may  be  made,  the  day  of  death  and  that  of  probate 
must  both  be  excluded.  Thus,  where  testator  died  on  Decem- 
ber nineteenth,  probate  cannot  be  granted  until  December 
thirtieth. ^"^ 

Form  and  Contents  of  Application  for  Probate. 

The  application  for  probate  of  a  will  is  required  to  be  in 
writing,  verified  by  affidavit,  and  to  state  the  residence  of  the 
applicant,  the  names  of  the  heirs  at  law  and  next  of  kin  of  the 
deceased,  so  far  as  the  same  are  known,  with  their  residence 
or  post-office  address  and  the  manner  or  degree  in  which  they 
severally,  stand  related  to  him  or  her,  and  shall  also  state  the 
ages  of  any  of  said  heirs  or  next  of  kin  who  may  be  minors ; 
v.hich  application  is  required  to  be  recorded  by  the  surrogate 
in  a  book  to  be  kept  for  that  purpose. ^^ 


^'-'Orphans'   Court   Act,   sec.    14.  ^oOrphans'  Court  Act,  sec.  15,  3 

3  Comp.  Stat.,  3817.  Comp.  Stat.,  3817. 

s^Orphans'    Court    Rule    i,    this  ^^In  re  Evans,  29  N.  J.  Eq.,  571. 

page,  infra.  ''^Orphans'  Court  Rule  i. 

5*Young's    Case,   67    N.   J.    Eq., 
553- 


202  Probate  Law  and  Practice. 

Withdrawal  of  Application  for  Probate. 

An  application  for  the  probate  of  a  will  may  be  withdrawn 
at  any  time  before  citations  are  issued.^* 

Depositions. 

The  statute  authorizes  the  surrogate  to  take  depositions  to 
wills.^'^  If  the  will  has  a  perfect  attestation  clause,  the  depo- 
sition of  one  of  the  witnesses  that  all  of  the  requirements  of 
the  statute  have  been  complied  with  will  be  sufficient.''"' 
Where,  however,  testator  signs  his  name  with  a  mark,  pru- 
dence would  dictate  that  the  testimony  of  both  subscribing  wit- 
nesses be  taken.  If  the  will  does  not  contain  an  attestation 
clause,  or  if  the  attestation  clause  be  defective,  the  burden  of 
proof  is  upon  the  proponent,  and  the  depositions  of  both  wit- 
nesses are  recjuired."^ 
/  In  most  states,  the  testimony  of  both  subscribing  witnesses 
is  required,  even  though  the  will  have  a  perfect  attestation 
clause.  New  Jersey  standing  almost,  if  not  quite  alone,  in 
admitting  a  will  to  probate  upon  the  deposition  of  a  single 
witness.  Where,  therefore,  it  is  necessary  that  ancillary  pro- 
ceedings be  taken  in  another  state  for  any  purpose,  as  where 
there  are  lands  in  another  state  which  pass  under  the  provi- 
sions of  the  will,  as  a  matter  of  prudence  the  testimony  of 
both  subscribing  witnesses  should  be  taken. 

The  subscribing  witness  or  witnesses  must  be  produced,  if 
procurable,  and  great  weight  is  given  to  their  testimony ;  but 
the  probate  of  a  will  is  not  dependent  upon  their  recollection 
or  veracity,  and  other  testimony  may  be  adduced  to  contro- 
vert or  sustain  their  testimony."-  So  a  will  signed  by  a  testa- 
tor and  a  sufficient  number  of  witnesses  may  be  established  by 
testimony  aliunde  that  the  formalities  prescribed  by  the  statute 
have  been  observed.®^ 

58In  re  Leonard's  Will.  47  Atl.  Eq.,  290.     Swain  v.  Edmunds,  53 

Rep-'  ^^^-  N.  J.  Eq.,  142.     Affirmed,  54  N.   T. 

soQrphans'    Court   Act,    sec.    13,  Eq.,  439. 

p.  195,  supra.  62Schouler   on  Wills,    (3d  ed.), 

eoMickle   v.    Matlack,    17   N.   J.  sec.  346-348.     Underbill  on  Wills, 

L.,  86.    Compton  v.  Mitton,  12  N.  sec.  211.    Paige  on  Wills,  sec.  366. 

J.  L.,  70.    Whitenack  v.  Stryker,  2  esAHaire  v.  Allaire,  37  N.  J.  L., 

^- J- ^^^  ^-  312-325.    Affirmed,  39  N.J.  L.,  113. 

"iMundy    v.    Mundy,    15    N.    J.  Compton  v.   Mitton,    12  N.  J.  L.. 

70-75. 


Probate  of  A\'ills.  203 

If  both  witnesses  be  dead,  and  the  will  has  a  perfect  attesta- 
tion clause,  the  will  may  be  proven  by  proof  taken  by  the 
surrogate  of  the  genuineness  of  the  signatures  of  the  witnesses 
and  of  the  testator.'"'*  If  both  witnesses  be  dead  and  the  will 
has  no  attestation  clause,  or  if  that  clause  be  defective,  the  will 
cannot  be  proven,  unless  it  so  happens  that  there  were  present 
at  the  execution  of  the  will  persons  other  than  the  witnesses 
who  are  able  to  testify  that  all  of  the  requirements  of  the  stat- 
ute as  to  the  execution  of  wills  were  complied  with. 

Method  of  Taking  Deposition  of  Non-Resident  Witness. 

If  any  subscribing  witness  to  a  will  shall  reside  out  of  this 
state,  whose  testimony  is  material,  the  surrogate,  orphans' 
court,  or  ordinary,  before  whom  such  will  shall  be  produced 
for  probate,  may  issue  a  commission  annexed  to  such  will,  and 
directed  to  the  judge  of  any  court  of  law,  mayor,  recorder,  or 
other  chief  magistrate  of  any  city  or  town,  where  such  witness 
may  be  found,  or  to  any  consul  or  vice  consul  of  the  United 
States  stationed  in  any  foreign  state  or  kingdom,  or  to  any 
master  in  chancery  of  New  Jersey,  or  to  any  notary  public, 
commissioner  of  deeds,  attorney  or  counsellor  at  law  duly 
admitted  to  practice  in  this  state,  especially  deputized  by  any 
such  surrogate,  orphans'  court  or  ordinary,  authorizing  the 
taking  of  the  deposition  of  such  witness  to  the  said  will ;  and 
the  deposition  of  such  witness  taken  under  oath  or  affirmation, 
and  duly  certified  by  the  person  to  whom  such  commission 
shall  be  directed,  shall  have  the  same  operation  as  if  the  same 
bad  been  taken  before  the  surrogate,  court  or  ordinary  who 
issued  such  commission.®^ 

This  statute  as  amended  in  1913  apparently  provides  for 
two  methods  by  which  the  deposition  of  a  non-resident  witness 
may  be  taken.  First  by  Commission  "directed  to  the  judge  of 
any  court  of  law,  mayor,  recorder  or  other  chief  magistrate 
of  any  city  or  town  where  such  w^itness  may  reside"  and 
second,  by  the  court  specially  deputizing  a  Master  in  Chancery, 

G^ Allaire  v.  Allaire,  37  N.  J.  L.,  ^sp    l    1913,   p.    102,  amending 

311.     Affirmed,  39  N.  J.   L.,    113,  Orphans'    Court   Act,    sec.    16.     3 

and    see   "Attestation    Clause,"    p.  Comp.  Stat.,  3818. 
140,  supra. 


204  Probate  Law  and  Practice. 

commissioner  of  deeds,  notary  public  or  attorney  or  counsellor 
at  law  of  this  state  to  go  into  the  foreign  state  and  there  take 
the  deposition  of  such  subscribing  witness.  It  does  not  author- 
ize the  issuing  of  a  commission  to  a  commissioner  of  deeds  or 
notary  public  of  a  foreign  state. 

Qualification  of  Executor. 

It  has  always  been  the  practice  in  this  state,  before  grant- 
ing letters  testamentary  to  an  executor,  to  require  him  to  take 
an  oath  well  and  truly  to  perform  the  duties  of  his  office,  to 
pay  the  debts  of  deceased  and  the  legacies  mentioned  in  the 
will,  as  far  as  the  goods  and  chattels  of  testator  which  shall 
come  into  his  hands  will  extend,  and  to  well  and  truly  account 
when  thereunto  lawfully  required.  This  oath  has  been  termed 
the  "qualification"  of  the  executor,  and  while  recognized  by 
our  courts  as  necessary,*^**  is  not  required  by  statute.  Its  origin 
must  be  found  in  the  practice  of  the  ecclesiastical  courts 
of  England. 

By  a  constitution  of  Archbishop  Stratford,  it  was  provided 
that  "after  the  testament  shall  be  proved  according  to  custom 
before  the  Ordinary,"  the  execution  or  administration  of  any 
goods  shall  not  be  committed,  but  to  such  as  shall  faithfully 
promise  to  render  a  just  account  of  their  administration  when 
they  shall  be  thereunto  duly  required  by  the  Ordinary.*^' 
Swinburne  says:  "In  what  manner  soever  the  testament  be 
proved,  the  executor  before  he  be  admitted  by  the  Ordinary  to 
execute,  and  before  he  have  the  will  under  the  seal  of  the 
Ordinary,  is  to  promise  by  virtue  of  his  oath  to  make  a  true 
account  when  he  shall  be  thereunto  lawfully  called  by  the 
Ordinary."«« 

Burns,  in  his  work  on  Ecclesiastical  Law,  tells  us  that  by 
Canon  132  it  was  ordained  that  "henceforth  every  executor  or 
suitor  for  administration  shall  personally  repair  to  the  judge  in 
that  behalf,  or  his  surrogate,  and  in  his  own  person  take  the 
oath  accustomed  in  these  cases."  The  ordinance  further  pro- 
vides that  if  by  reason  of  sickness,  age,  or  other  just  impedi- 
ment the  executor  be  unable  to  appear  personally  before  the 

««See   in    re    Maxwell,   3    N.   J.  674  Burns  Eccles.  Law.  209. 

EQ-.  611.  68Swinburne   on    Wills,   427. 


Probate  of  \\'ills.  205 

judge,  it  shall  be  lawful  for  the  judge  to  grant  a  commission 
"to  some  grave  ecclesiastical  person  abiding  near  the  party 
aforesaid"  to  administer  the  accustomed  oath/"'»  The  oath  to 
be  administered  to  the  executor  or  administrator  is  given  by 
Burns,  who  wrote  in  the  year  1786,  in  the  following  language: 
"You  shall  swear  that  you  believe  this  to  be  the  true  last  will 
and  testament  of  A.  B.,  deceased;  that  you  will  pay  all  the 
debts  and  legacies  of  the  deceased,  as  far  as  the  goods  shall 
extend  and  the  law  shall  bind  you  ;  and  that  you  will  exhibit 
a  true  and  perfect  inventory  of  all  and  every  the  goods,  rights 
and  credits  of  the  deceased,  together  with  a    just    and    true 

account  into  the  registry  of  the   Court  of   

when  you  shall  be  lawfully  called  thereunto. ""°     It 

is  interesting  to  note  how  closely  the  oath  used  in  present  day 
practice  conforms  with  the  foregoing  language.  The  fore- 
going outline  will  also  answer  the  question,  doubtless  often 
propounded,  as  to  why  under  our  practice  an  executor  or 
administrator  is  required  to  take  an  oath  well  and  truly  to  per- 
form his  duties  and  a  guardian  is  not  so  required. 

Inasmuch  as  the  canons  and  rules  from  which  was  derived 
our  practice  requiring  an  executor  or  administrator  to  take 
an  oath  of  office  before  entering  upon  his  duties  prescribed 
that  the  oath  should  be  administered  by  the  officer  granting 
the  probate  or  letters  of  administration  it  would  seem  to  fol- 
low that  if  under  modern  practice  the  oath  is  to  be  required, 
it  should  only  be  taken  before  the  Ordinary  or  surrogate,  i.  e., 
the  officer  admitting  the  will  to  probate  or  granting  the  ad- 
ministration. The  power  of  a  surrogate  to  issue  a  commis- 
sion to  take  the  oath  is  at  best  very  doubtful. 

Qualification  by   Corporation  Executor  &c. 

In  all  cases  where  any  corporation  authorized  by  law  and 
its  charter  to  act  as  trustees,  executors,  administrators  or 
guardian,  shall  be  appointed  executor,  administrator,  or  trustee 
of  any  estate  or  guardian  of  any  infant  or  lunatic,  it  shall  and 
may  be  lawful  for  the  president,  cashier,  treasurer,  tru.st  of- 
ficer or  assistant  trust  officer  of  such  corporation  to  take  and 

o»4   Burns   Eccles.   Law  210.  ^"4  Burns  Eccles.  Law,  210. 


2o6  Probate  Law  and  Practice. 

subscribe  for  such  corporation  any  and  all  oaths  or  affirmations 
required  to  be  taken  or  subscribed  by  such  executor,  adminis- 
trator, trustee  or  guardian. ^'^'^ 

Bond  of  Executor. 

No  bond  is  required  from  an  executor  who  is  a  resident  of 
New  Jersey,  unless  expressly  required  by  the  terms  of  the 
will.  A  non-resident  executor  is,  however,  required  to  give 
bond  in  the  same  manner  as  is  required  in  the  case  of  adminis- 
tration with  the  will  annexed,  except  in  cases  where  the  will 
provides  that  no  security  shall  be  required  of  the  person  or 
persons  named  as  executor  or  executors  therein. '^^ 

LETTERS  TESTAMENTARY. 

In  General. 

Letters  testamentary  cannot  be  granted  to  any  person  ex- 
cept one  named  in  the  will ;  but  the  nomination  in  the  will 
may  be  either  express  or  constructive;  if  the  latter,  the  ex- 
ecutor is  usually  called  executor  according  to  the  tenor. '- 

An  executor  is  not  lightly,  or  by  slight  or  indirect  circum- 
stances, to  be  excluded  from  the  trust  the  testator  intended  to 
confide  in  him ;  and  if  the  executor  named  in  a  will  is  capable 
in  law,  he  will  not  be  excluded  unless  he  has  by  some  act  of 
his  own  deprived  himself  of  the  executorship.^^  So  the  fact 
that  the  person  named  in  a  will  as  executor  is  a  non-resident  is 
no  ground  for  refusing  to  grant  him  letters  testamentary  ;'* 
nor  is  the  fact  that  the  person  named  in  a  will  as  executor 
claims  a  considerable  part  of  the  estate  under  a  conveyance  to 
him  by  the  testator,  which  was  adjudged  to  be  a  mortgage 
under  the  form  of  an  absolute  conveyance,  resulting  in  antag- 
onistic feelings  between  the  executor  and  the  legatees. '^^  Where 

ToaP.  L.  1915.  P-  505.  7*Acker's  Case,  70  N.  J.  Eq.,  669, 

"^Orphans'    Court   Act,   sec.   51,  but  see  "Non-Resident  Executors 

p.  311,  infra.  to   Give   Power   of   Attorney,"   p. 

■'■21  Williams  on  Executors,  189.  208,  infra. 

See    also,    "Appointment    of    Ex-  "Acker's    Case,    70    N.    J.    Eq., 

ecutors,"  p.   145,  supra.  669. 

"3In   re   Maxwell,  3   N.  J.   Eq., 

611.  .      . 


Probate  of  Wills.  207 

a  will  names  two  persons  as  executors,  and  letters  testamentary 
are  taken  out  by  one  of  the  persons  so  named,  but  the  other  does 
not  apply  for  nor  take  out  letters,  the  latter  is  not  precluded 
from  thereafter  applying  for  and  taking  out  letters  and  pro- 
ceeding with  the  administration  of  the  estate  jointly  with  his 
co-executor.'*^ 

Executor  Filing  Caveat  to  Will. 

Where  a  will  is  admitted  to  probate,  an  executor  named 
therein,  if  capable  in  law,  is  not  excluded,  unless  he  has  by 
some  act  of  his  own  deprived  himself  of  the  executorship.  His 
renunciation  may  be  either  express  or  implied.  The  filing  by 
him  of  a  caveat  against  the  probate  of  a  will  is  clearly  not  an 
express  or  actual  renunciation,  for  it  speaks  in  no  such  lan- 
guage, nor  can  it  be  deemed  an  implied  renunciation ;  and  it 
does  not  deprive  the  executor  of  the  right  to  qualify,  in  the 
event  of  the  will  being  admitted  to  probate. '^^ 

Insolvents,  Bankrupts,  Etc. 

A  testator  has  the  right  to  impose  confidence  in  w4iom  he 
pleases,  and  may  select  as  his  representative  an  irresponsible 
person  ;'*  but  where  it  is  shown  that  property  in  the  hands  of  an 
executor  is  insecure  or  unsafe,  he  will  be  required  to  give  se- 
curity." 

Idiots  and  Lunatics. 

Idiots  and  lunatics  are  incapable  of  being  executors.''" 
Infants. 

At  common  law,  an  infant  might  be  an  executor,  but  by  the 
statute  of  38  Geo.  Ill,  an  infant  was  disqualified  from  acting.^' 
In  New  Jersey,  while  there  is  no  statute  applying  to  the  case, 
still  it  is  not  the  practice  to  grant  letters  to  an  infant.     In  such 

'•Tn  re  Maxwell,  3  N.  J.  Eq..  Eq.,  289.  I  Williams  on  Execu- 
611.  tors,  187. 

'''In   re   Maxwell,  3   N.  J.   Eq.,  "''Orphans'  Court  Act,  sec.  140, 

611.  p.  312,  infra. 

^^Holcomb  V.  Coryell.   12  N.  J.  ''"i  Williams  on  Executors,  188. 

8' I  Williams  on  Executors,  184. 


2o8  Probate  Law  and  Practice. 

case  the  proper  course  to  pursue  is  either  to  obtain  the  grant 
of  letters  of  administration  durante  minore  aetate  to  the  guard- 
ian of  the  minor,  or  administration  cum  testamento  aniiexo 
may  be  granted  to  such  person  as  is  entitled  thereto.®- 

Effect  of  Appointing  Debtor  Executor. 

The  appointment  of  a  debtor  as  executor  or  executrix,  shall 
not,  unless  otherwise  expressed  in  the  said  will,  be  construed  so 
as  to  discharge  such  executor  or  executrix,  from  the  payment 
of  the  debt,  but  the  said  debt  shall  be  considered  assets  in  his 
or  her  hands,  to  be  accounted  for  in  the  same  manner  as  any 
other  part  of  the  personal  estate.^^ 

Acceptance  of  Executorship. 

The  mere  nomination  by  a  testator  does  not  constitute  a 
person  an  executor ;  he  must  accept  the  trust.  An  implied  ac- 
ceptance will,  however,  be  sufficient  ;**  and  the  probate  of  the 
will  by  the  executor  is  conclusive  evidence  of  his  acceptance.-^ 

Non-Resident  Executors,  Etc.,  to  Give  Power  of  Attorney 

to  Surrogate  for  Service  of  Process. 

Every  executor,  administrator,  trustee  or  guardian  not  a 
resident  within  this  state  shall  file  with  the  surrogate  of  the 
county,  or  with  the  register,  or  clerk  of  the  court,  of  this 
state,  from  which  he,  she  or-^it  has  received  or  may  hereafter 
receive  letters  testamentary  or  of  administration,  or  such  let- 
ters and  power  and  authority  as  have  been  or  may  hereafter  be 
granted,  a  duly  executed  instrument  in  writing  constituting 
the  said  surrogate,  register  or  clerk,  and  his  successors  in  of- 
fice, his,  her  or  its  true  and  lawful  attorney  upon  whom  all 
original  process  in  any  action  at  law  or  in  equity  against  the 
estate  which  he,  she  or  it  may  represent  and  therein  shall 
set  forth  the  post-office  address,  street  and  number,  and  shall 
agree  that  any  original  process  against  the  estate  shall  be  of  the 

^-As  to  grant  of  administration  ^32  Comp.  Stat.,  p.  2261,  sec.  8. 

durante  minore  aetate,  see  p.  283,  8*1  Williams  on  Executors,  225. 

infra.  s^Schenck  v.  Schenck,  16  N.  J. 

Eq.,  174- 


Probate  of  Wills.  209 

same  force  and  effect  as  if  duly  served  on  such  executors,  ad- 
ministrators, trustees  or  guardians  within  this  state. ^® 

Method  of  Service  of  Process. 

Service  of  such  process  shall  be  made  by  leaving  a  copy  of 
the  same  with  the  surrogate  or  deputy  surrogate,  register  or 
clerk,  or  with  any  clerk  employed  in  the  office  of  such  surro- 
gate, register  or  clerk,  together  with  a  fee  of  two  dollars  to  be 
taxed  in  the  plaintiff''s  costs  of  suit.  The  surrogate  or  deputy 
surrogate,  register  or  clerk  shall  forthwith  notify  the  executor, 
administrator,  trustee,  or  guardian  of  such  service  by  mailing 
a  letter  with  a  copy  of  the  process  served  enclosed,  with  full 
postage  thereon  prepaid,  directed  to  such  executor,  adminis- 
trator, trustee  or  guardian  at  the  post-office  address  given  in 
the  said  power  of  attorney.®' 

Effect  of  Failure  to  File,  or  of  Revocation  of  Power  of 
Attorney. 

If  the  power  of  attorney  is  not  executed  and  filed  as  afore- 
said, within  ten  days  after  notice  served  upon  said  executor, 
administrator,  trustee  or  guardian,  either  in  person  or  by  mail 
as  may  be  directed;  or  if  at  any  time  said  power  of  attorney 
is  revoked  by  such  executor,  administrator,  trustee  or  guard- 
ian, any  letters  testamentary,  or  of  administration,  or  any  au- 
thority whatsoever  of  any  kind  which  may  have  been  granted 
by  such  surrogate  or  by  any  court  of  this  state,  or  by  any 
judge  of  any  court  of  this  state,  shall  forthwith  and  im- 
mediately be  and  become  null,  void  and  revoked,  and  any  per- 
son or  persons  or  any  competent  and  duly  authorized  corpora- 
tion of  this  state,  upon  giving  notice  of  such  application  as 
may  be  directed,  may  then  petition  the  surrogate  or  court  or 
whomsoever  may  have  the  power  and  authority,  for  letters 
of  substitution  in  the  place  and  stead  of  those  revoked  as  afore- 
said which  may  then  be  granted.®* 


8«P.  L.  1912,  p.  551,  sec.   I.  88P    L    1912,  p.  551,  sec.  3. 

*^P.  L.  1912,  p.  551,  sec.  2. 


2IO  Probate  Law  and  Practice. 

Contest  of  Grant  of  Letters  Testamentary. 

There  appears  to  be  no  method  by  which  the  right  of  an 
executor,  named  in  a  will,  to  letters  testamentary  can  be  con- 
tested. Filing  a  caveat  with  the  surrogate  against  the  grant 
of  letters,  without  objecting  to  the  probate  of  the  will  is  in- 
effective, as  the  statute  provides  only  for  a  caveat  against  the 
probate  of  the  will.  If  it  be  said  that  the  filing  of  such  a  caveat 
raises  a  dispute  regarding  the  grant  of  letters,  which  requires 
the  surrogate  to  issue  citations  to  the  parties  in  interest,  re- 
quiring them  to  appear  before  the  orphans'  court  to  settle  the 
matter  in  controversy,  the  answer  is  that  the  orphans'  court  is 
a  court  of  statutory  jurisdiction  ;  and  as  there  is  no  provision 
in  the  statute  conferring  jurisdiction  upon  that  court  to  hear 
and  determine  a  contest  as  to  the  right  of  letters  testamentary, 
it  would  appear  that  the  court  is  without  jurisdiction  to  de- 
termine such  a  controversy.  In  Berry's  Case,^^  a  caveat  was 
filed  against  the  grant  of  letters  testamentary,  on  the  ground 
that  the  executor  had  been  guilty  of  fraud  in  transactions  with 
the  testator ;  the  court  granted  letters  testamentary  to  the  ex- 
ecutor, and,  upon  appeal,  the  Prerogative  Court  sustained  the 
action  of  the  orphans'  court,  but  raised  the  question  as  to  its 
jurisdiction,  stating  that  that  question  had  not  been  argued 
upon  the  appeal. 

VALIDITY  OF  PROBATE  BY  SURROGATE. 

In  General. 

The  decree  of  the  surrogate  admitting  a  will  to  probate,  so 
far  as  the  same  relates  to  personal  property,  is  final,  and  cannot 
be  attacked  collaterally.  The  only  method  by  which  the  pro- 
bate of  a  will  by  the  surrogate  can  be  attacked  is  by  appeal ; 
and  after  the  time  limited  by  the  statute  for  taking  such  ap- 
peal has  expired,  there  is  no  method  of  attacking  the  sur- 
rogate's decree^**    It  is  settled  that  a  decree  of  a  surrogate  ad- 

«»7i  N.  J.  Eq.,  719.  Rep.,    201.     Except,    however,    by 

9"Murray    v.    Lynch,    64    N.    J.  direct  attack  before  the  surrogate. 

Eq.,  290.     Affirmed,  65  N.  J.  Eq.,  See  'Tower  of  Probate  Courts  to 

399.    Young's  Case,  67  N.  J.  Eq..  Correct    and    Revoke    their    Do 

553-     Crawford   v.   Lees,   93   Atl.  crees,"  page  — ,  supra. 


Foreign  Wills.  211 

mitting  a  will  to  probate  is  in  effect  an  adjudication  that  no 
doubts  api)ear  on  the  face  of  the  will,  and  that  such  decree  can- 
not be  attacked  collaterally  on  the  ground  that  doubts  in  fact 
appeared  on  the  face  of  the  will  and  that  the  surrogate  was 
therefore  without  jurisdiction  to  admit  the  will  to  probate.^' 
A  decree  of  a  surrogate  admitting  a  will  to  probate  is,  however, 
only  prima  facie  evidence  of  the  validity  of  the  will,  in  so  far 
as  the  same  relates  to  real  estate.''- 

FOREIGN  WILLS. 
Probate  of  Copy  of  Will  Probated  in  Another  State. 

When  any  will  of  a  decedent,  not  resident  in  this  state  at  the 
time  of  his  death,  shall  have  been  admitted  to  probate  in  any 
state  or  territory  of  the  United  States  or  the  District  of  Co- 
lumbia or  in  any  foreign  state  or  kingdom,  and  any  person 
shall  desire  to  have  the  said  will  admitted  to  probate  in  this 
state  for  any  purpose,  application  therefor  may  be  made  by  pe- 
tition duly  verified  to  the  ordinary  or  to  the  surrogate  of  any 
county  in  this  state  ;  and  it  shall  be  the  duty  of  the  ordinary,  or 
such  surrogate,  upon  a  copy  of  such  will,  or  of  the  record  of 
such   will,  and  the  certificate  of  probate  thereof  being  filed 
in  his  office,  certified  and  attested  as  a  true  copy  thereof  by  the 
person  or  persons,  officer  or  court  admitting  the  same  to  pro- 
bate, to  admit  the  same  to  probate  and  to  issue  letters  testa- 
mentary  or   of    administration    with    said   will    annexed   and 
to  record  the  same  in  his  office  without  the  production  of  the 
original  will,  if  it  shall  appear  by  the  record  of  probate  accom- 
panying the  same  that  said  will  was  executed  in  accordance 
with  the  laws  of  this  state;  and  if  it  shall  not  by  said  probate 
proceedings  so  appear,  then  upon  proof  taken  under  a  commis- 
sion, if  necessary,  or  in  any  other  manner  provided  by  law,  of 
the  due  execution  of  said  will,  in  accordance  with  the  laws 
of  this  state,  which  proof  may  be  taken  in  the  same  manner 
as  if  the  original  will  had  been  produced  before  him;    but 
the  person  to  whom  such  letters  may  be  issued  shall  not  be 

"^Crawford     v.     Lees,    93    All.       Rep.,   201.     Allaire   v.   Allaire    37 
^^P-'  201.  N.  J.  L..  3^2  affirmed  39  N.  J.  L. 

'^^Crawford     v.     Lees,    93    All.       113. 


212  Probate  Law  and  Practice. 

obliged  to  file  an  inventory  or  account,  unless  the  ordinary  or 
the  orphans'  court  of  the  county  in  which  probate  may  be 
granted  shall  so  order,  and  any  such  will  being  proved  and 
recorded  shall  have  the  same  force  and  eftect  as  if  the  original 
will  had  been  produced  and  admitted  to  probate  and  letters  tes- 
tamentary or  of  administration  with  the  will  annexed,  had 
been  thereon  issued  in  this  state;  the  record  of  such  will 
and  the  probate  proceedings  had  thereon,  or  a  certified  copy  of 
said  record,  shall  be  received  in  evidence  in  all  courts  of  this 
state ;  provided,  that  where  said  will  has  been  admitted  to  pro- 
bate in  any  state  or  territory  in  the  United  States  or  the  Dis- 
trict of  Columbia,  the  copy  herein  required  to  be  filed  shall  be 
exemplified  and  authenticated  according  to  the  Act  of  Con- 
gress, and  where  said  will  has  been  admitted  to  probate  in  any 
foreign  state  or  kingdom  without  the  United  States,  such 
copy  shall  be  certified  in  the  manner  required  by  the  laws  of 
such  foreign  state  or  kingdom  or  make  it  legal  evidence  there, 
and  a  recital  in  the  certificate  that  the  same  is  so  certified,  shall 
be  prima  facie  evidence  of  that  fact.^^ 

What  the  Record  o£  Foreign  Probate  Must  Contain, 

The  record  exemplified  from  another  state  must  contain 
the  proofs  taken  on  the  probate/^* 

Effect  of  Probate. 

This  section  does  not  give  executors  under  the  will  the  right 
to  maintain  a  suit  in  this  state  without  taking  out  letters  tes- 
tamentary.^^ 

The  act  of  the  surrogate  in  admitting  to  probate  a  foreign 
will,  under  the  statute,  is  a  judicial  proceeding,  in  which  the 
foreign  probate  is  used  merely  as  evidence ;  and  the  subsequent 
reversal  of  the  original  probate  by  the  court  of  the  state  in 

»30rphans'   Court   Act,   sec.   23,  636.     McCarthy  v.   McCarthy    57 

3  Comp.  Stat.,  3820.  N.  J.  Eq.,  587.  but  see  P.  L.  1915, 

9*Allaire  v.  Allaire,  37  N.  J.  L.,  605,  page  213.  infra. 

312.     Affirmed,  39  N.  J.   L.,   113.  ^^Porter  v.  Trail,  30  N.  J    Eq 

Nelson  v.  PoUer,  50  N.  J.  L.,  324.  106. 
Lindley  v.  O'Reilly,  50  N.  J.  L., 


Foreign  Wills.  213 

which  it  was  made  will  not  annul  the  proceedings  by  the  sur- 
rogate.^*^ 

Proceedings  for  Probate. 

The  proceedings  for  the  probate  of  a  foreign  will  are,  as 
will  be  seen  from  the  foregoing,  identical  with  those  upon  the 
will  of  a  resident  of  New  Jersey,  except  that  the  exemplified 
copy  of  the  will  takes  the  place  of  the  original  will,  and  that  it 
is  unnecessary  to  take  the  testimony  of  the  subscribing  w^it- 
nesses,  unless  the  proofs  taken  in  the  foreign  jurisdiction  and 
forming  a  part  of  the  exemplified  record  do  not  show  that  the 
will  was  executed  in  accordance  with  the  statutory  require- 
ments of  this  state,  in  which  case  the  surrogate  may  take  the 
deposition  of  the  subscribing  witnesses,  or  may  issue  a  commis- 
sion for  that  purpose,  as  in  the  case  of  a  will  of  a  resident  of 
this  state. 

Original  Probate  of  Foreign  Will  in  This  State. 

Neither  the  Prerogative  Court  nor  the  surrogate  of  any 
county  of  this  state  has  general  jurisdiction  to  admit  to  probate 
the  last  will  and  testament  of  a  non-resident  having  a  domi- 
cile at  the  date  of  his  death  in  another  state,  although  decedent 
left  property  in  this  state,  except  as  ancillar}^  to  a  probate  by 
the  courts  of  the  locality  of  such  domicile.  The  original  juris- 
diction of  both  the  Ordinary  and  surrogate  over  the  probate  of 
wills  is  confined  to  those  of  decedents  whose  domicile  was, 
in  the  case  of  the  Ordinary,  in  this  state,  and  in  the  case  of  the 
surrogate,  within  his  county,  at  the  time  of  death.-*' 

Copy  o£  Foreign  Will  May  be  Recorded  to  Make  Title  to 
Lands. 

A  copy  of  any  will  or  of  the  record  of  any  will  of  a  decedent 
not  resident  in  this  state  at  the  time  of  his  death,  admitted  to 
probate  in  any  state  or  territory  of  the  United  States  or  the 
District  of  Columbia,  or  in  any  foreign  state  or  kingdom,  and  of 
the  certificate,  order  or  decree  of  probate  thereof,  and  if  title 
to  land  of  said  decedent  depends  or  shall  depend  on  the  convey- 

»«Allaire  v.  Allaire,  yj  N.  J.  L.,  »"Chadwick's  Case,  80  N.  J.  Eq., 

312.    Affirmed,  39  N.  J.  L.,  II3-       471. 


214  Probate  Law  and  Practice. 

ance  by  an  executor  or  executors,  administrator  with  the  will 
annexed  or  administrators  with  the  will  annexed,  of  the  record 
of  the  grant  of  letters  testamentary  thereon  or  of  administration 
with  the  will  annexed  thereon,  or  of  the  copy  of  the  letters  tes- 
tamentary thereon  or  of  administration  with  the  will  annexed 
thereon,  exemplified  and  authenticated  according  to  the  act  of 
congress,  if  it  be  the  record  of  any  state  or  territory  of  the 
United  States  or  the  District  of  Columbia,  or  certified  in  the 
manner  required  by  the  laws  of  the  foreign  state  or  kingdom  in 
which  such  will  shall  have  been  proved  and  recorded  to  make  it 
legal  evidence  in  such  foreign  state  or  kingdom,  if  it  be  the 
record  of  a  foreign  state  or  kingdom,  heretofore  or  hereafter 
filed  and  recorded  in  the  ofifice  of  the  surrogate  of  any  county 
in  this  state,  shall,  if  it  thereby  appears  that  said  will  was  ex- 
ecuted in  accordance  with  the  laws  of  this  state,  have  the  same 
force  and  efifect  in  respect  to  all  lands  and  real  estate  whereof 
the  testator  died  seized,  as  if  said  will  had  been  admitted  to 
probate  and  said  letters  testamentary  or  of  administration  with 
the  will  annexed  thereon  had  been  issued  in  this  state ;  and 
such  will  and  the  certificate,  order  or  decree  of  probate  thereof 
shall  be  of  like  force  and  efifect,  although  the  records  so  ex- 
emplified or  certified  as  aforesaid  are  or  shall  be  devoid  of  or 
defective  in  respect  to  the  proofs  of  the  execution  thereof, 
whenever  it  shall  appear  from  the  attestation  clause  attached 
to  the  will  or  forming  part  thereof  that  such  will  was  executed 
in  accordance  with  the  laws  of  this  state,  and  all  conveyances 
of  such  real  estate  heretofore  or  hereafter  made  by  any  ex- 
ecutor or  executors,  or  administrator  or  administrators  with 
the  will  annexed,  trustee  or  trustees,  substituted  trustee  or 
trustees,  or  the  survivor  or  survivors  of  them,  or  by  any  devisee 
or  devisees  or  persons  claiming  under  such  devisees,  shall  be 
as  valid  as  if  said  will  had  been  admitted  to  probate  and  let- 
ters testamentary  or  of  administration  with  the  will  annexed 
had  been  issued  in  this  state,  and  such  record  or  certified  copies 
of  said  will,  proofs,  order  for  probate  and  letters  or  of  the 
record  thereof,  shall  be  received  in  evidence  in  all  courts  of 
this  state."® 

980rphans'   Court   Act,   sec.  24,       3  Comp.   Stat.,  3821,  as  amended 

by  P.  L.  1915,  p.  605. 


Foreign  Wills.  215 

The  amending  statute  of  191 5  makes  a  radical  change  in  the 
law.  Prior  to  its  enactment,  unless  the  record  showed  by  tes- 
timony of  the  subscribing  witnesses  therein  contained  that  the 
will  was  executed  in  accordance  with  the  laws  of  this  state, 
the  recording  of  such  record  would  not  pass  the  title  to  lands 
in  this  state  therein  devised ;  whereas,  under  the  act  as  amend- 
ed, if  the  record  discloses  that  the  will  has  an  attestation  clause, 
and  it  thereby  appears  that  such  will  was  executed  in  accord- 
ance with  the  laws  of  this  state,  the  order  or  decree  of  such  pro- 
bate thereof  is  made  prima  facie  evidence  of  the  due  and  legal 
execution  of  such  will  and  no  proofs  of  the  execution  thereof 
are  required. 

What  Wills  May  Be  Recorded. 

This  section  applies  only  to  foreign  wills  which  have  been 
admitted  to  probate  in  the  state  from  which  the  copy  of  the 
will  has  been  exemplified ;  probate  in  the  foreign  jurisdiction 
as  evidence  of  the  factum  of  the  will  is  a  condition  precedent 
to  its  being  made  a  record  in  this  state,  and  that  jurisdictional 
fact  must  appear  by  the  certificate  transmitted  with  the  copy 
of  the  will.^° 

Effect  of  Record. 

The  effect  of  this  section  is  to  make  such  record,  or  a  tran- 
script thereof,  competent  evidence,  dispensing  with  proof  by 
subscribing  witnesses,  and  leaving  the  legal  effect  of  the  will 
as  to  devises  of  lands  to  be  determined  as  it  would  be  if  the 
original  will  were  produced  and  proved  ;^°°  but  the  mere  filing 
in  the  surrogate's  office  of  an  exemplified  copy  of  the  record 
of  probate  of  a  will  in  a  foreign  state  does  not  confer  jurisdic- 
tion upon  an  orphans'  court  in  this  state  over  the  executor 
named  in  the  will.  Before  the-orphans'  court  can  acquire  such 
jurisdiction,  it  is  necessary  for  the  executor  to  prove  the  will  in 
this  state  and  take  out  letters  testamentary  thereon.' 

s^Lindley  v.   O'Reilly,  50  N.  J.  iVanDyke  v.  VanDyke,  36  N.  J. 

L.,  636.  Eq.,  521.     Affirmed,  38  N.  J.  Eq., 

lo^Nelson  v.  Potter,  50  N.  J.  L.,  280. 
.124. 


2i6  Probate  Law  and  Practice. 

The  probate  of  a  will  in  one  state,  though  conclusive  as 
to  personalty,  if  the  probate  be  made  at  the  testator's  domicile, 
is  of  no  force  in  establishing  its  efificiency  or  validity  as  to  a 
devise  of  lands  in  another  state ;  it  can  obtain  such  force  only 
by  virtue  of  some  law  of  the  state  in  which  the  lands  lie.- 
So  where  a  vendor  suing  for  specific  performance  of  a  contract 
to  purchase  real  estate  relies  on  title  through  a  foreign  will 
admitted  to  probate  in  a  foreign  jurisdiction,  he  need  not  rely 
on  sections  24  and  25  of  the  Orphans'  Court  Act,^  authoriz- 
ing the  recording  of  the  certificate  of  probate  of  the  will  in  a 
foreign  jurisdiction  and  additional  proof  as  to  its  execution, 
without  the  production  of  the  original ;  but  he  may  at  the 
final  hearing  produce  in  court  the  original  will,  and  prove  its 
due  execution,  and  thereby  obviate  any  objection  to  the  suf- 
ficiency of  the  certificate  of  probate  and  proof  under  the 
statute.* 

EflFect  of  Reversal  of  Foreign  Probate. 

The  subsequent  reversal  of  the  foreign  decree  admitting 
the  will  to  probate  will  not  affect  the  record  in  this  state. ^ 

Proof  of  Execution  of  Foreign  Will. 

Where  an  exemplified  copy  of  any  will,  or  of  the  record  of 
any  will  admitted  to  probate  in  any  state  or  territory  of  the 
United  States  or  the  District  of  Columbia,  or  foreign  state, 
has  been  or  shall  be  filed,  pursuant  to  law,  in  the  ofiice  of 
the  surrogate  of  any  county  of  this  state,  and  it  shall  not  ap- 
pear by  the  record  of  probate  accompanying  such  will  whether 
or  not  such  will  was  executed  in  the  manner  required  by  the 
laws  of  this  state  to  transfer  or  afifect  the  title  to  real  estate 
situate  in  this  state,  it  shall  be  lawful  for  the  orphans'  court 
or  the  surrogate  of  the  county  in  which  such  exemplified  copy 
of  the  will  is  filed,  to  receive  proofs  as  to  the  due  execution  of 
said  will  without  the  production  of  the  original  will ;  and, 
when   necessary,   said   court  or   surrogate   may   order   that  a 

2Nelson  v.  Potter,  50  N.  J.  L..  ^gcott  v.   Carter,   y(i  Atl.   Rep., 

324.  1056. 

^See  page  213.  supra,   and   this  ^Allaire  v.  Allaire,  2>7  N.  J.  L. 

page,  infra.  312.     Affirmed,  39  N.  J.  L.,  113. 


Foreign  Wills.  217 

commission  issue  to  take  the  testimony  of  non-resident  wit- 
nesses, and  the  proofs  so  taken  shall  be  riled  with  said  exem- 
plified copy  of  the  will  or  of  the  record  thereof,  and  recorded 
in  such  surrogate's  office,  and  shall  have  the  same  force  and 
ettect  as  if  the  same  were  a  part  of  the  j)roofs  on  which  the 
original  will  was  admitted  to  probate  in  such  state,  territory. 
District  of  Columbia,  or  foreign  state  ;  and  all  conveyances  of 
real  estate  heretofore  or  hereafter  made  by  any  executor  or 
executors,  administrator  or  administrators  with  the  will  an- 
nexed, trustee  or  trustees,  or  the  survivor  or  survivors  of  them, 
by  virtue  of  the  power  and  authority  conferred  in  any  will  so 
duly  proven  to  have  been  executed  in  accordance  with  the  laws 
of  this  state,  or  by  any  devisee  or  devisees  named  in  said  will, 
or  persons  claiming  under  such  devisees,  shall  be  as  valid  as 
if  said  will  had  been  admitted  to  probate  and  letters  testa- 
mentary, or  of  administration  with  the  will  annexed,  had  been 
issued  in  this  state;  and  such  records  or  copies  thereof,  duly 
certified,  shall  be  received  in  evidence  in  all  courts  of  this 
state.'^ 

Certain  Defects  in  Records  Heretofore  Filed  Validated. 
Where  any  foreign  will  or  a  copy  thereof,  or  a  copy  of  the 
record  of  any  foreign  will  or  of  the  exemplification  thereof, 
shall  have  been  probated,  filed  or  recorded  in  this  state,  prior 
to  the  fourth  day  of  July,  A.  D.,  one  thousand  eight  hundred 
and  eighty-eight,  and  said  record  or  exemplification  of  such 
foreign  will,  from  any  foreign  state,  territory  of  the  United 
States,  District  of  Columbia  or  Kingdom,  shall  be  informal, 
or  cannot  be  found  in  the  office  of  the  surrogate  or  register  of 
wills  of  any  county  in  this  State  wherein  such  foreign  will 
shall  have  been  probated,  it  shall  be  lawful  for  any  person  in- 
terested therein  to  file  with  any  such  surrogate  or  register  of 
wills  an  exemplified  copy  of  the  probate  in  such  foreign  state, 
territory  of  the  United  States,  District  of  Columbia  or  king- 
dom, and  upon  the  filing  thereof,  whether  prior  to  or  after  the 
fourth  day  of  July,  A.  D.,  one  thousand  eight  hundred  and 
eighty-eight,  said  exemplification  of  such  probate  shall  be  re- 
ceived in  all  the  courts  of  this  state  in  the  same  manner  and 

^Orphans'  Court  Act,  sec.  25.    3 
Comp.  Stat.,  3821. 


2i8  Probate  Law  and  Practice. 

to  the  same  extent  and  effect  as  if  such  exemphfication  had 
remained  on  file  in  the  office  of  such  surrogate  or  register  of 
wills  continuously  from  the  date  of  the  probate  of  such  for- 
eign will  in  this  state. 

Any  foreign  will,  or  a  copy  thereof,  or  a  copy  of  the  record 
of  the  probate  of  any  foreign  will,  filed,  recorded  or  pro- 
bated in  this  state  prior  to  the  fourth  day  of  July,  A.  D.,  one 
thousand  eight  hundred  and  eighty-eight,  shall  be  deemed  to 
be  valid  and  effectual  in  law,  notwithstanding  the  fact  that  the 
copy  of  any  such  foreign  will  or  the  record  thereof  or  the 
certificate  of  probate  thereon,  or  the  letters  granted  thereon  in 
any  such  foreign  state,  territory  of  the  United  States,  District 
of  Columbia,  or  Kingdom,  or  the  exemplification  thereof,  on 
which  such  foreign  will  was  probated  in  this  state,  fail  to 
set  forth  or  contain  the  proofs  that  the  will  was  made  and 
executed  in  the  manner  and  with  the  formalities  prescribed  by 
the  statute  of  this  state  for  devises  of  lands;  and  all  con- 
veyances of  such  real  estate  heretofore  or  hereafter  made  by 
any  executor  or  executors,  or  administrator  or  administrators 
with  the  will  annexed,  trustee  or  trustees,  or  the  survivor  or 
survivors  of  them,  or  by  any  devisee  or  devisees,  or  persons 
claiming  under  such  devisee  or  devisees,  shall  be  as  valid  as  if 
said  will  had  been  admitted  to  probate  and  letters  testamentary, 
or  of  administration  with  the  will  annexed,  had  been  issued 
in  this  state  upon  proofs  taken  that  the  said  will  was  made 
and  executed  in  the  manner  and  with  the  formalities  prescribed 
by  the  statute  of  this  state  for  devises  of  lands ;  and  such 
record  of  any  such  proceedings  in  this  state,  or  certified  copies 
thereof,  shall  be  received  in  evidence  in  all  courts  of  this  state. ^ 

Whenever  the  will  of  any  person  residing  in  this  state,  who 
died  prior  to  January  first,  one  thousand  eight  hundred  and 
ninety -five,  which  has  not  been  admitted  to  probate  (or  the 
probate  thereof  denied)  in  this  state,  but  which  has  been  ad- 
mitted to  probate  in  any  state  or  territory  of  the  United  States 
or  in  the  District  of  Columbia,  and  of  which  a  copy  together 
with  a  copy  of  the  certificate,  order  or  decree  of  probate,  or  of 
the  record  thereof,  duly  exemplified  and  authenticated  ac- 
cordmg  to  the  act  of  Congress,  has  been  filed  and  recorded, 

^P.  L.  1911,  p.  671. 


Record  of  Probate  as  Evidence.  219 

or  hereafter  shall  be  filed  and  recorded,  in  the  surrogate's 
office  of  any  county  in  this  state,  then  for  the  purpose  of  mak- 
ing title  to  real  estate  in  this  state,  if  it  shall  appear  either 
from  the  attestation  clause  attached  thereto,  or  forming  a  part 
thereof,  or  by  the  certificate,  order  or  decree  of  probate,  or  the 
proofs  of  probate,  or  from  any  and  all  of  them  that  said  will 
was  executed  in  the  manner  and  form  as  required  by  the  laws 
of  this  state,  the  record  of  such  will  shall  have  the  same  force 
and  effect  in  respect  to  lands  and  real  estate  whereof  the  tes- 
tator died  seized  as  if  said  will  had  been  admitted  to  probate 
in  this  state,  and  all  conveyances  of  such  real  estate  heretofore 
or  hereafter  made  by  any  executor  or  executors,  trustee  or 
trustees,  or  the  survivors  or  survivor  of  them,  or  bv  any  de- 
visee or  devisees,  under  such  wall  shall  be  as  valid  as  if  said 
will  had  been  admitted  to  probate  in  this  state  and  such  record 
or  certified  copies  thereof  shall  be  received  in  evidence  in  all 
courts  of  this  state,  and  any  person  interested  in  such  will,  or 
thereunder,  may  cause  such  copy  of  such  will,  or  of  the  record 
thereof,  certificate,  order,  or  decree  of  probate  and  written 
proofs,  if  any  there  be,  to  be  filed  and  recorded  in  the  sur- 
rogate's office  in   any  county  of  this   state/* 

EVIDENTIAL  VALUE  OF  RECORD  OF  PROBATE. 

Statutory  Provisions. 

The  statute  requires  that  the  surrogate  shall  record  all  wills 
proved  before  him  or  before  the  orphans'  court,  together 
with  the  proofs  thereof  and  the  letters  testamentary  issued 
thereon  ;  and  the  act  provides  that  a  transcript  of  such  record, 
certified  under  the  hand  and  seal  of  the  surrogate,  shall  be  re- 
ceived in  evidence  in  every  court  of  this  state,  and  have  the 
same  validity  and  effect  as  transcripts  certified  by  the  register 
of  the  prerogative  court.**  This  section  was  designed  to  make 
copies  of  records  of  wills  prima  facie  evidence  for  the  sake  of 
convenience  and  to  dispense  with  the  production  of  the  sub- 
scribing witnesses   in   support  of   title  by  devise ;    but   when 

"aP.  L.  1915,  p.  369.  sQrphans'   Court   Act,   sec.    158. 

3  Comp.  Stat.,  p.  3872. 


220  Probate  Law  and  Practice. 

such  record  is  produced,  the  ordinary  principles  of  evidence 
become  applicable.^ 

Probate  as  Evidence  of  Execution  of  Will. 

The  probate  of  the  will  of  any  person,  resident  in  this  state 
at  the  time  of  his  or  her  decease,  which  has  been  or  hereafter 
may  be  admitted  to  probate  in  this  state,  shall  be  conclusive 
evidence  of  the  formal  execution  of  said  will,  in  any  suit. 
action  or  proceeding,  not  commenced  within  seven  years  from 
the  time  of  such  probate;  provided,  that  the  affidavit,  de- 
position or  testimony  of  the  subscribing  witnesses  thereto, 
or  one  of  them,  shall  state  that  said  will  was  signed  by  said 
testator;  provided  further,  that  the  attestation  clause  of  said 
will  states  that  said  will  was  signed  and  declared  by  such  tes- 
tator to  be  his  last  will  and  testament  in  the  presence  of  the 
subscribing  witnesses  thereto,  who  were  both  present  at  the 
same  time  and  who  signed  their  names  as  witnesses  thereto  in 
the  presence  of  such  testator,  and  in  the  presence  of  each 
other,  or  words  to  that  effect;  and  provided  further,  that  the 
time  during  which  any  person  claiming  as.  or  under,  the  heir  of 
such  testator  shall  be  under  the  age  of  twenty-one  years  shall 
not  be  taken  as  part  of  said  period  of  seven  years;  and  pro- 
vided further,  that  nothing  herein  contained  shall  afifect  any 
suit,  action  or  proceeding  heretofore  commenced  and  now 
pending.^" 

Copy  of  Record  of  Will  May  be  Recorded  in  any  County. 
Such  Record  Competent  Evidence. 

When  any  will  devising  lands  shall  have  been  duly  admitted 
to  probate  before  the  ordinary  or  any  surrogate  of  this  state, 
it  shall  be  lawful  for  the  surrogate  of  any  county  in  this  state, 
on  the  application  of  any  person  interested  therein,  upon  filing 
a  certified  copy  of  such  will  and  the  application  for  probate 
thereof,  proofs,  order  for  probate  and  letters  testamentary 
thereon,  to  record  the  same;  and  such  record,  or  a  certified 
copy  thereof,  shall  be  received  in  evidence  in  any  trial  or  con- 

^Otterson  v.  Hofford  i(>  N.  J.  104   Comp.    Stat.,    5872,   sec.   35. 

L.,  129-133.     Nelson  v.  Potter,  50 
N.  J.  L.,  324-329- 


Contested  Probate.  221 

troversy  respecting  the  title  to  lands  in  such  county,  in  the 
same  manner  as  if  the  said  will  had  been  originally  admitted 
to  probate  before  such  surrogate. ^^ 

Validity  and  Effect. 

A  certified  copy  of  the  surrogate's  proceedings,  on  an  ap- 
plication for  probate,  has  the  effect  of  a  record,  against  which 
no  averment  will  be  admitted  by  the  Ordinary.^-  If  the  proofs 
contained  in  the  record  of  the  probate  of  a  will  devising  lands 
show  that  the  will  was  executed  with  all  the  formalities  re- 
quired by  law,  the  {)robate  will  be  prima  facie  evidence,  and 
will,  of  itself,  be  sufficient  in  an  action  of  ejectment  to  establish 
the  title,  if  not  overcome  by  counterproof  ;^"  but  the  heir  at 
law  is  not  concluded  by  the  probate  from  disproving  the  prima 
facie  title  shown  by  its  production.  He  may  controvert  the 
effect  of  the  probate  by  proof  of  the  insanity  of  the  testator,  or 
the  want  of  any  of  the  legal  requisites  of  a  valid  will,  and  may 
impeach  its  validity  in  any  manner  which  would  be  permitted 
if  the  original  will  had  been  produced  and  proved  by  wit- 
nesses.^* 

What  the  Transcript  Must  Contain. 

Unless  a  transcript  of  the  record  of  probate  of  a  will  de- 
vising lands  contains  the  proof  taken  before  the  surrogate  as 
required  by  the  statute,  it  will  not  be  admitted  in  evidence.'^ 

CONTESTED  PROBATE. 

General  Principles. 

Proceedings  to  contest  wills  are  of  two  classes  ;  those  brought 
to  contest  wills  which  have  not  as  yet  been  admitted  to  pro- 

iiQrphans'   Court  Act,   sec.  21,  i*Den  v.  Allen,  2  N.  J.  L.,  33, 

3  Comp.  Stat.,  3819.  Otterson  v.  Hofford,  36  N.  J.  L., 

i^In  re  Coursen's  Will,  4  N.  J.'  129.     Allaire  v.  Allaire,  37  N.  J. 

Eq.,  408.     See  also  Orphans'  Court  L.,  312.    Affirmed,  39  N.  J'.  L.,  ii:v 

Act  section  156,  page  5X,  supra.  Nelson  v.  Potter,  50  N.  J.  L.,  324- 

i^AUaire  v.  Allaire,  37  N.  J.  L.,  329. 

312.     Affirmed,  39   N.  J.   L.,    113.  i^Den  v.  Allen,  2  N.  J.  L.,  32. 

Nelson  v.  Potter,  50  N.  J.  L.,  324-  Allaire  v.  Allaire,  37  N.  J.  L.,  312. 

329.  Affirmed,  39  N.  J.  L.,  113.    Nelson 

V.  Potter,  50  N.  J.  L.,  324-329. 


222  Probate  Law  and  Practice. 

bate,  and  those  begun  after  the  will  has  been  probated  by  the 
surrogate.  The  latter  class  of  proceedings  are  inaugurated  by 
an  appeal,  and  will  be  considered  in  the  chapter  devoted  to  that 
subject.^*'  The  former,  as  has  already  been  seen,  are  begun  by 
filing  a  caveat  with  the  surrogate.  This  class  will  now  be  con- 
sidered. 

A  will  may  be  contested  on  the  ground  of  lack  of  tes- 
tamentary capacity,  for  fraud  or  undue  influence  in  procuring 
the  execution  of  the  will,  or  because  it  was  not  executed  with 
all  of  the  solemnities  prescribed  by  the  statute.^'  No  pleadings 
are  filed  by  either  the  proponent  or  the  caveator,  other  than 
the  caveat  filed  by  the  caveator  and  the  petition  of  probate 
filed  with  the  surrogate  by  proponent  when  the  will  is  pro- 
duced for  probate. 

Parties. 

When  a  caveat  is  filed,  the  legislative  scheme  requires  that 
citations  be  issued  to  "all  persons  concerned."  Who,  then, 
are  the  persons  concerned?  When  a  caveat  is  filed,  and  a 
will  is  presented,  or  when  a  dispute  arises  respecting  the  ex- 
istence of  a  will,  the  matter  goes  to  the  orphans'  court,  to  be 
considered  under  its  power  and  authority  to  hear  and  de- 
termine all  such  disputes  and  controversies.  The  citation  of 
the  parties  to  these  disputes  and  controversies  affords  reason- 
able protection  to  all  interested.  A  caveat  may,  as  has  been 
seen,  be  filed  by  any  person  who  would  be  injured  by  the 
probate  of  a  will,  and  its  function  is  to  prevent  probate  with- 
out the  caveators  having  an  opportunity  to  be  heard,  but  it 
concerns  the  caveator  alone ;  it  may,  as  has  been  seen,  be 
withdrawn  at  his  pleasure  before  the  jurisdiction  of  the  or- 
phans' court  has  attached.  Therefore  any  one  interested  in 
promoting  or  preventing  the  probate  of  a  supposed  will  is  en- 
titled to  make  himself  a  party" to  the  proceedings  by  filing  a 
caveat";  and  our  statute  secures  an  opportunity  for  such  inter- 

'•'See  "Appeal,"  p.   74,  supra.  Influence,"  p.  149,  supra.    "Execu- 

^^See  "Testamentary  Capacity,"      tion  of  Wills,"  p.  125,  supra, 
p.  103,  supra.     "Fraud  and  Undue 


Contested  Probate.  223 

vention  by  requiring  ten  days  to  elapse  between  the  death  of  a 
testator  and  the  probate  of  his  will. 

When  the  legislature  provided  for  thus  converting  "non- 
contentious  business"  before  the  surrogate,  whose  final  action 
would  be  conclusive  on  all  persons  interested  in  the  decedent's 
estate,  into  "contentious  business"  before  the  orphans'  court, 
which  is  to  hear  and  determine  all  disputes  and  controversies, 
but  without  any  greater  conclusiveness  attaching  to  its  final 
decree,  it  is  reasonable  to  suppose  that  by  the  provision  for 
notice  to  all  persons  concerned  only  those  persons  who  had 
made  themselves  parties  to  the  contention  were  intended.  It 
follows  that  when  caveats  are  filed  against  the  probate  of  a 
will,  the  service  of  citations  upon  the  caveators  and  upon 
those  propounding  the  will  for  probate,  vests  in  the  orphans' 
court  of  the  proper  county  complete  jurisdiction  over  the 
([uestion   of   probate. ^^ 

Service  of  Citations. 

The  statute^^  directs  that  all  process  of  the  orphans'  court 
shall  be  served  by  the  sherifif  ten  days  before  the  day  whereon 
it  shall  be  returnable,  in  the  same  manner  as  writs  of  summons 
are  required  to  be  served  by  the  Practice  Act.-° 

Citations  issued  out  of  the  orphans'  court  may  be  issued  into 
any  county  of  this  state  and  shall  be  served  by  the  sheriff,  or 
other  proper  officer  of  such  county,  and  the  court  is  authorized 
to  enforce  obedience  to  all  such  citations  in  the  same  manner 
as  if  the  same  had  been  served  within  the  county  where  such 
citation  is  issued. ^^ 

Provision  is  also  made  by  the  statute  for  service  on  non-resi- 
dents.-- 

isMyers'    Case,    69    N.    J.    Eq.,  .i^Orphans'  Court  Act,  sec.  176. 

793.  overruling  Young's  Case,  67  p.  40,  supra. 

N.   J.    Eq.,    553,    which    held    that  -"Orphans'  Court  Act.   sec.    176, 

those  benefited  by  the  will  and  in-  p.  40.  supra. 

terested  in  supporting  its  probate.  siQrphans'  Court  Act,  sec.   176, 

as  well  as   the  heirs  at   law  and  p.  40,  supra. 

next  of  kin  of  the  alleged  testator  ^^Ste  Orphans'  Court  Act,  sec- 

should  be  cited.  tion  177,  page  40,  supra,  and  sec- 


tion 183,  page  49,  supra. 


16 


224  Probate  Law  and  Practice. 

Hearing. 

In  a  contested  will  case,  the  burden  is  primarily  upon  the 
proponent  to  make  out  a  prima  facie  case.-^  He  therefore  calls 
the  attesting  witnesses  and  examines  them  in  regard  to  the 
facts  and  circumstances  attending  the  execution  of  the  will, 
after  which  the  caveator  is  permitted  to  cross-examine.  While 
it  is  the  better  practice  to  produce  both  attesting  witnesses  to 
the  will,  still  there  is  no  hard  and  fast  rule  requiring  a  pro- 
ponent of  a  will,  under  an  ordinary  caveat,  to  produce  before 
the  orphans'  court  all  of  the  witnesses  to  the  alleged  wall,  or  to 
show  by  legal  evidence  that  he  was  unable  to  do  so.  There  has 
been  conferred  on  the  court  jurisdiction  to  determine  whether 
the  paper  propounded  is  a  will — i.  e.,  a  paper  executed  with 
the  formalities  required  by  the  statute,  by  a  person  capable  of 
making  it.  The  burden  of  proof  rests,  as  has  been  seen,  upon 
the  proponent.  When  he  presents  proof  sufificient  to  justify 
the  court  in  finding  that  the  paper  was  duly  executed,  he  may 
rest  his  case.  If  he  presents  such  sufficient  proof,  the  court 
may  act  upon  it,  unless  it  is  met  and  overcome  by  counter- 
proof.=^* 

After  the  examination  of  the  attesting  witnesses,  the  pro- 
ponent rests  his  case.  If  the  testimony  produced  fails  to 
establish  a  prima  facie  case  of  due  execution,  the  court  will, 
without  further  testimony,  deny  probate  of  the  will.  If,  on  the 
other  hand,  proponent  establishes  a  prima  facie  case,  the 
caveator  opens  his  case  in  opposition  to  the  will,  and  calls 
witnesses  to  testify  in  support  of  his  contentions;  he  then  be- 
comes the  moving  party,  and  the  burden  is  upon  him  to  estab- 
lish by  a  preponderance  of  evidence  the  objections  urged 
against  the  validity  of  the  will.-'"' 

After  the  caveator  has  rested  his  case,  the  proponent  is 
permitted  to  introduce  testimony  by  way  of  rebuttal  of  that 
of  the  caveator,  under  the  general  rules  of  evidence  govern- 

23Ward  V.  Wilcox,  64  N.  J.  Eq.,  Whitenack  v.  Stryker,  2  N.  J.  Eq., 

303.     -Affirmed,  65  N.  J.  Eq.,  397.  15. 

Whitenack  v.  Stryker,  2  N.  J.  Eq.,  ^sSee  "Testamentary  Capacity," 

^5-  p.  116.  supra.    "Fraud  and  Undue 

2*Ward  V.  Wikox,  64  N.  J.  Eq.,  Influence,"  p.  i6o,- supra.    "Execu- 

303.     Affirmed,  65  N.  J.  Eq.,  397.  tion  of  Wills,"  p.  143,  supra. 


Contested  Probate.  225 

ing  trials  in  a  court  of  law.  After  the  testimony  has  been  com- 
pleted, and  both  sides  have  rested  their  respective  cases,  the 
court  will,  after  consideration  of  the  testimony,  make  its  decree 
admitting  or  denying  probate  of  the  will,  as  the  circumstances 
of  the  case  may  require. 

When  in  a  contest  pending  in  the  orphans'  court  evidence  is 
taken  by  a  master,  or  by  the  surrogate,  or  in  open  court,  and 
reproduced  from  a  stenographer's  notes,  a  judge  of  the  court, 
succeeding  a  predecessor  who  sat  when  the  evidence  was  taken, 
may  use  it  in  determining  the  questions  presented  in  the  con- 
test.-*^ 

Evidence. 

Proceedings  for  the  probate  of  a  will  are,  as  has  been  seen, 
not  a  civil  action,  but  a  judicial  inquiry  to  ascertain  whether 
the  instrument  before  the  court  is  the  last  will  and  testament 
of  the  deceased.  Therefore  section  4  of  the  Evidence  Act,-*^* 
prohibiting  parties  to  an  action  against  a  personal  representa- 
tive of  a  decedent  from  testifying  as  to  transactions  with  or 
declarations  by  such  decedent,  is  inapplicable.  An  executor 
and  proponent  of  a  will,  and  a  beneficiary  thereunder,  or  the 
attorney  and  counsel  of  the  testator  in  the  execution  of  a  will, 
may  all  testify  as  to  transactions  with  or  declarations  by  the 
decedent,  evidencing  testamentary  capacity,  but  their  interest 
may  be  considered  in  determining  their  credibility.-' 

The  rules  applicable  to  the  admissibility  of  evidence  in  con- 
tests involving  testamentary  capacity,  undue  influence,  &c.,  will 
be  considered  in  connection  with  those  subjects.-^ 

Allowance  to  Widow  or  Children  Pending  Determination 
of  Contest. 

In  all  cases  where  any  contest  has  arisen  or  shall  arise  in  any 
court  of  this  state  touching  the  prol)ate  of  any  paper  purport- 

26In  re  Martin  Nolan,  71  N.  J.  Veazey's  Will,  80  N.  J.  Eq.,  466. 

Eq.,  207.  28See  "Testamentary  Capacity," 

2«a2   Comp.    Stat.,   2218,    sec.   4.  p.  116,  supra.     "Fraud  and  Undue 

-"Mackin    v.    Mackin,   y?   N.   J.  Influence,"'  p.  160,  supra.   "Revoca- 

Eq.,    528.     Grant    v.    Stamler,    68  tion  of  Wills,"  p.  184,  supra.   "E.x- 

N.  J.  Eq.,  555.     In  re  McLaugh-  ecution  of  Wills,"  p.  140,  supra. 

lin's  Will.  59  Atl.  Rep.,  469.     In  re 


226  Probate  Law  and  Practice. 

ing  to  be  the  last  will  and  testament  of  any  person,  it  shall  and 
may  be  lawful  for  the  ordinary,  or  the  judge  of  the  orphans' 
court  in  the  county  where  such  paper  is  probated,  upon  peti- 
tion made  for  that  purpose  by  the  widow  of  such  deceased  per- 
son or  by  any  child  or  children  of  the  deceased,  or  by  any  child 
or  children  of  any  deceased  child  or  children  of  the  deceased 
(and  if  any  such  child  or  children  be  within  the  age  of  twenty- 
one  years,  then  by  the  next  friend  of  such  child  or  children), 
to  make  an  order  upon  the  person  or  persons  having  custody 
of  such  estate  for  the  payment  of  such  allowance  for  the  sup- 
port and  maintenance  of  such  widow  or  of  such  child  or  chil- 
dren, out  of  the  income  of  the  estate  of  such  deceased  person 
as  the  ordinary  or  the  judge  of  the  orphans'  court  may  deem 
just,  pending  such  contest,  and  such  further  allowance  out  of 
the  income,  or,  if  need  be,  out  of  the  corpus  of  such  estate,  as 
may  be  necessary  to  meet  the  expense  incurred  or  to  be  in- 
curred in  conducting  such  contest  concerning  the  probate  of 
such  will ;  provided,  that  the  person  hereinabove  described  as  a 
widow  shall  have  been  ceremonially  married  to  the  deceased 
person,  and  shall  have  been  living  with  him  as  his  wife  at  the 
time  of  his  death;  and  the  ordinary  or  the  judge  of  the  or- 
phans' court  shall  prescribe  such  rules  to  secure  summary 
hearing  and  relief  upon  such  petition  as  they  may  deem  neces- 
sary.-^ 

An  allowance  out  of  the  corpus  of  a  decedent's  estate  for 
the  support  and  maintenance  of  the  widow  and  children  of 
testator  should  be  refused  unless  it  be  made  to  appear  that  the 
contesting  petitioner  has  reasonable  cause  for  contesting  the 
validity  of   the   will."*^ 

Trial  of  Disputed  Probate  in  the  Circuit  Court.     Jurisdic- 
tion of  Orphans'  Court. 

When  any  caveat  shall  be  filed  against  the  probate  of  a  will, 
or  any  appeal  shall  be  taken  from  the  proceedings  of  any  surro- 
gate respecting  the  probate  of  a  will,  the  orphans'  court  may,  on 

290rphans'  Court  Act,  sec.  22,  as  JOIn  re  McPherson,  24  N.  J.  L. 

amended  by  P.  L.,  1905,  p.  302,  3      J.,  619. 
Comp.   Stat.,  3819,   sec.  22. 


Contested  Probate.  227 

application  of  the  caveator,  appellant,  or  proponent,  certify  the 
questions  involved  in  such  controversy  into  the  circuit  court 
of  the  same  county,  for  trial  before  a  jury.^^ 

Certifying  questions  into  the  circuit  court  is  discretionary 
with  the  orphans'  court ;  the  provisions  of  the  act  are  not  man- 
datory.^- But  query  whether  the  orphans'  court  can  impose 
upon  the  application  for  such  trial  any  condition  as  to  the 
time  of  trial. ^^ 

Application. 

The  application  to  certify  a  case  into  the  circuit  court  for 
trial  before  a  jury  must  be  made  before  the  trial  in  the  or- 
phans' court  is  begun."* 

Proceedings  in  Circuit  Court. 

Upon  the  tiling  of  the  certificate  of  the  orphans'  court  with 
the  clerk  of  the  circuit  court,  the  said  court  shall  have  juris- 
diction to  try  the  said  cause  upon  an  issue  to  be  framed  by -the 
judge  holding  said  court;  the  notice  of  trial  and  proceedings 
for  summoning  and  impaneling  a  jury  and  for  the  trial  of 
the  cause  shall  be  the  same  as  in  causes  commenced  in  the  cir- 
cuit court.^^ 

At  the  trial,  the  proponent  proceeds  to  examine  the  attesting 
witnesses  and  to  make  out  a  prima  facie  case  of  a  valid  will, 
as  in  trials  in  the  orphans'  court.  The  caveator,  or  appellant, 
as  the  case  may  be,  then  presents  his  case,  after  which  the 
proponent   may   present   testimony   by   way   of    rebuttal. 

Upon  the  trial  before  the  circuit  court  of  the  issue  framed 
by  the  circuit  judge,  the  testimony  of  the  witnesses  shall  be 
taken  down  stenographically,  and,  if  required  by  either  of  the 
parties,  shall  be  reduced  to  writing,  and  exceptions  may  be 
taken  to  the  admission  and  rejection  of  testimony  which  shall 
be  entered  upon  the  record.^® 

3'Orphans'   Court   Act,   sec.    18.  34Sutton    v.    Morgan,    30    N.   J. 

3  Comp.  Stat.,  3818.  Eq.,  629. 

32Brothers   v.    Pickel,   31    N.   J.  ^sOrphans'   Court   Act,    sec.    18. 

Eq.,  647.  3  Comp.  Stat.,  3818. 

33Enibley  v.  Hunt,  29  N.  J.  Eq.,  ^cOrphans'  Court  Act,  sec.  19,  3 

306.     See  also  Orphans'  Court  Act  Comp.  Stat.,  p.  3819. 
section  182,  p.  47,  supra. 


228  Probate  Law  and  Practice. 

Where  a  cause  is  certified  into  the  circuit  court,  that  court 
has  no  power,  under  the  provisions  of  the  Act  of  March  23d, 
1900,^^  to  send  the  case  into  the  common  pleas   for  trial.^' 

Motion  for  New  Trial. 

The  verdict  of  the  jury  is  subject  to  be  set  aside  and  a  new 
trial  granted  in  the  circuit  court,  as  in  other  cases  in  said  court ; 
and  the  judge  may,  on  application  for  a  new  trial,  certify  the 
same  to  the  supreme  court  for  its  advisory  opinion.^"  Where 
a  party  claims  to  be  aggrieved  by  any  proceedings  at  the  trial 
of  an  issue  at  the  circuit,  his  remedy  is  by  motion  for  a  new 
trial,  or  to  appeal.  The  orphans'  court  cannot  re-try  the  same 
issue,  after  the  return  of  the  verdict. ***  Alleged  irregularities 
in  the  trial  at  circuit  are  properly  disposed  of  by  application 
to  the  circuit  court  for  a  new  trial  ;*^  and  objections  addressed 
to  the  discretion  of  the  circuit  judge  and  overruled  by  him,  or 
objections  w^hich,  if  raised  at  all,  ought  to  have  been  raised 
in  the  circuit,  are  no  ground  for  reversing  the  decree  of  the 
orphans'   court.*- 

Transcript   of   Proceedings   in   Circuit   Court   to  be   Re- 
turned to  Orphans'  Court. 

After  the  trial  is  finally  concluded  in  the  circuit  court,  it  is 
the  duty  of  the  judge  before  whom  such  issue  is  tried  forth- 
with to  certify  and  return  to  the  orphans'  court  the  proceed- 
ings thereon  had,  and  the  verdict  of  the  jury ;  together  with 
the  testimony,  if  the  same  shall  have  been  reduced  to  waiting; 
a  copy  of  the  charge  to  the  jury;  all  exceptions  which  shall 
have  been  taken  at  the  trial  to  the  admission  or  rejection  of 
evidence,  or  to  the  charge  to  the  jury ;  a  certified  copy  of  the 
costs  which  shall  have  been  taxed,  and  a  statement  of  the  ex- 


37P.  L.  1900,  p.  349,  sec.  48.     2  4oEtnbiey    y,    Hunt,    29    N.    J. 

Comp.  Stat.,  1720,  sec.  (^-7.  Eq.,  281.     Affirmed,   ib.,  306. 

38Bumstead  v.  Judges,  56  N.  J.  ^igrnbley  v.  Hunt,  29  N.  J.  Eq.. 

L-  414-  306. 

390rphans'   Court   Act,   sec.    18.  ^syoumans    v.    Petty,   33    N     [ 

3  Comp.  Stat.,  3818.     See  also  4  Eq.,  532. 
Comp.  Stat.,  5873,  sec.  n. 


Contested  Probate.  229 

penses  of  the  said  trial ;    which  certificate  and  return  shall  be 
filed  by  the  surrogate.^^ 

Orphans'  Court  to  Make  Decree. 

Upon  the  return  into  the  orphans'  court  of  the  transcript  of 
tlie  proceedings  in  the  circuit  court,  the  orphans'  court  pro- 
ceeds to  make  a  decree  touching  the  probate  of  the  said  will 
in  accordance  with  the  finding  of  the  said  issue,  and  may  make 
such  order  concerning  the  costs  and  expenses  and  allowance 
of  counsel  fees  as  may  be  made  in  cases  where  the  hearing 
upon  a  caveat  against  proving  a  will  is  had  before  the  orphans' 
court.** 

After  an  issue  has  been  certified  from  the  orphans'  court 
and  tried  at  the  circuit  and  a  verdict  returned,  the  orphans' 
court  has  no  authority  to  re-try  the  same  issue.  The  act  does 
not  authorize  the  orphans'  court  to  ignore  or  disregard  the 
verdict,  and  proceed  itself  to  try  the  questions  which  were  the 
subject  of  the  issue,  but  gives  the  power  of  granting  a  new  trial 
to  the  court  before  which  the  issue  is  brought.*^  The  only 
other  remedy  of  a  person  aggrieved  is  to  appeal  to  the  pre- 
rogative court. *^ 
Costs. 

The  statute  provides  that  the  same  costs  shall  be  taxable 
as  in  other  cases  in  the  circuit  court.*^ 

APPEAL  FROM  ORPHANS'  COURT  DECREE. 

Appeal  Lies  to  Prerogative  Court. 

An  appeal  to  the  Prerogative  Court  will  lie  from  a  decree  of 
the  orphans'  court  based  upon  the  verdict  of  a  jury  on  a 
case  certified  to  the  circuit  court. *^ 

^^Orphans'   Court   Act,   sec.    19.  *^Orphans'  Court  Act,  sec.  18,  3 

3  Comp.   Stat.,  3819.  Comp.   Stat.,  3818. 

**Orp?mns'  Court  Act,  sec.  19.  3  ^sKitchell  v.  Beach,  35  N.  J.  Eq., 

Comp.   Stat.,  3819.  446.     For   practice   on   appeal   to 

*^Embley  v.  Hunt,  29  N.  J.  Eq.,  prerogative    court,    see    "Appeal.' 

281.    Affirmed,  ib.,  306.  p.  80,  supra. 

*6Kitchell  V.  Beach,  35  N.  J.  Eq., 
446. 


_>30  Probate  Law  and  Practice. 

Jurisdiction  of  Prerogative  Court. 

When  an  appeal  from  the  decree  of  the  orphans'  court 
founded  upon  the  findings  of  a  jury  is  taken  to  the  Prerogative 
Court,  the  Ordinary  is  not  Hmited  to  a  review  of  the  propriety 
of  the  decree  of  the  orphans'  court  upon  the  matter  submitted 
to  that  court's  judgment,  nor  is  he  restricted  by  the  determina- 
tion of  the  issues  considered  at  the  trial  in  the  circuit  court; 
whether  the  paper  shall  be  admitted  to  probate  as  a  will  is 
presented  to  him  as  an  original  question,  which  he  may  de- 
termine either  upon  the  evidence  taken  upon  the  trial  in  the 
circuit  court,  or  upon  that  evidence  supplemented  by  other 
proofs,  or  upon  new  proofs,  at  his  discretion  ;*^  and  this  not- 
withstanding the  provisions  of  the  Act  of  1892^°  relative  to 
the  effect  of  a  jury  trial  in  proceedings  touching  the  probate 
of  wills.''^  But  on  an  appeal  from  a  decree  denying  probate 
upon  the  finding  of  a  jury  that  the  contested  writing  was  not 
the  will  of  the  testator,  because  it  was  the  product  of  undue 
influence,  the  appellate  court  will  carefully  scrutinize  the  ver- 
dict of  the  jury  before  reaching  a  result  not  in  accord  there- 
with.^- Objections  addressed  to  the  discretion  of  the  circuit 
judge  and  overruled  by  him,  or  objections,  which,  if  raised  at 
all,  should  have  been  raised  in  the  circuit,  are  no  ground  for 
reversing  the  decree  of  the  orphans'  court. ^^ 

If  the  evidence  taken  at  the  circuit  has  not  been  reduced  to 
writing,  it  can  be  taken  anew  in  the  Prerogative  Court,  and 
other  testimony   than   that   produced   below   admitted.^* 

COSTS  AND  COUNSEL  FEES. 
Statutory  Provisions. 

In  causes  respecting  the  probate  of  a  will,  or  of  a  codicil 
to  a  will,  if  probate  be  refused,  the  court  may  order  the  costs 

^^Rusling  V.   Rusling.   35   N.  J.  s^gchuchhardt    v.    Schuchhardt, 

Eq.,  120.     Affirmed.  36  N.  J.  Eq.,  62  N.  J.  Eq.,  710. 

603.     Kitchell  V.  Beach,  35  N.  J.  ^sYoumans    v.    Petty,    33    N.   J. 

Eq.,  446.     Smith  v.  Smith,  48  N.  Eq.,   532. 

J.  Eq.,  566.  5*Rusling  v.   Rusling,   35   N.  J. 

6op.  L.  1892,  p.  28.  4  Comp.  Stat.,  Eq.,  120.     Affirmed,  36  N.  J.  Eq., 

5873,  sec.  37-  603. 

^^Sanderson  v.  Sanderson,  52  N. 
J.  Eq.,  243. 


Contested  Probate.  231 

and  expenses  of  the  litigation  to  be  paid  by  the  person  or  per- 
sons propounding  the  will  or  codicil,  or  to  be  paid  out  of  the 
estate  of  the  deceased;  but,  if  probate  be  granted,  the  court 
shall  order  the  party  or  parties  contesting  such  will  or  codicil 
to  pay  the  costs  and  expenses  of  the  litigation,  unless  it  shall 
appear  to  the  court  that  the  person  or  persons  contesting  such 
will  or  codicil  had  reasonable  cause  for  contesting  the  validity 
of  the  same,  or  shall  not  have  offered  on  the  trial  or  hearing, 
any  evidence  other  than  the  subscribing  witnesses  to  the  will 
or  codicil ;  and  in  case  it  shall  appear  to  the  court  that  the 
person  or  persons  contesting  such  will  or  codicil,  had  reason- 
able cause  for  contesting  the  validity  thereof,  the  court  may 
order  that  the  cost  and  expenses  of  the  litigation,  as  well  on 
the  part  of  such  contestant  or  contestants  as  on  the  part  of 
the  person  or  persons  propounding  such  will  or  codicil  for 
probate,  be  paid  out  of  the  estate  of  the  deceased.^^ 

Historical  Sketch  of  Legislation. 

The  practice  which  obtained  previous  to  the  Act  of  1855^^ 
was  to  charge  the  entire  costs  of  both  parties  to  a  contest  over 
the  validity  of  a  will  upon  the  estate ;  but  by  the  statute  of 
1855,  it  was  enacted  that  if  probate  was  granted,  the  costs  of 
both  parties  should  be  paid  by  the  caveator,  except  in  cases 
where  no  evidence  other  than  that  of  the  subscribing  witnesses 
was  offered  by  such  contestant.  In  1861,^'  it  was  enacted  that 
if  probate  was  granted,  and  caveator  had  offered  other  evidence 
than  that  of  the  subscribing  witnesses,  the  court,  if  it  ap- 
peared that  such  caveator  had  "reasonable  cause  therefor," 
might  make  such  decree  respecting  the  costs  and  expenses  as 
could  have  been  made  prior  to  1855.^* 

In  General. 

Costs  and  counsel  fees  were  not  recoverable  at  common  law ; 
they  are  purely  the  creatures  of  statute.'^'-*    It  therefore  follows 

s^Orphans'  Court  Act,  sec.  197.  ^sgcction  197,  supra,  was  cnact- 

3  Comp.  Stat.,  3885.  ed  .in    its    present    form    in    1876, 

sBNix.  Dig.  (4th  Ed.),  651,  p.  60.  (Rev.   791,   par.    177). 

"Nix.   Dig.    (4th    Ed.),   p.   656,  ^oLehigh    Valley    R.    R.    Co.    v. 

par.  86.  McFarland,  44  N.  J.  L.,  674. 


232  Probate  Law  and  Practice. 

that  the  only  power  of  the  orphans'  court  to  allow  costs  and 
counsel  fees  must  flow  from  some  statute  granting  that  power.^"' 
Thus,  the  power  to  impose  a  counsel  fee  as  part  of  the  ex- 
penses and  costs  of  litigation  upon  the  estate  of  a  decedent  is 
derived  solely  from  the  provisions  of  section  197  of  the  Or- 
phans' Court  Act,**^  and  is  thereby  limited  to  cases  of  litigation 
arising  on  a  contest  respecting  the  validity  of  a  will  offered 
for  and  admitted  to  probate.  The  orphans'  court  has  no  power 
to  order  proctors'  fees  to  be  paid  out  of  the  estate  of  the  de- 
ceased in  proceedings  to  open  the  probate  of  a  will  on  the 
ground  that  some  of  the  next  of  kin  had  not  been  cited  on  the 
application  for  probate,  and  that  the  withdrawal  of  a  contest 
had  been  induced  by  fraud.®- 

Under  section  197  of  the  Orphans'  Court  Act,*^^  the  court  is 
authorized  to  include  counsel  fees  to  both  sides  as  part  of  the 
costs  and  expenses  of  the  litigation  f*  and  in  a  will  contest 
initiated  by  a  caveat,  where  persons  in  interest  other  than  the 
caveator  and  proponent  have  appeared  and  taken  part  in  the 
controversy,  it  is  lawful  to  allow  fees  to  counsel  representing 
these  proper  parties,  as  well  as  to  those  who  represent  the 
necessary  parties ;  in  other  words,  the  controversy  being  in- 
augurated, all  parties  who  lawfully  participate  in  it  have  an 
equal  standing  before  the  court,  and  an  equal  claim  to  its  con- 
sideration.®^ But  to  entitle  a  party  to  costs,  he  must  have  some 
interest  in  the  contest.  A  caveatrix  who,  if  she  had  succeeded 
in  invalidating  some  bequests,  would  have  derived  no  benefit 
therefrom,  is  not  entitled  to  costs.*'® 

Charges  of  Expert  Witnesses. 

The  charges  of  an  expert  produced  by  one  of  the  parties  to 
a  will  contest,  without  previous  authority  therefor  from  the 
court,  will  not  be  allowed  from  the  estate  of  the  decedent.     In 

eoSmith  v.  McDonald,  69  N.  J.  e^Bioren  v.  Nesler,  76  N.  J.  Eq., 

Eq.,  765.     Affirmed,  71  N.  J.  Eq.,       576.    Kayhart  v.  Whitehead,  77  N. 

261.  J.   Eq.,   12-15. 

«iPage  230,  supra.  «5Bioren  v.  Nesler,  76  N.  J.  Eq., 

«2Meyer's   Case,   71    N.   J.  Eq..      576. 

724-  66\Yaij-,  y    Bruere,  53  Atl.  Rep., 

s^Page  230,  supra.  822. 


Contested  Probate.  233 

the  case  of  Sanderson  z'.  Sanderson,^''  it  was  held  that  it 
would  establish  an  unwise  precedent  to  mulct  a  decedent's 
estate  with  the  charges  of  such  witnesses,  and  that,  if  it  be 
necessary  to  have  the  assistance  of  experts  whose  charges  are 
to  be  borne  by  the  estate,  their  production  should  be  au- 
thorized, and  they  should  be  chosen  by  the  court  after  hearing 
the  parties  to  the  contest. 

Effect  of  Testamentary  Provisions. 

Where  the  will  provides  that  if  any  of  the  legatees  attempt 
to  prevent  the  probate  of  the  will  they  shall  pay  all  expenses 
of  both  sides,  it  has  been  held  that  the  condition  is  good,  and, 
a  caveat  having  been  filed,  that  costs  of  probate  should  be  paid 
by  the  caveators.*'^ 

When  Litigation  Unnecessarily  Protracted. 

Where  testimony  in  opposition  to  the  probate  of  a  wmII  is 
protracted  to  an  unnecessary  extent,  costs  which  would  other- 
wise have  been  given  will  be  denied,^''  and  so  where  the  litiga- 
tion is  needlessly  protracted  and  expensive.'"  So  where  in  a 
cause  respecting  the  probate  of  a  will  the  validity  of  the  will  is 
not  questioned,  but  probate  is  resisted  on  other  grounds,  and 
is  granted,  the  costs  and  expenses  of  litigation  will  not  be 
charged  upon  the  testator's  estate.'^ 

Costs  of  Proponent. 

An  executor  propounding  a  will  for  probate,  acting  in  good 
faith  and  without  proof  of  fraud,  is  entitled  to  costs  out  of  the 
estate,  whether  probate  be  granted  or  refused ;'-   but  if  a  will 

6-52   N.  J.   Eq.,   243-255.  7iBurr   v.    Burr.    53    N.   J.    Eq.. 

c«Hoit  V.  Hoit,  42  N.  J.  Eq.,  388,  627. 

reversing  S.  C,  40  N.  J.  Eq..  478.  '^Perrine  v.  .\pplegate.  14  N.  J. 

Kayhart   v.   Whitehead,   77   N.   J.  Eq.,   531.     Boylan   v.   Meeker,    15 

Eq.,    12.  N.    J.    Eq.,    310.      Whitenack    v. 

eaCoHins  v.  Townley,  21    N.  J.  Stryker,  2  N.  J.  Eq.,  8.     Day  v. 

Eq.,  353.    In  re  Wintermute,  27  N.  Day,  3  N.  J.  Eq.,  55o,  but  see  Skill- 

J.   Eq.,   447.     Affirmed,   28   N.   J.  man    v.    Lanehart.    73    N.   J.   Eq., 

Eq.,  437.  351- 

^oMallett   V.    Bamber,   33   N.   J. 
Eq.,    253. 


234  Probate  Law  and  Practice. 

is  offered  for  probate  by  a  legatee  or  party  interested,  other 
than  the  executor,  he  will,  if  unsuccessful,  be  condemned  in 
costs,  unless  he  merely  interrogates  the  witnesses  to  the  will." 

Costs  of  Caveator  if  Probate  Denied. 

If  probate  be  denied,  the  party  contesting  the  validity  of  the 
will  is  entitled  to  costs  out  of  the  estate.'* 

COSTS  OF  CAVEATOR  WHEN  PROBATE  GRANTED. 

Where  Only  Subscribing  Witnesses  Are   Called. 

The  general  rule  is  well  settled  that  the  next  of  kin  or  legatee 
under  a  former  will  is  entitled  to  public  and  full  probate  of  a 
will  by  the  subscribing  witnesses.  He  will  not,  therefore,  be 
condemned  in  costs  for  requiring  such  probate,  if  he  merely 
interrogate  the  witnesses  produced  in  support  of  it,  unless  his 
conduct  be  clearly  vexatious."^ 

When  Evidence  Other  Than  That  of  Subscribing  Wit- 
nesses Offered. 

Although  the  allowance  of  the  costs  and  expenses  and  counsel 
fees  of  the  caveators  against  the  probate  of  a  will  is,  by 
statute,'*"'  discretionary  with  the  court,  yet  when  there  exist  no 
reasonable  grounds  for  contesting  such  probate  or  the  litigation 
is  needlessly  protracted  and  expensive,  such  allowance  should 
be  denied.''^ 

If  the  party  contesting  the  will  "have  no  reasonable  cause" 
therefor,  he  must  pay  the  costs  of  both  parties;  if  he  have 
reasonable  cause,  that  fact  may,  in  the  discretion  of  the  court, 
exempt  him  from  the  payment  of  costs  to  the  successful  party.'* 
So  where  probate  of  a  will  is  resisted  upon  an  immaterial  issue 

"Perrine  v.  Applegate,  14  N.  J.  "Alallett   v.   Bamber,   33   N.   J. 

Eq-.  531.  Eq..   253. 

'^Perrine  v.  Applegate,  14  N.  J.  "sPerrine  v.  Applegate,  14  N.  J. 

Eq-.  531.  Eq.,   531.     Mallett  v.   Bamber,  33 

"Perrine  v.  Applegate,  14  N.  J.  N.  J.   Eq.,  253.     In    re    Sebring's 

Eq.,  531.    Orphans'  Court  Act,  sec.  Will,     93     Atl.,     686.       Orphans' 

197,  p.  230,  supra.  Court  Act,  sec.  197,  p.  230,  supra. 

""Orphans'  Court  Act,  sec.  197, 
p.  230,  supra. 


Contested  Probate.  235 

under  misapprehension  of  the  law.  in  which  misapprehension 
the  proponent  shares,  costs  will  not  he  charged  upon  the  es- 
tate;'''  and  so  where  testator  was  twenty-four  years  of  age,  of 
sound  mind,  unmarried  and  childless  and  without  brother  or 
sister,  and  had  for  nine  years  resided  at  the  home  of  a  friend, 
to  whose  daughter  he  devised  his  estate,  there  being  no  evidence 
of  undue  influence,  caveator's  costs  were  not  allowed  from  the 
estate.*^  When  probate  is  granted,  if  the  party  contesting  the 
validity  of  the  will  sets  up  insanity  or  calls  witnesses  other 
than  the  subscribing  witnesses  of  the  will,  he  may  be  required, 
in  the  discretion  of  the  court  to  pay  costs  to  the  opposite 
party.*^  And  so  where,  in  a  will  contest  on  the  ground  of 
lack  of  testamentary  capacity,  it  was  shown  that  the  contest- 
ant had  so  acted  in  a  business  transaction  with  the  testator  as  in 
effect  to  recognize  his  contractual  capacity,  and  he  made  no 
attempt  to  deny  or  disprove  such  action,  but  nevertheless  con- 
tinued the  contest,  he  was  held  not  entitled  to  counsel  fees.^- 

Where  it  cannot  be  said  that  a  will  contest  is  without  merit, 
an  allowance  of  a  counsel  fee  to  a  party  to  the  contest  is 
proper  ;*^  and,  in  an  exceptional  case,  when  strong  and  well- 
founded  doubts  exist  as  to  the  mental  capacity  of  the  testator, 
and  with  respect  to  the  force  and  character  of  the  influence 
under  which  the  testamentary  act  was  performed,  the  caveators 
are  entitled  to  their  costs  and  reasonable  counsel  fees  f*  but  it 
is  only  in  an  extreme  case  that  costs  will  be  allowed  to  an  un- 
successful party  contesting  a  will.-^ 

The  habitual  use  of  morphine  by  the  testatrix  constitutes 
"reasonable  cause"  for  contesting  the  validity  of  the  will,  and 
justifies  the  court  in  ordering  that  costs  of  litigation  be  paid 
out  of  the  estate.-'*  So  where  testator  was  of  great  age  w^hen 
he  executed  his  will  leaving  the  bulk  of  his  property  to  one 

T»Burr    V.    Burr,    53    N.   J.   Eq.,  214.     Hollinger    v.    Syms,    37    N. 

627.  J.  Eq.,  221.     Affirmed,  ib.,  628. 

«oHiggins  v.  McQuirk,  61  N.  J.  «^hi  re  Eddy,  33  N.  J.  Eq..  574- 

Eq.,  613.  ssperrine    v.    Applegate,    14    N. 

siPerrine  v.  Applegate,  14  N.  J.  J.    Eq.,    53i-      hi    re    Wintcrmutc. 

Eq.,   531.  27   N.  J.   Eq..   447-     Affirmed.   28 

82Grant  v.  Stamler,  68  N.  J.  Eq.,  N.  J.  Eq.,  437- 

555.  »«Frost  V.  Wheeler,  43  N.  J.  Eq., 

''■■'Hilyard  v.  Wood,  71  N.  J.  Eq..  573- 


22^6  Probate  Law  and  Practice. 

child,  with  whom  he  had  Hved  for  years,  his  other  children 
have  the  right  to  require  it  to  be  clearly  proved  that  he  ex- 
ecuted the  will  understanding  that  it  was  his  testamentary 
act  f'  and  so  in  a  question  of  fraud  in  the  execution  of  a  will, 
where  there  were  reasonable  grounds  for  the  action  of  the 
caveators  in  contesting  the  will,  their  costs  and  expenses,  in- 
cluding proper  counsel  fees,  must  be  allowed  out  of  the  estate.*^ 

Payment  of  Costs. 

Where  a  will  is  contested  and  sustained,  and  costs  and 
counsel  fees  allowed  to  both  parties,  in  paying  the  costs  and  ex- 
penses, the  executors  should  first  charge  them  upon  the  residu- 
ary estate,  and  make  up  the  deficiency  out  of  the  legacies  to 
the  caveators.  If  any  further  deficiency,  the  other  legacies 
must  abate  proportionately.^^ 

s^Collins  V.  Townley,  21  N.  J.  J.  Eq.,  463-472.  Reversed,  21  N. 
Eq.,  353-  J.  Eq.,  561. 

s^In  re  Vanderveer's  Will,  20  N.  ^^Stackhouse  v.  Horton,  15  N.  J. 

Eq.,  202-232. 


CHAPTER  XIV. 
NUNCUPATIVE  WILLS. 

In  General. 

A  nuncupative  will,  says  Swinburn,  is  when  a  testator,  with- 
out any  waiting,  doth  declare  his  will  before  a  sufficient  number 
of  witnesses.^ 

Nuncupative  wills,  as  a  rule,  are  not  favored  by  the  courts, 
for  the  very  obvious  reason  that  they  are  at  best  uncertain  pro- 
ductions, depending  upon  the  attention,  intelligence,  memory, 
and  honesty  of  those  who  surround  a  dying  testator.  Not  only 
may  the  remembrance  of  language  be  defective,  but  its  in- 
tended meaning  may  be  misapprehended  and,  indeed,  loose  ex- 
pressions of  desire  may,  through  stupidity  or  dishonesty,  be 
fabricated  into  a  testamentary  act,  where  such  an  act  was  not 
intended." 

In  New  Jersey,  the  statute  concerning  nuncupative  wills, 
passed  in  1864,  re-enacts  almost  literally  the  provisions  relative 
to  nuncupative  wills  contained  in  the  statute  of  frauds.^  The 
term  "nuncupative  will,"  as  used  in  the  statute  of  frauds,  has 
always  been  held  by  the  English  courts  to  mean  a  will  not  com- 
mitted to  writing  by  the  direction  of  the  testator,  one  whose 
efficacy  depended  upon  its  being  declared  verbally  by  him  to  be 
his  will.  Directions  or  instructions  for  wills  reduced  to  writing 
by  the  testator,  or  by  some  other  person  by  his  direction,  have 
never  been  considered  as  nuncupative  wills,  but  have  uniformly 
been  treated  as  written  wills.* 

Nature  and  Essentials. 

It  is  essential  to  the  establishment  of  a  nuncupative  will  that 
it  shall  among  other  things  clearly  appear :    First,  that  at  the 

iSwinb.  Pt.  I,  s.  12,  pi.  I.     Go-  ^20  Car.,  2,  ch.  3. 

dolphin  Pt.,  I,  c.  4,  s.  6.  Mn  re  Hebden's  Will,  20  N.  J. 

^Male's  Case,  49  N.  J.  Eq.,  266-  Eq.,  473. 
275- 

237 


238  Probate  Law  and  Practice. 

time  of  uttering  the  words  relied  on  the  testator  had  a  pres- 
ent consistent  intention  that  the  very  words  uttered  should  con- 
stitute his  will,  and  that  the  witnesses  so  understood  his  lan- 
guage ;  second,  that  the  testator  by  his  own  language,  before 
pronouncing  the  will,  indicated  to  those  about  him,  or  to  some 
of  them,  that  they  were  to  witness  that  the  very  words  he  pres- 
ently uttered  were  to  constitute  his  last  testament.^ 

A  nuncupative  will  can  only  be  a  verbal  declaration  made 
in  the  presence  of  witnesses  called  on  to  witness  it,  and  not 
reduced  to  writing  by  direction  of  the  testator ;  he  must  intend 
at  the  time  that  the  verbal  declaration  so  declared  shall  be  his 
will.  The  very  essence  and  substance  of  the  matter  is  that  the 
testator  shall  intend  the  declaration  so  made  by  him  to  be  his 
will,  and  the  words  of  the  statute*^  require  this  construction ; 
they  are  "at  the  time  of  pronouncing  the  same  bid  the  persons 
present."  These  words  refer  to  the  publication,  or  the  pro- 
nouncing of  the  declarations  as  his  last  will  and  testament. 
This  is  a  formal  adoption  of  the  declaration  as  his  last  will, 
not  a  postponing  to  a  future  execution  of  the  adoption  of  it 
It  follows,  therefore,  that  where  a  will  was  drawn  by  an  at- 
torney for  the  purpose  of  being  executed  as  a  written  will, 
some  hours  before  the  testator's  death,  pursuant  to  his  in- 
structions, but  its  execution  was  postponed  until  he  should  feel 
stronger,  although  he  asserted  that  his  will  was  as  it  had  been 
drawn,  and  testator  died  without  executing  such  will,  the 
paper  writing  in  question  cannot  be  admitted  to  probate  as  a 
nuncupative  will;^  and  so  where  the  will  remained  unexecuted 
solely  because  death  unexpectedly  intervened,  it  cannot  be  es- 
tablished as  a  nuncupative  will.® 

When  Valid. 

The  statute  provides  that  no  nuncupative  wall  shall  be  valid, 
unless  such  will  was  made  in  the  time  of  the  last  sickness  of 
the  deceased,  and  in  the  house  of  his  or  her  habitation  or  dwell- 

sMale's  Case.  49  N.  J.  "Eq.,  266.  ^n  re  Hebden's  Will,  20  N.  J. 

cRev.,    1877,   p.   1245.     4   Comp.       Eq.,  473. 
Stat.,  p.  5864.  sec.  13.  ^Male's    Case.    49    N.    J.    Eq., 

266. 


Nuncupative  Wills.  239 

ing,  or  where  he  or  she  hath  been  resident  for  the  space  of 
ten  days  or  more,  next  before  the  making  of  such  will,  except 
where  such  person  was  surprised  or  taken  sick,  being  from  his 
or  her  Own  home,  and  died  before  he  or  she  returned  to  the 
place  of  his  or  her  dwelling.^ 

Last  Sickness — What  Constitutes. 

It  is  well  established  that  the  term  "last  sickness"  in  the 
provisions  of  the  statute  is  not  to  be  considered  as  signifying 
merely  the  illness,  without  regard  to  its  duration,  which  termi- 
nated in  the  alleged  testator's  death,  but  as  meaning  in  ex- 
tremis.^" That  is,  the  law  contemplates  sudden  and  severe  ilb 
ness  immediately  preceding  physical  dissolution,  when  there  is 
neither  time  nor  opportunity  to  make  a  written  will  and  when, 
therefore,  if  there  is  to  be  a  will,  it  must  of  necessity  be  a 
merely  oral  one.  Blackstone  says  that  the  legislature  has  pro- 
vided against  any  frauds  in  setting  up  nuncupative  wills  by  so 
numerous  a  train  of  requisites  that  the  thing  itself  has  fallen 
into  disuse  and  is  hardly  ever  heard  of,  except  in  the  only  in- 
stance where  favor  ought  to  be  shown  it — when  the  testator  is 
surprised  by  sudden  and  violent  sickness.^  ^ 

A  nuncupation  can  only  be  sustained  when  it  is  the  result  of 
sheer  necessity.  If  the  decedent  could  have  made  a  testa- 
mentary disposition  in  the  manner  prescribed  by  statute,  a  nun- 
cupative disposition  will  be  of  no  avail.  It  follows,  therefore, 
that  where  a  decedent  lived  nine  days  after  making  a  nuncupa- 
tive will,  and  possessed  the  capacity  meanwhile  to  execute  a 
written  one,  and  could  have  made  such  written  will,  the  nun- 
cupative will  cannot  be  sustained. ^- 

Manner  of  Execution. 

The  statute  provides  that  no  nuncupative  will  heretofore 
made  or  hereafter  to  be  made,  shall  be  good,  where  the  estate 
thereby  bequeathed  shall  exceed  the  value  of  eighty  dollars, 

■'Rev..    1877,   p.    1245.     4   Comp.  Carroll  v.  Bonham,  42  N.  J.  Eq.. 

Stat.,  p.  5864,  sec.  13.  625. 

i*^Prince  v.  Hazleton,  20  Johns.,  112    Black.  Com.,  501. 

502.     Yarnall's  Will,  4  Ivawle,  46.  ^^Carroll   v.   Bonham,  42   N.   J. 


Eq.,  625. 


17 


^40  Probate  Law  and  Practice. 

unless  the  same  be  proved  by  the  oaths  of  three  witnesses  at  the 
least,  who  were  present  at  the  making  thereof,  nor  unless  it  be 
proved  that  the  testator  at  the  time  of  pronouncing  the  same, 
did  bid  the  persons  present,  or  some  of  them,  bear  witness,  that 
such  was  his  or  her  will,  or  words  to  that  effect.^ ^ 

The  statute  does  not  require  a  fixed  form  of  speech  for  the 
rogatio  testiiim.  Its  whole  scope  and  policy  is  to  perfect  a 
method  in  which  a  will  may  be  made  by  one  in  extremis  when 
there  is  not  time  to  resort  to  writing,  and  does  not  expect  that 
such  a  person  will  be  able  to  use  the  exact  words  of  the  statute. 
Hence  the  express  license  given  to  use  words  to  the  effect  of 
those  used  in  the  law  itself.  The  English  statute  did  not  ex- 
pressly require  that  the  bidding  of  the  persons  present  to  wit- 
ness should  be  by  words.  It  required  a  ''bidding,  or  to  that 
effect."  Our  statute  interpolates  after  the  word  "or,"  the 
word  "words,"  so  that  its  text  reads  "or  words  to  that  effect." 
Its  license  extends  only  to  a  change  from  the  words  of  the 
statute  to  expressions  of  the  testator  in  other  language  which 
have  the  same  meaning.  It  is  then,  as  has  been  said  above,  es- 
sential, to  the  validity  of  a  nuncupative  will  that  the  testator 
shall  by  his  own  language  indicate  to  those  about  him,  or  some 
of  them,  that  they  are  to  witness  that  the  very  words  he  is  about 
to  utter  will  constitute  his  last  testament, — the  main  purpose 
of  this  vitally  essential  requirement  being  to  provide  for  a 
marked  distinction  between  loose  declarations,  casual  conversa- 
tions and  admissions  as  to  testamentary  intentions,  extracted 
by  surrounding  friends,  or  instructions  for  a  formal  written 
testament,  and  the  testamentary  act  itself,  and  to  prevent  the 
former  from  being  passed  off  as  the  latter.  In  short,  its  office 
is  to  fix  a  clear  boundary  between  the  conditions  of  testacy  and 
intestacy.^* 

The  statute  requires  explicitly  that  the  testator  shall  call 
upon  those  present  to  bear  witness  that  such  is  his  will.  This 
is  clearly  a  different  act  from  pronouncing  it  to  be  his  will. 
It  is  distinguished  by  the  very  words  of  the  statute.  Simply 
saying,  "It  is  my  will,"  or  "I  wish  thus"  is  a  declaration  or 

"Rev.,  1877,  p.  1245.  4  Comp.  i^Male's  Case,  49  N.  J.  Eq.,  26(5 
Stat.,  p.  5864,  sec.  13.  at  page  277. 


Nuncupative  Wills.  241 

pronouncing  of  what  the  will  is.  This  the  statute  declares 
shall  not  be  sufficient,  but  that  the  testator  shall  go  through  the 
form  of  bidding  or  asking  those  present  to  witness  that  it  is 
his  will.  This  is  a  salutary  provision  against  fraud,  being 
efficacious  to  prevent  the  conversation  of  a  decedent,  not  meant 
to  go  into  effect  as  a  will,  from  being  proved  as  such.^^ 

Statute  Strictly  Construed. 

The  statute  was  so  justly  aimed  at  the  prevention  of  a  patent 
evil  that  since  it  came  into  existence,  the  courts,  in  view  of  its 
obvious  purpose,  and  to  give  effect  to  it,  have  demanded  strict- 
ness in  proof  of  nuncupative  wills  in  all  essential  points, 
whether  they  be  such  as  show  full  compliance  with  the  restraint 
of  the  statute,  or  such  as  show  facts  fundamentally  indispen- 
sable to  the  probate,  independently  of  the  statute.  Hence  the 
testamentary  capacity  of  the  decedent,  the  animus  testandi 
at  the  time  of  the  alleged  nuncupation  and  the  bidding  of  those 
present,  or  some  of  them,  to  bear  witness  that  such  was  his  will, 
or  to  that  eff'ect,  technically  called  the  rogatio  testiitm,  which  is 
evidence  both  of  the  animus  testandi  and  the  intent  to  nuncu- 
pate, are  required  to  appear  by  the  clearest  and  most  indis- 
putable testimony.^® 

Who  May  be  Witnesses. 

The  statute  provides  that  all  such  witnesses  as  are  and 
ought  to  be  allowed  to  be  good  witnesses  upon  trials  at  law, 
by  the  laws  of  this  state  shall  be  deemed  good  witnesses  to 
prove  any  nuncupative  will,  or  anything  relating  thereto. ^^ 

Time  for  Proving. 

After  six  months  passed  after  the  speaking  of  the  pretended 
testamentary  words,  no  testimony  shall  be  received  to  prove 
any  nuncupative  will,  except  the  said  testimony,  or  the  sub- 

^^In  re  Hebden's  Will,  20  N.  J.  ^"Rev.,    1877,   p.    1246,   4   Comp. 

Eq.,  473,  477-  Stat.,  p.  5865,  sec.  17. 

i^Male's    Case,    49    N.    J.    Eq.. 
266-273. 


242  Probate  Law  and  Practice. 

stance  thereof  were  committed  to  writing  within  six  days  after 
the  making  of  the  said  will.^^ 

When  Will  May  be  Probated— Notice. 

No  letters  testamentary  or  probate  of  any  nuncupative  will, 
shall  pass  the  seal  of  any  court,  till  fourteen  days  at  least 
after  the  decease  of  the  testator  shall  be  fully  expired ;  nor 
shall  any  nuncupative  will  be  at  any  time  received  to  be 
proved,  unless  process  hath  first  issued  to  call  in  the  widow  or 
next  of  kindred  to  the  deceased,  to  the  end  that  they  may  con- 
test the  same,  if  they  please. ^^ 

Written  Will  Not  to  be  Altered  by  Oral  Will. 

No  will  or  testament  in  writing,  concerning  any  goods  or 
chattels  or  personal  estate,  shall  be  repealed,  nor  shall  any 
clause,  devise  or  bequest  therein  be  revoked,  altered  or 
changed,  by  any  words  or  will  by  word  of  mouth  only,  except 
the  same  be  in  the  lifetime  of  the  testator,  committed  to  writ- 
ing, and  after  the  writing  thereof,  read  unto  the  testator,  and 
allowed  and  approved  of  by  him  or  her,  and  proved  to  be  so 
done  by  three  witnesses  at  the  least. -^ 

isRev.   1877,  p.   1246.     4  Comp.  -oRev.,   1877,  p.  1246.     4  Comp. 

Stat.,  p.  5865,  sec.  14.  Stat.,  p.  5865,  sec.  16. 

i9Rev.,   1877,  p.   1246.     4  Comp. 
Stat.,  p.  5865,  sec.   15. 


CHAPTER  XV. 

LOST  WILLS. 

Jurisdiction  of  Orphans'  Court. 

Section  2  of  the  Orphans'  Court  Act,^  which  declares  that 
the  orphans'  court  shall  have  "full  power  and  authority  to  de- 
termine all  controversies  respecting  the  existence  of  wills,"  and 
sections  174  et  seq.,-  which  provide  for  process  to  compel  the 
appearance  of  any  person  before  the  orphans'  court,  and  the 
making  of  orders  for  publication  and  for  the  enforcement  of 
decrees,  confer  power  upon  that  court  to  inquire  whether  a 
writing,  executed  as  a  will,  and  which  was  in  existence  unre- 
voked at  the  time  of  the  testator's  death,  has  been  since  lost 
or  destroyed,  and,  if  so,  to  prove  the  contents  thereof.^  The 
grant  of  "full  power  and  authority  to  hear  and  determine  all 
controversies  respecting  the  existence  of  wills"  fairly  includes 
this  power ;  and  this  function  is  not  essentially  different  from 
that  of  determining  whether  a  paper  writing  that  is  in  exist- 
ence has  been  revoked  in  whole  or  in  part.** 

Practice. 

The  orphans'  court  having  as  has  already  been  seen  no  juris- 
diction over  the  probate  of  wills  except  upon  an  issue  sug- 
gested by  the  surrogate.  It  follows  that  a  dispute  in  regard 
to  the  existence  of  a  will  must  originate  before  the  surrogate. 
A  convenient  practice  in  such  a  case  is  to  file  with  the  surrogate 
a  petition  reciting  that  the  decedent  is  alleged  to  have  died 
intestate  but  that  he  during  his  lifetime  made  and  executed  his 
will  which  has  inadvertently  been  lost  or  destroyed  whereby  a 
controversy  has  arisen  respecting  the  existence  of  a  will  and 
praying  that  the  surrogate  may  cite  all  persons  to  appear  in 

'Page  41,  supra.  *In    re    Cassidy,   80    N.   J.    Eq.. 

^See  p.  39.  supra.  163. 

3In    re    Cassidy,   80   N.    J.    Eq., 
163. 


243 


244  -        Probate  Law  and  Practice. 

the  orphans'  court.  The  petition  should  recite  the  names  of 
all  persons  in  interest  and  set  up  the  terms  of  the  will  alleged 
to  have  been  lost  or  destroyed  and  the  circumstances  attending 
its  loss  or  destruction. 

Upon  the  filing  of  such  a  petition  it  becomes  the  duty  of  the 
surrogate  to  issue  citations  to  all  persons  concerned,  that  is, 
to  all  persons  who  will  be  either  benefited  or  injured  by  the 
probate  of  such  lost  will,  requiring  them  to  appear  in  the  or- 
phans' court  on  a  day  therein  named  at  which  time  that  court 
will  hear  and  determine  the  controversy. 

Instruments  which  May  Be  Admitted  to  Probate. 

The  mere  proof  of  the  loss  or  destruction  of  a  will  does  not 
as  a  matter  of  course  let  in  the  party  to  give  secondary  evi- 
dence of  its  contents.  The  rule  is  that  he  who  voluntarily, 
without  mistake  or  accident,  destroys  primary  evidence,  thereby 
deprives  himself  of  the  right  to  produce  and  use  secondar}- 
evidence.^  The  execution  and  contents  of  a  lost  will  may  be 
established  by  evidence  aliunde;  but  the  proof  must  be  clear 
and  convincing.'^ 

If  the  destruction  of  a  will  was  accidental,  or  if  it  occurred 
without  the  agency  or  assent  of  the  party  offering  it,  secondary 
evidence  is  admissible ;  but  if  it  was  voluntarily  destroyed  by 
the  party,  secondary  evidence  of  its  contents  will  not  be  ad- 
mitted, until  it  be  shown  that  the  will  was  destroyed  under  a 
mistake,  and  until  every  inference  of  a  fraudulent  design  is  re- 
pelled.^ Where  an  adequate  motive  for  the  destruction  of 
a  will  is  assigned  by  the  party  seeking  to  establish  it,  and 
clearly  confirmed  by  the  evidence,  the  court  will  not,  upon 
mere  conjecture,  impute  an  inadequate  and  dishonest  mo- 
tive.® So,  where  a  will  was  accidentally  destroyed  without 
testatrix's  knowledge,  while  in  possession  of  her  attorney,  to 
whom  she  had  delivered  it  after  execution,  and  a  pencil  copy 
was  produced,  which  was  drafted  by  her  attorney  from  her  oral 

sWyckoff  V.  Wyckoff,   i6  N.  J.  'Wyckoff  v.  Wyckoflf,   i6  N.  J. 

Eq.,  401.  Eq.,  401. 

eCoddington  v.  Jenner,  57  N.  J.  sWyckoflf   *.  Wyckoff,  16  N.  J. 

Eq.,  528.    Affirmed.  60  N.  J.  Eq.,  Eq.,    401. 
447. 


Lost  Wills.  245 

instructions,  and  was  identified  by  him  as  the  pencil  copy  he 
made,  and  which  he  had  dehvered  to  another  attorney  in  his 
office,  who  drew  the  will  conformably  thereto,  and  delivered 
it  to  him  with  the  pencil  copy  on  the  next  day  at  the  place 
appointed  for  the  execution,  the  execution  being  witnessed,  at 
the  request  of  testatrix,  by  her  attorney  and  another  person 
who  was  called  in  for  that  purpose,  and  before  the  execution, 
the  attorney  compared  the  pencil  copy  with  the  will,  and  found 
it  to  be  correct,  it  was  held  sufficient  to  establish  the  will  ac- 
cording to  the  draft  produced,  and  to  authorize  the  probate  of 
the  draft.^ 

Where,  upon  an  application  to  establish  a  will  alleged  to  be 
lost,  it  appears  that  the  deceased  had  made  a  will  and  de- 
posited it  for  safekeeping  with  the  scrivener  who  drew  it,  and 
that  in  subsequent  conversations  between  the  testator  and  the 
scrivener  the  will  was  spoken  of  but  on  search  after  the  tes- 
tator's death  it  was  found  that  the  will  had  disappeared  with- 
out the  knowledge  of  the  depositary  who  believed  it  to  have 
been  clandestinely  taken,  and  there  is  no  evidence  that  tes- 
tator made  any  other  will  than  this,  the  presumption  is  that 
the  will  in  question  was  his  last  will.^° 

Evidence. 

In  order  to  establish  a  lost  will,  all  the  witnesses  to  the  will, 
if  within  the  power  of  the  court,  must  be  examined;  but  if 
either  of  the  witnesses  is  dead,  or  insane,  or  without  the  juris- 
diction of  the  court,  the  will  may  be  established  without  the 
evidence  of  such  witnesses  ;^^  and  the  contents  of  a  destroyed 
will  may  be  proved  by  the  .declarations  of  the  testator  re- 
garding the  same.^-  In  a  proceeding  to  establish  a  will  under  a 
charge  of  spoliation,  it  is  not  necessary  to  prove  that  the 
spoliation  was  committed  by  the  individual  charged  in  the 
petition,  or  to  show  by  whom  it  was  committed ;  it  is  enough 
if  the  fact  of  the  spoliation  be  established.^^ 

^Coddington  v.  Jenner,  57  N.  J.  i^Bailey  v.   Stiles,  2  N.  J.  Eq.. 

Eq.,  528.     Affirmed,  60  N.  J.  Eq.,      220. 
447.  i^Davenport  v.  Davenport,  67  N. 

lOHildreth  v.  Schillinger,  10  N.      J.  Eq.,  320. 
J.  Eq.,  196.  i3Bailey  v.  Stiles,  2  N.  J.  Eq.. 

220. 


246  Probate  Law  and  Practice. 

The  true  rule  is  that  a  will  may  be  established  upon  satisfac- 
tory proof  of  its  destruction  and  of  its  contents,  or  substance, 
whether  the  proof  of  its  destruction  be  by  one  witness,  or  by 
many;  but  the  evidence  must  be  clear,  satisfactory,  and  con- 
vincing.^* 

i^Wyckoff  V.  Wyckoff,  16  N.  J. 
Eq.,  401, 


PART  III. 


Executors,  Administrators  and  Trustees. 


CHAPTER  XVI. 
ADMINISTRATION. 

Necessity  for  Administration. 

Upon  the  decease  of  one  owning  personal  estate,  his  next  of 
kin  do  not  become  its  owners.  They  acquire  only  that  quali- 
fied equitable  right  to  distributive  shares  of  what  shall  remain 
after  payment  of  the  just  debts  and  funeral  charges  of  the  de- 
ceased and  the  expense  of  settling  his  estate  which  is  con- 
ferred upon  them  by  the  statute  of  distributions.  This  quaU- 
fied  equitable  right  can  only  be  worked  out  through  a  settle- 
ment of  the  estate  by  an  administrator  who  alone  has  the  title 
to  personalty  cast  on  him,  and  who  alone  is  competent  to  sue, 
either  at  law  or  in  equity,  to  reduce  the  personal  property  and 
rights  of  the  intestate  to  possession.^  So  the  vested  right  of  a 
legatee  is,  upon  his  death,  transmitted  to  his  personal  repre- 
sentatives who  alone  have  the  power  to  take  proceedings  to 
collect  the  legacy;  and  by  personal  representatives  are  meant 
his  executors  or  administrators.  Next  of  kin  of  a  decedent  are 
not  the  personal  representatives,  and  cannot  come  into  court 
representing  such  decedent. - 

Upon  the  appointment  of  an  administrator,  the  title  to  all  of 
the  personal  property  of  his  intestate  vests  in  him.  The  title 
to  an  intestate's  real  property,  on  the  other  hand,  vests  in  his 
heirs  at  law  by  operation  of  law.  This  paramount  title  of 
the  personal  representative  is  recognized  in  various  ways. 
Thus,  personal  property  of  an  intestate  is  not  subject  to  seizure 
and  sale  under  an  execution  issued  on  a  judgment  rendered 
against  the  decedent.^    So  next  of  kin,  heirs  and  creditors  can- 

iBuchanan  v.  Buchanan,  75  N.       ^Schouler  on  Executors,  sec.  23c,. 
J.  Eq.,  274.  Buchanan  v.  Buchanan,  75   N.  J. 

2Shaver  v.  Shaver,  i  N.  J.  Eq.,    Eq.,  274. 
437.     Buchanan   v.   Buchanan,   75 
N.  J.  Eq.,  274. 


249 


250  Probate  Law  and  Practice. 

not  in  their  own  names  prosecute  actions  at  law  or  suits  in 
equity  to  recover  the  unadministered  estate  of  a  decedent,  or  to 
collect  debts  or  other  choses  in  action  due  him.  The  title  to 
debts  owed  to  the  decedent  vests  in  his  executor  or  adminis- 
trator, upon  the  probate  of  his  will  or  the  granting  of  letters  of 
administration,  together  with  the  right  to  all  remedies  given  by 
law  for  their  recovery.  All  goods  and  chattels,  actions,  and 
commodities  which  were  of  the  testator,  in  right  of  action  or 
possession,  as  owned  at  the  time  of  his  death  pass  on  his  death 
to  his  executor  or  administrator.*  So  moneys  in  the  hands 
of  a  guardian  of  a  deceased  minor  do  not  pass  to  his  next  of 
kin,  but  to  the  representative  of  the  minor.  As  the  minor  is  in- 
capable of  making  a  valid  testamentary  disposition,  the  repre- 
sentative is  necessarily  an  administrator  and  to  him  the  guard- 
ian may  safely  pay  the  fimds  in  his  hands.  After  administra- 
tion, what  remains  may  then  be  distributed  to  those  to  whom 
the  fund  goes.^ 

Operation  of  Grant  of  Administration. 

The  grant  of  administration  operates  only  within  the  juris- 
diction where  it  is  granted.  It  gives  no  legal  right  to  collect 
debts  or  recover  the  possession  of  property  elsewhere.® 

When  Administration  Unnecessary, 

In  all  cases  where  the  total  value  of  the  real  and  personal 
assets  of  the  estate  of  any  intestate  shall  not  exceed  two  hun- 
dred dollars,  the  husband  or  widow,  as  the  case  may  be,  shall 
be  entitled  absolutely  to  the  same  without  administration  and 
free  from  the  lien  of  all  debts  of  such  intestate,  and  any  bank, 
building  and  loan  association,  or  other  corporation  or  any  per- 
son or  association  or  society  who  shall  have  in  its  or  his 
possession  any  of  the  assets  of  such  an  intestate  and  shall  pay 
or  deliver  the  same  to  his  or  her  husband  or  widow,  upon  the 

*Hayes  v.  Hayes,  45  N.  J.  Eq.,  ^Wilcox's    Case,   64   N.   J.   Eq., 

461.    Affirmed,  47  N.  J.  Eq.,  567.      322. 

Buchanan  v.  Buchanan,  75  N.  J.  ePisano  v.  Shanley  Co.,  66  N.  J. 

Eq.,  274.  Mathis  v.  Sears,  3  N.  L.,  i.  Normand  v.  Grognard,  17 
J-  L.,  594-  N.  J.  Eq.,  425.    Babbitt  v.  Fidelity 

Trust  Co.,  70  N.  J.  Eq.  651-656. 


Administration.  251 

making  and  execution  of  an  affidavit  setting  up  that  affiant  is 
the  husband  or  widow  of  such  an  intestate  and  that  the  value 
of  such  intestate's  real  and  personal  property  will  not  exceed 
two  hundred  dollars,  shall  be  forever  discharged  from  all 
claims  by  any  administrator  of  such  intestate  who  may  there- 
after be  appointed  or  by  any  other  person,  for  the  assets  so 
paid  or  delivered ;  and  this  notwithstanding  it  may  thereafter 
transpire  that  the  total  value  of  the  estate  of  such  intestate  did 
in  fact  exceed  the  sum  of  two  hundred  dollars.^ 

Jurisdiction — In  General. 

In  uncontested  cases  jurisdiction  over  the  grant  of  letters 
of  administration  is  vested  in  the  Ordinary^  or  in  the  surrogate 
of  the  county  where  intestate  resided  at  the  time  of  his  death/^^ 
or,  if  a  non-resident,  in  the  surrogate  of  the  county  wherein 
intestate  left  personal  property.^^  It  does  not  admit  of  doubt 
that  the  jurisdiction  of  the  orphans'  court  does  not  arise  in 
respect  to  the  right  of  administration,  except  upon  a  dispute 
appearing  which  ousts  the  surrogate  of  his  jurisdiction  and 
confers  it  upon  that  court.^  Where,  however,  a  disputed  will  is 
admitted  to  probate  by  the  orphans'  court  and  no  executor  is 
named  in  the  will,  or  the  executor  has  died  or  renounced,  the 
orphans'  court,  as  an  incident  to  its  jurisdiction  to  admit  the 
will  to  probate,  has  jurisdiction  to  appoint  an  administrator 
with  the  will  annexed,  to  execute  the  trusts  created  by  the  will 
which  the  orphans'  court  has  by  its  decree  established.^- 

GRANT  OF  LETTERS  BY  SURROGATE. 

Jurisdiction  of  Surrogate. 

The  statute  provides  that  the  surrogate  of  the  county  in 
which  the  deceased  shall  be  resident  at  the  time  of  his  death, 
shall  have  the  power  and  authority  to  grant  letters  of  adminis- 
tration on  the  estate  of  such  deceased,  in  all  cases  where  ad- 

"Orphans'   Court   Act,   sec.   170,  ^bOrphans'   Court   Act.   sec.   20. 

as  amended  by  P.  L.  1915.  P-  246.  p.  252,  infra. 

sp.  L.   1900,   p.  346,   sec.   I.     2  ^Russell's    Case,   64   N.   J.   Eq.. 

Comp.  Stat.,  1722,  sec.  76.  3I3-3I5-     In    re   Queen,  82   N.   J. 

soQrphans'  Court   Act,   sec.   26,  Eq.,   583. 

this  page,  infra.  i°In  re  Queen,  82  N.  J.  Eq.,  583- 


252  Probate  Law  and  Practice. 

ministration  may  legally  be  granted  thereon,  unless  a  dispute 
arises  as  to  the  right  of  administration,  in  which  case  he  shall 
issue  citations  to  all  persons  concerned  to  appear  in  the  or- 
phans' court  of  the  same  county,  which  court  shall  hear  and 
determine  the  matter  in  controversy." 

Nature  of  Jurisdiction. 

The  grant  of  administration  is  a  proceeding  in  rem  in  the 
strict  sense  of  that  term,  and  constitutes  the  person  to  whom 
it  is  granted  the  administrator,  whether  such  administration  be 
rightfully  or  wrongfully  granted.^-  The  only  question  which 
can  be  raised  is  whether  the  surrogate  had  jurisdiction ;  thus, 
if  the  supposed  intestate  was  not  dead,  or  if  letters  lawfully 
granted  to  some  one  else  were  in  existence,  the  grant  would  be 
void.^^  In  granting  letters  of  administration,  the  surrogate 
acts  in  a  judicial  capacity,  and  his  acts  can  only  be  reviewed  by 
appeal  to  the  orphans'  or  prerogative  court ;  they  cannot  be 
impeached  collaterally.^* 

ADMINISTRATION  UPON  ESTATES  OF  NON- 
RESIDENTS. 

Where  a  Non-Resident  Leaves  Property  in  This  State. 

If  any  person,  not  a  resident  within  this  state,  shall  die  or 
shall  have  heretofore  died  possessed  of  personal  property  or 
choses  in  action  within  this  state  or  the  evidence  of  which 
shall  be  in  the  hands  of  any  resident  of  this  state,  or  has  died 
or  shall  die  seized  of  any  real  estate  or  any  interest  therein  with- 
in this  state,  the  surrogate  of  the  county  in  which  such  real  es- 
tate or  interest  therein,  choses  in  action  or  evidences  thereof,  or 
personal  estate,  are  situate,  upon  application  and  proof  to  his 
satisfaction  that  such  decedent  died  intestate,  shall  issue  let- 
ters of  administration  upon  the  estate  of  such  decedent  to  the 

iiOrphans'    Court   Act,   sec.   26.  Eq.,  135.    Quidort  v.  Pcrgeaux,  18 

3  Comp.  Stat.,  3822.    As  to  juris-  N.  J.  Eq.,  472-477. 

diction   of  the   surrogate   after   a  ^^Quj^ort  v.  Pergeaux,  18  N.  J. 

contest  has  arisen,  see  "Probate  of  Eq.,  472-477,  and  see  "Validity  of 

Wills — Jurisdiction       of       Surro-  Acts  of   Surrogate,"  p.  58,  supra, 

gate,"  p.  195,  supra.  i-«See  "Validity  of  Acts  of  Sur- 

i^Annin  v.  Vandoren,   14  N.  J.  rogate,"  p.  58,  supra. 


Administration.  253 

administrator  of  such  decedent,  or  to  any  person  who  would  be 
entitled  to  administration,  in  case  the  decedent  had  resided 
in  this  state  at  the  time  of  his  death ;  if  any  executor  or  ad- 
ministrator of  a  non-resident  decedent  shall  neglect  for  the 
space  of  sixty  days  after  the  death  of  such  decedent  to  make 
application  in  this  state  for  letters  testamentary  or  of  adminis- 
tration upon  or  in  respect  to  such  decedent's  estate,  then  upon 
the  application  of  any  person  alleging  himself  or  herself  to 
have  any  debt  or  legal  claim  against  such  decedent,  which,  by 
the  laws  of  this  state,  survives  against  the  personal  repre- 
sentatives of  parties  deceased,  the  surrogate  may  issue  letters 
of  administration  to  such  person  as  he  may  select,  either  cum 
testameiito  anne.ro  or  otherwise,  as  the  circumstances  of  the 
case  may  require ;  in  case  application  is  made  under  this  sec- 
tion by  any  one  except  the  executor  or  administrator,  letters 
shall  only  be  granted  upon  such  notice  to  the  executor  or  ad- 
ministrator as  the  surrogate  may  prescribe. ^^ 

Contests  as  to  Non-Residence  to  be  Determined  by  Sur- 
rogate. 

Section  29  of  the  Orphans'  Court  Act,^''  confers  jurisdic- 
tion upon  the  surrogate  over  the  grant  of  letters  of  administra- 
tion on  the  estates  of  persons  who  have  died  non-residents  of 
this  state.  A  contest  over  the  right  of  administration  in  such 
cases  will  not  oust  the  surrogate  of  jurisdiction,  or  confer 
jurisdiction  in  the  first  instance  on  the  orphans'  court,  as  in 
the  case  of  deceased  residents  of  the  state  under  the  provisions 
of  section  26  of  the  Orphans'  Court  Act.^^  When  the  statute 
expressly  provides,  in  respect  to  applications  for  administra- 
tion upon  the  estates  of  deceased  persons  who  at  death  were 
residents  of  this  state,  a  particular  course  of  procedure,  and 
by  express  words  grants  jurisdiction  to  the  orphans'  court,  and 
in  the  same  connection  gives  authority  to  the  surrogate  in 
respect  to  applications  for  administration  upon  the  estates  of 
deceased  persons  who  were  not  at  their  death  residents  of  this 
state  and  refrains  from  giving  any  authority  to  the  orphans' 

i^Orphans'   Court   Act,   sec.  29.         '''Page  252,  supra. 
3  Comp.  Stat.,  3823.  '^Page  251,  supra. 


254  Probate  Law  and  Practice. 

court  to  deal  with  such  an  application,  it  is  clear  that  there  can 
be  no  implication  that  authority  has  been  conferred  upon  that 
court  in  the  latter  class  of  cases.  The  foreign  residence  of  a 
decedent  at  death  being  a  jurisdictional  fact  essential  to  the 
jurisdiction  of  the  surrogate,  if  persons  in  interest  deny  the 
foreign  residence  the  surrogate  is  impliedly  authorized  to  de- 
termine the  residence,  subject  to  an  appeal  to  the  orphans' 
court  under  section  201   of  the  Orphans'  Court  Act.^^ 

Assets  Within  County  Necessary. 

Probate  courts  have  no  jurisdiction  to  grant  administration 
upon  the  estate  of  a  non-resident  decedent  who  left  no  prop- 
erty within  the  state. ^^  Letters  of  administration  upon  the 
estate  of  a  non-resident  decedent  may,  however,  be  granted 
in  this  state,  if  assets  of  such  decedent  be  brought  into  this 
state  after  his  death  f^  but  if  assets  are  brought  into  the 
state  after  decedent's  death  for  a  merely  temporary  purpose, 
it  will  not  be  sufficient  to  confer  jurisdiction  upon  the  courts 
of  this  state  to  grant  administration  here.-^ 

A  debt  due  to  a  non-resident  intestate  is  sufficient  estate 
to  authorize  administration  in  the  county  where  the  debtor 
resides,--  and  this  even  though  it  subsequently  appears  that 
such  claim  is  invalid  and  incapable  of  being  enforced;-^  and  a 
debt  due  to  a  resident  of  another  state  from  a  person  who  re- 
moves into  this  state  after  such  creditor's  death  will  authorize 
the  grant  of  administration  in  the  county  to  which  such  debtor 

isPage      74,      infra.       Russell's  ^ichristy  v.  Vest,  36  Iowa,  285. 

Case,  64  N.  J.  Eq.,  313.  Kohler   v.    Knapp,    i    Bradf.    (N. 

i^Pinney     v.     McGregory,     102  Y.  Sur.),  241. 

Mass.,   186.     Crosby  v.  Leavitt,  4  ^a^ppeal    of    Picquet,    5    Pick. 

Allen    (Mass.),   410.    VanGiessen  (Mass.),  65.     Pinney  v.  McGreg- 

V.  Bridgford,  83  N.  Y.,  348.  ory,    102    Mass.,    186.      Merill    v. 

-°Robinson  v.  Robinson,  11  Ala.,  New  England   Life   Ins.   Co.,    103 

947.     Pinney   v.    McGregory,    102  Mass.,  245.     Beers  v.  Shannon,  7^ 

Mass.,    186.      Stearns    v.    Wright,  N.  Y.,  292. 

SI  N.  H.,  600.     Johnston  v.  Smith,  23Sullivan  v.   Fosdick,    10  Hun. 

25  Hun.   (N.  Y.),   171.  (N.    Y.),    173. 


Administration.  255 

removed.-*     Xo  particular  amount   of  goods  is  necessary  to 
confer  jurisdiction.'-' 

ADMINISTRATION  WHERE  THERE  ARE  ASSETS  IN 
TWO  STATES. 

In  General. 

The  grant  of  administration  on  the  personal  estate  of  a 
decedent  is  vested  primarily  in  the  courts  of  his  domicile.  Ad- 
ministration taken  out  in  another  state  is  ancillary  to  the  ad- 
ministration in  the  forum  of  the  domicile.  Such  an  adminis- 
tration depends  upon  the  fact  that  there  is  property  within  the 
foreign  jurisdiction  to  be  administered  upon  and  debts  there  to 
be  paid,  or  is  granted  for  the  purpose  of  collecting  the  property 
of  the  deceased,  realizing  upon  it,  and  remitting  the  proceeds 
to  the  primary  administrator.-^'  In  strictness,  the  grant  of  ad- 
ministration operates  only  within  the  jurisdiction  where  it  is 
granted ;  it  gives  no  legal  right  to  collect  debts  or  recover  the 
possession  of  property  elsewhere.-'  It  follows,  therefore,  that 
where  intestate  leaves  assets  in  two  states,  administration  may 
be  rightfully  granted  in  both  states,  although  the  right  of  suc- 
cession to  the  i)ersonal  estate  is  to  be  regulated  by  the  law  of 
the  domicile  ;-*  and  each  grant  of  administration  operates  only 
within  the  jurisdiction  in  which  it  is  granted. -^ 

POWERS  AND  DUTIES  OF  FOREIGN  REPRESENTATIVE. 

In  General. 

The  general  rule  is  well  settled  that  an  executor  or  adminis- 
trator cannot  in  liis  re])resentative  capacity  maintain  any  action, 

■-'* Finney     v.     McGregory,      102  J.    Eq.,    425.      Bahl)itt    v.    Fidelity 

Mass.,  186.    New  England  Mutual  Trust  Company,  70  X.  J.  Eq.,  651- 

bife  Ins.  Co.  v.  Wood  worth,   11 1  656. 

U.   S.,   138.     Smith   V.   New   York  -"^Warnum  v.  Cann),  13  N.  J.  T,., 

Life   Ins.  Co.,  57  Fed.  Rep.,   133.  3^6.      Banta   v.    Moore.    15    X.    J. 

^sPinne}'     v.     McGregory,      102  ]•".()..   97.      Normand    v.    Grognard, 

.Mass.,  186.    Harrington  v.  Brown,  17    N.    J.    Eq.,    425.      Jenkins    v. 

5  Pick.  (Mass.),  519..  Guarantee  Trust  Comi)any.  53  N. 

^^Pisano  v.  Shanley  Co..  66  X.  J.  Eq.,  194-202. 

J.  L.,  I.  -"Normand   v.   Grognard,   17   N. 

-^Normand   v.  (Grognard,    17   X.  J.   Eq.  425. 
18 


256  Probatk  Law  and  Practice. 

suit  or  proceeding,  either  at  law  or  in  equity,  in  the  courts  of 
any  sovereignty  other  than  that  under  whose  laws  he  was  ap- 
l)ointed  or  has  qualihed,  without  obtaining  an  ancillary  grant 
of  probate  or  letters  from  the  court  of  probate  of  such  other 
sovereignty,  unless  power  to  sue  in  the  foreign  jurisdiction  has 
been  conferred  upon  him  by  statute.^" 

When  a  foreign  administrator  is  appointed  in  another  state, 
his  appointment  is  ancillary  to  the  administration  in  the  place 
of  domicile.  For  property  which  he  obtains  within  the  juris- 
diction where  his  letters  are  granted,  after  payment  of  debts 
in  that  locality,  he  accounts  to  the  administrator  at  the  domicile 
of  the  deceased.^^  If  the  fund  in  the  hands  of  the  foreign  ad- 
ministrator is  needed  for  the  purpose  of  due  administration 
in  the  place  of  domicile,  the  mode  of  reaching  it  would  be  to  re- 
quire its  transmission  or  distribution,  after  all  claims  against 
the  foreign  administration  had  been  ascertained  and  settled. 
The  distribution  of  the  fund  must  be  regulated  by  the  law  of 
the  domicile  of  the  intestate,  but  w^hether  that  distribution  shall 
be  made  by  the  tribunals  of  the  several  states  by  which  the 
letters  are  granted,  or  whether  the  balance  for  distribution 
shall  be  transmitted  by  the  foreign  administrator  to  the  place  of 
domicile,  there  to  be  distributed,  depends  upon  the  circum- 
stances, and  rests  in  the  sound  discretion  of  the  tribunal  before 
which  the  account  of  the  foreign  administrator  is  brought  for 
settlement.  Where  parties  interested  in  the  distribution  reside 
in  the  state  where  foreign  administration  is  granted,  the  fund 
will  be  retained  and  distributed  there. ^- 

Payment  of  Debts  to   Foreign   Representative. 

It  is  provided  by  statute  that  any  payment  by  any  resident 
or  citizen  of  this  state  to  any  executor  or  administrator  ap- 
pointed by  letters  obtained  in  another  state  or  territory  of 
the  United  States  or  District  of  Columbia,  of  or  on  account 
of  any  debt  due  to  his  or  her  testator  or  intestate,  made  before 

3'iNormand   v.   Grognard    17   N.  -iPisaiio  v.   Shanley  Co..  66  N. 

J.  Eq.,  425.    Porter  v.  Trail,  30  N.  J.  L.,  1-7. 

J.    Eq..    106.      Babbitt    v.    Fidelity  32]v^ormand  v.  Grognard,   17  N. 

Trust  Company,  70  N.  J.  Eq.,  651-  T-  Eq.,  425-427. 
6;6. 


Administration.  257 

letters  testamentary  or  of  administration  shall  be  actually 
ij^ranted  in  this  state,  shall  be  as  valid  and  ettectual  as  it  made 
to  an  executor  or  administrator  duly  appointed  in_  this  state  ; 
and  such  foreign  executor  or  administrator  mav,  before  any 
letters  shall  be  actually  granted  in  this  state,  release  and  dis- 
charge any  lands  or  other  security  from  any  mortgage,  judg- 
ment or  other  lien  or  incumbrance  which  was  held  by  his  or 
her  testator  or  intestate,  as  fully  and  to  the  same  effect  as  if  he 
or  she  had  been  duly  appointed  in  this  state.  ■' 

Foreign  Representative  May  Maintain  Suit  in  This  State. 

Any  executor  or  administrator  by  virtue  of  letters  obtained 
in  another  state  may  prosecute  any  action  or  sue  out  execu- 
tion upon  judgment  or  decree  in  any  court  of  this  state  as  if 
his  letters  had  been  granted  in  this  state  ;  provided,  that  such 
executor  or  administrator  shall  first  file  in  the  otihce  of  the 
register  of  the  prerogative  court  an  exemplified  copy  of  his  let- 
ters, and  upon  such  filing  may  bring  all  necessary  actions  in 
any  of  the  courts  of  this  state ;  j)rovided,  also,  that  security 
for  the  costs  may  be  required  from  such  executor  or  adminis- 
trator as  if  he  were  a  non-resident  of  this  state.'" 

1 

Letters  of  Foreign  Administrator  May   Be   Recorded. 

If  any  person  shall  desire  to  have  the  aj)i)ointment  of  any  ad- 
ministrator appointed  by  letters  obtained  in  another  state  or 
territory  of  the  United  States  or  District  of  Columbia  recorded 
in  this  state,  for  the  purpose  of  manifesting  the  authority  of 
such  administrator  to  release  or  discharge  any  lands  in  the 
state  from  any  mortgage,  judgment  or  other  lien  or  encum- 
brance which  was  held  by  his  or  her  intestate,  it  shall  be  law- 
ful for  any  surrogate  of  any  county  in  this  state  wherein  sucli 
land  shall  be,  upon  an  exemplified  copy  of  the  record  of  the 
appointment  of  .such  administrator  being  ])resented  to  him,  to 
record  the  same  and  file  the  said  copy  in  his  office,  and  such 
record  or  certified  copies  thereof  shall  be  recei\-ed  a^^  exideiice 
in  all  c(jurts  of  this  state."' 

■'''2  Comp.  Stat.,  2265,  sec.  19.  20.     For   power   of    surrogate    to 

3*2  Comp.  Stat.,  2265,  sec.  21.  record  record  of  foreign  wills,  see 

"■'2    Coinj).    Stat.,    p.    2265,    sec.       "Foreiun  W'illv,"  p.  jri,  siijira. 


1258  Probate  Law  and  Practice. 

PRACTICE  ON  GRANT  OF  ADMINISTRATION. 

Petition  for  Letters  of  Administration. 

The  first  proceeding  in  an  application  for  administration  is 
to  present  a  petition  to  the  surrogate.  The  orphans'  court  rules 
])rovide  that  the  application  for  probate  of  a  will,  for  letters  of 
administration,  for  letters  of  administration  with  the  will  an- 
nexed, for  substitutionary  administration,  or  for  substitution- 
ary administration  with  the  will  annexed,  shall  be  in  writing, 
verified  by  affidavit ;  such  application  shall  state  the  residence 
of  the  applicant,  the  names  of  the  heirs  and  next  of  kin  of  the 
deceased,  so  far  as  the  fame  are  known,  with  their  residences 
or  post-office  addresses,  and  the  manner  or  degree  in  which 
they  severally  stand  related  to  him  or  her ;  and  shall  also  state 
the  ages  of  any  of  said  heirs  or  next  of  kin  who  may  be  minors  ; 
which  application  shall  be  recorded  by  the  surrogate  in  a  book 
to  be  kept  for  that  purpose.-""'  Upon  application  to  the  surro- 
gate for  letters  of  administration,  administration  with  the  will 
annexed,  substitutionary  adnnnistration  or  substitutionary  ad- 
ministration with  the  will  annexed,  he  shall  require  an  affidavit 
of  the  value  of  the  estate  for  administration  of  which  the  ap- 
])lication  is  made.'''  Any  person  authorized  to  administer  oaths 
may  take  the  affidavit  to  a  petition  for  administration. 

Application  for  administration  may  be  made  at  any  time 
after  the  death  of  intestate.  It  is  not  necessary  to  await  the 
expiration  of  ten  days,  as  in  case  of  an  application  for  the 
probate  of  a  will. 

Notice  of  Application,  or  Renunciation. 

Where  application  for  administration,  for  administration 
with  the  will  annexed,  for  substitutionary  administration,  or 
for  substitutionary  administration  with  tlic  will  annexed,  is 
made  by  any  person  other  than  the  next  of  kin  or  party  first  en- 
titled, or  by  one  of  several  equally  entitled  to  letters  of  admin- 
istration, the  ])erson  making  such  application  shall  produce  to 
tlie  surrogate  the  renunciation  and  request  of  the  person  so  en- 
titled that  letters  be  issued  according  to  the  application,  or  proof 

^^'Orphan.s'   Court   Rule   i. 
-^"Orphans'    Court    Rule    5. 


Admimstraiiox.  259 

that  at  least  ten  days'  notice  has  been  gi\en  to  all  ol  ilic  laxt  of 
kin  or  parties  by  law  entitled  to  such  administration  \vh()  reside 
in  this  state,  and  that  not  less  than  ten  nor  more  than  sixiy  days' 
notice,  as  the  surrogate  may  by  order  direct,  has  been  given 
to  the  said  next  of  kin  or  parties  by  law  entitled  to  such  admin- 
istration who  shall  reside  without  this  state.  Notice  to  non- 
residents of  the  state  of  New  Jersey  may  be  sent  by  mail,  with 
the  postage  thereon  prepaid,  addressed  to  the  last  known  resi- 
dence of  such  next  of  kin  or  parties  by  law  entitled  to  such 
administration  ;  which  application  and  the  renunciation  and 
request,  if  any,  shall  be  recorded  in  a  book  to  be  kept  for  that 
purpose.^® 

Where  there  are  several  persons  of  equal  degree  of  kindred 
entitled  to  administration,  it  is  necessary  that  they  should  agree 
among  themselves  as  to  who  should  administer.  The  unani- 
mous consent  of  the  nearest  of  kin  is  necessary ;  the  consent  of 
a  majority  is  not  sufilicient..  This  consent  must  be  in  writing, 
and  is  called  their  renunciation.  By  it  the  next  of  kin  renounce 
their  right  to  administer,  and  usually,  though  not  necessaril}-, 
request  the  appointment  of  one  of  their  number,  or  a  third  per- 
son selected  by  them ;  but  all  must  unite  in  the  selection  of  the 
same  person. 

If  all  of  the  next  of  kin  are  unwilling  to  renounce  in  favoi 
of  one  of  their  number,  or  of  a  stranger,  any  one  of  the  next 
of  kin  may  give  notice  to  all  the  other  next  of  kin  of  his  in- 
tention to  apply  for  letters  of  administration,  which  notice 
must  be  served  in  accordance  with  the  provisions  of  Rule  2  of 
the  orphans'  court.-'"  On  the  day  named  in  his  notice,  the  aj)- 
plicant  applies  to  the  surrogate  for  letters,  and  hies  with  him 
proof  of  the  service  of  the  notices ;  and  if  no  written  objection 
to  his  appointment  has  been  filed  with  the  surrogate,  the  latter 
will  appoint  such  applicant.  If  objection  to  his  appointment 
is  filed  with  the  surrogate,  the  latter  is  thereby  deprived  of 
jurisdiction  over  the  matter,  and  he  thereupon  issues  citations 
to  all  persons  interested  to  appear  in  the  orphans'  court,  which 
court  hears  and  determines  the  matter  in  controversy.^" 

ssQrphans'  Court  Hule  2.  ^"See  "Contests  as  to  Right  of 

39Page  258.  supra.  .Xdministration,"  p.  29 1,  infra. 


26o  Probate  Law  and  Practice. 

Where  one  of  several  next  of  kin  applies  for  administra- 
tion, the  surrogate  should  not  in  any  case  grant  letters  until 
proof  has  been  made  that  the  notice  of  the  application  pre- 
scribed by  Rule  2*^  has  been  given  to  the  others;"  and  if  let- 
ters be  granted  without  such  notice,  they  will  be  held  to  be 
void." 

When  a  Stranger  May  Apply  for  Letters. 

Whenever  any  person  has  died,  or  shall  die,  intestate,  within 
this  state,  and  has  left,  or  shall  leave,  no  relations  justly  en- 
titled to  the  administration  of  his  personal  estate,  or  if  the 
next  of  kin  of  any  such  intestate  has  not  claimed,  or  shall  not 
claim,  the  administration  within  forty  days  after  the  death  of 
such  intestate,  it  shall  be  lawful  for  the  ordinary  or  the  sur- 
rogate to  grant  letters  of  administration  on  such  decedent's 
estate  to  any- fit  person  or  persons  applying  therefor.^* 

Notice  of  Application. 

If  the  executor  named  in  any  last  wiH  shall  not  apply  for 
the  probate  of  said  will  and  for  letters  testamentary  thereon 
within  forty  days  from  the  death  of  his  testator,  or  if  the  next 
of  kin  of  any  person  dying  intestate  shall  not  apply  for  ad- 
ministration for  forty  days  from  the  death  of  such  intestate, 
the  surrogate  may  grant  letters  testamentary,  or  letters  of  ad- 
ministration, as  the  case  may  be,  to  any  fit  person  who  will  ac- 
cept the  same.*° 

In  all  cases  where  application  for  letters  of  administration  is 
made  under  the  provisions  of  Rule  3,*"  the  applicant  shall  give 
at  least  ten  days'  notice  to  the  heirs,  widow,  next  of  kin  or 
persons  entitled  to  administration  who  are  residents  of  the 
state  of  New  Jersey,  and  not  less  than  ten  nor  more  than 
sixty  days'  notice,  as  the  surrogate  may  by  order  direct,  to  the 
heirs,  widow,  next  of  kin  or  persons  entitled  to  administration 

*'Page  258,  supra.  of  Wicko   Sinovcic,  80  X.  J.  Eq.. 

■*-Sayre  v.   Sayre,  48  N.  J.  Eq.,       260. 

267.  ^*Orphans'    Court    Act,    sec.   28. 

■i^In    re    Kirkpatrick,    22    N.    J.       3    Comp.    Stat.,    3823.      And    see 

Eq.,    463.      Rinehart    v.    Rinehart,       "Administration     with     the     Will 

27   X.   J.   Eq.,  475.     In   re   Estate       Annexed,"  p.  270,  infra. 

■*50rphans'  Court  Rule  3. 
"""'See  this  page,  supra. 


Administration.  261 

who  reside  without  the  state  of  New  Jersey,  or  to  those  of 
them  whose  residences  or  addresses  he  can  ascertain,  of  his  in- 
tention to  make  such  apphcation.  which  notices  may  be  sent  by 
mail  with  the  postage  thereon  prepaid.  Proof  of  service  of  the 
aforesaid  notices  shall  be  filed  with  the  surrogate. ^^ 

This  rule  is  as  binding  as  the  statute,  and  must  be  complied 
with  ;  and  a  valid  grant  of  administration  cannot  be  made 
without  such  compliance.*^  So  letters  granted  to  a  creditor 
after  the  expiration  of  the  time  limited  in  the  statute,  but  with- 
out proof  of  notice  or  the  renunciation  of  the  persons  entitled 
to  administration,  are  invalid.*^ 

Qualification  of  Administrator. 

An  administrator  is  required  to  qualify  in  the  same  manner 
as  an  executor.  l)y  taking  oath  before  the  surrogate  to  well 
and  truly  administer,  &c.  This  subject  will  be  found  fully 
discussed  in.  connection  with  the  qualification  of  executors.^" 

Security  Required  of  Administrator. 

Administrators  are  required  to  give  bond  in  double  the 
amount  of  the  personal  estate  left  by  their  intestate.  This 
bond  must  be  signed  by  at  least  two  sureties,  each  of  whom 
must  own  real  estate  to  the  value,  over  and  above  his  just 
debts  and  liabilities,  of  the  amount  of  the  bond;  or,  if  the 
administrator  chooses,  he  may  give  a  bond  with  a  surety  com- 
pany authorized  to  transact  business  in  New  Jersey  as  surety. 
A  full  discussion  of  this  subject  will  be  found  in  the  chapter 
devoted  to  the  consideration  of  the  subject  of  "Bonds  of  Exec- 
utors, Administrators,  Guardians  and  Trustees."'^ 

Issue  of  Letters  of  Administration. 

After  the  administrator  has  duly  qualified  and  filed  a  bond 
approved  by  the  surrogate,  the  latter  makes  his  order  directing 
that  letters  of  administration  be  issued  to  him.  The  form  of 
the  letters  is  prescribed  by  statute  and  they  constitute  the  evi- 

^^Orphans'    Court    Rule   4.      As  ^'Hians    v.    Dabergott,   40   N.   J. 

to  nature  of  inquiry  required,  see  Eq.,   184.     In   re  Estate  of  Wicko 

Orphans'  Court  Rule  16,  page  Sqi,  Sinovcic,  80  N.  J.  Eq.,  260. 

infra.  '"See  p.  204,  supra. 

■•'Orphans'  Court  Rule  4.  "''See  p.  306,  infra. 

^'^In  re  Estate  of  Wicko  Sinov- 
cic 80  N.  J.  Eq.,  260. 


262  Probate  Law  and  Practice. 

dence  of  the  right  of  the  administrator  to  act  as  such.^-  If 
it  becomes  necessary  to  file  evidence  of  the  authority  of  the 
administrator  with  l)anks,  corporations,  &c.,  in  order  to  obtain 
the  transfer  of  funds,  stocks,  &c.,  short  form  certificates  for 
this  puri)ose  can  be  obtained  from  the  surrogate  at  any  time 
after  the  grant  of  letters. 

WHO  ENTITLED  TO  LETTERS  OF  ADMINISTRATION. 
In  General. 

The  statute  provides  that  administration  of  the  goods  and 
chattels  of  an  intestate  shall  be  granted  to  the  husband  or 
widow  or  next  of  kin  of  such  intestate,  or  to  some  of  them,  if 
they  or  any  of  them  will  accept  the  same  ;  and  if  none  of  them 
will  accept  thereof,  to  such  other  proper  ])erson  or  persons  as 
will  accept  the  same.^" 

The  principle  which  underlies  the  grant  of  administration  is 
that  it  shall  be  committed  to  those  who  are  the  ultimate  or 
residuary  beneficiaries,  that  is,  to  those  to  whom  the  residue 
of  the  estate  will  go  when  the  administration  is  completed. 
The  right  of  administration  grows  out  of  the  right  of  dis- 
tribution ;  and  consequently  those  who  are  entitled  by  the 
statute  of  distributions  to  what  remains  as  the  intestate's  clear 
estate  after  the  payment  of  debts  and  expenses  of  administra- 
tion have  an  exclusive  primary  right  to  administration.^* 

So  where  the  only  assets  of  a  deceased  intestate  are  a  claim 
for  damages  against  some  person  or  corporation  for  negligence 
causing  his  death,  the  persons  entitled  to  administration  are 
those  who  will  participate  in  the  distribution  of  the  fund,  in 
case  of   a   recovery,   designated  by   the   Death   Act.^^ 

Non-Residents, 

The  orphans'  court  rules  provide  that  where  upon  applica- 
tion to  the  surrogate  for  letters  of  administration,  administra- 

•'■■-Foi-  form  of  letters,  see  p.  985.  Eq..   558,  but   see   Degnan's   Case. 

i»fra.  75  N.  J.  Eq.,   197. 

s^Orphans'    Court   Act,   sec.  27,  ^Hn  re  Freccia  27  N.  J.  L.  J., 

as  amended  by  P.  L.  1914,  P-  69.  367,  and  see  2  Comp.  Stat.,   1908, 

54Donahay  v.  Hall.  45  N.  J.  Eq.,  sec.  8. 
720.     Cramer   v.   Sharp,   49   N.  J. 


Administration.  263 

tion  with  the  will  annexed,  substitutionary  administration,  or 
substitutionary  administration  with  the  will  annexed,  it  shall 
appear  that  some  of  the  next  of  kin  or  persons  entitled  to  ad- 
ministration are  residents  of  the  state  of  New  Jersey,  and  that 
others  of  said  next  of  kin  or  persons  entitled  to  administration 
reside  without  the  state  of  New  Jersey,  the  surrogate  in  grant- 
ing letters  of  administration  shall  give  preference  to  residents 
of  the  state  of  New  Jersey. ^'^  It  is,  however,  improper,  in  any 
case,  to  grant  letters  of  administration  to  a  foreigner  residing 
abroad,  even  though  he  be  the  only  next  of  kin."'^ 

Order  and  Right  of  Administration. 

The  order  and  right  of  administration  of  the  estate  of  a 
decedent,  beyond  that  of  the  widow  and  next  of  kin,  which  is 
provided  for  by  the  statute,  being  determined,  as  above  stated, 
upon  the  principle  that  the  ultimate  beneficiaries  are  entitled 
to  administration,  the  right  of  administration  will  be  in  those 
beneficially  entitled  under  the  statute  of  distributions."'-  The 
priority  of  the  right  of  administration  may,  however,  be  briefly 
stated  as  follows : 

I.  On  the  Estate  of  a  Husband. 

1.  The  widow   (who  has  a  preferred,  but  not  an 

exclusive   right). 

2.  Children. 

3.  Issue  of   deceased  children. 

4.  Nearest  of  kin  in  equal  degree. 

II.  On  the  Estate  of  a  Wife. 

1.  The  husband  (who  has  a  preferred,  but  not  an 

exclusive  right). 

2.  Children. 

3.  Issue  of  deceased  children. 

4.  Nearest  of  kin  in  equal  degree. 

III.  On  Estate  of  an   Unmarried  Child. 

I.   IV hen  child  is  a  minor. 

(a)   Father  and  mother  have  e(|ual  rights. 

sGOrphans'    Court    Rule   6.  cic,   80   N.  J.   Eq.,   260. 

^^In  re  Estate  of  Wicko  Sinov-  •'^vSee  p.  6<)S,  infra. 


264  Probatk  Law  and  Practice. 

(^b)   Brothers  and  sisters, 
(c)   Nearest  of  kin  in  equal  degree. 
2.  IVhen  Child  is  of  full  age. 

{3.)   Parents    and    brothers    and    sisters    have 

equal   rights. 
{h)   Nearest  of  kin  in  equal  degree. 

Widow. 

Section  2y  of  the  Orphans'  Court  Act.  as  it  stood  prior 
to  the  amendment  of  1914,^-'  was  in  substance  a  duplicate  of 
the  statute  of  21  Hen.  Mil.  the  amendment  of  1914  adding 
the  word  "husband"  to  its  provisions.  Under  this  statute  it 
has  been  held  that  while  the  widow  has  not  an  exclusive  prior 
right,  still  under  ordinary  circumstances  the  widow  will  be 
preferred;*^''  and  in  New  Jersey  it  would  appear  that  the  prac- 
tice is  to  grant  administration  to  the  widow,  in  the  absence  of 
disquahfying  circumstances.^^ 

\\'hile  the  fact  that  the  widow  has  remarried  is  no  invincible 
obiection  to  her  appointment,  yet  circumstances  in  some  cases 
may  induce  the  court  to  prefer  a  child.*"'-  A  separation  by  a 
wife  from  her  husband,  unless  clearly  shown  to  have  been 
caused  by  her  own  misconduct,  or  to  have  been  followed  by 
such  gross  immorality  as  to  affect  her  capacity,  does  not  de- 
prive her  of  her  interest  in  his  personal  estate,  if  he  dies  in- 
testate, or  of  her  preference  to  administration  thereof.''^ 

The  right  of  the  widow  to  administer  upon  her  husband's 
estate  is,  as  has  been  said,  not  an  e.veliisiz-e  right :  that  is.  if  she 
does  not  desire  to  qualifv  as  administrator,  she  cannot  re- 
nounce in  favor  of  a  third  person  selected  by  herself,  but  all  of 
the  next  of  kin  entitled  to  participate  in  the  distribution  of  the 
intestate's  estate  nuist  renounce  before  the  surrogate  may  ap- 
point an  administrator.  But  where  the  next  of  kin  are  minors, 
and  the  widow  renounces  her  right  of  administration,  the  court 
is  free  to  appoint  any  proper  person  to  administer  the  estate, 
and,  in  the  exercise  of  its  discretion,  may  appoint  the  nominee 

•"''See  p.  262.  supra.  s^HiU's  Case.  55  X.  T.  Eq..  764- 

^"1  Williams  on  Executors.  353.  768. 

'^iHill's  Case.  55  X.  T.  Eq..  764-  '^Hn  re  Estate  of  Runvon.  12  X. 

"6S-  T.  L.  J..  15. 


Administration.  265 

of  the  widow  so  renouncing  her  right.''"*  or  may  grant  letters 
of  administration  durante  minore  (Vtatc.*'^ 

Husband. 

Prior  to  the  enactment  of  the  amendment  to  the  statute  of 
distributions  in  1914,  the  husband  took  all  of  his  wife's  per- 
sonal property,  and  so  had  an  exclusive  right  to  administer 
upon  her  estate.'"''''  The  amendment  of  1914,  however,  gives 
the  husband  only  the  same  rights  in  his  wife's  estate  that  a 
wife  has  in  her  husband's.  The  right  of  the  husband  to  ad- 
minister upon  his  wife's  estate  therefore  is  the  same  as  that 
of  a  widow  to  administer  upon  her  husband's,  viz :  a  preferred 
right  of  a])pointment  merely. 

Rights  of  Widow  and  Next  of  Kin  as  Against  a  Stranger. 

The  statute  requires  that  letters  01  administration  shall  is- 
sue to  the  widow  or  next  of  kin  in  preference  to  a  stranger, 
if  any  of  them  are  fit  and  competent  and  will  accept.""  The 
court  has  no  power  to  appoint  a  stranger  while  there  is  one 
of  the  next  of  kin  able,  comjjetent  and  willing  to  accept  the 
trust,  even  though  all  others  entitled  join  in  requesting  the 
appointment  of  the  stranger,''^  and  the  statute  is  applicable 
to  the  appointment  of  substituted  administrators  :'"•"  but  where 
the  conduct  of  the  next  of  kin  is  such  as  to  induce  tlie  court  to 
])elieve  that  they  had  previously  declined  appointment,  the  ap- 
pointment of  a  stranger  by  the  court  will  not  be  set  aside. ''^ 
Where,  however,  one  of  the  next  of  kin  supposed  his  proctor 
was   insisting  upon   his   apjjointment   and   was   not   consulted 

•■+In  re  .^Ipaugh's  Estate,  83  N.  Kq..    558.      Rinehart    v.    Rinehart. 

J.  Eq.,  616.  27  X.  J.  Eq..  475.    Wallace's  Case, 

''•''See    "Administration    durante  49  ^^^-  J-  Eq..  530-549- 
niiuorc  cctatc."  p.  283.  infra.  «**Wallace's   Case,  49  X.  J.   Eq.. 

""Donnington  v.  Mitchell,  2  X.  530-549-     Cramer  v.  Sharp,  49  X. 

J.  Eq.,  243.    Johnson  v.  Cummins.  J.  Eq.,  558.     Rinehart  v.  Rinehart. 

16  N.  J.  Eq.,  97.     Degnan's  Case,  27  X.  J.  Eq..  475. 
75  N.  J.  Eq.,  197.  "-'Donahay    v.    Hall,    45    X.    J. 

'''^Donahay  v.  Hall,  45  X.  J.  Eq.,  Eq.,  720. 
720.    Sayre  v.  Sayre.  48  X.  J.  Eq.,  'nVebb  v.  Rogers,  19  X.  J.  L.  T., 

267.     Cramer   v.    Sharp,   49   N.   J.  79- 


266  Probatk  Law  and  Practice. 

about  the  ai:)pointinent  of  a  stranger,  consent  to  such  appoint- 
ment will  not  be  imputed  to  liim.'^  In  case  of  the  death  or  re- 
nunciation of  an  executor,  however,  the  right  of  the  residuary 
legatee  to  administration  is  prior  to  that  of  the  next  of  kin.'- 

The  right  of  the  next  of  kin  to  administration  is  purely 
personal,  and  is  not  coupled  with  any  power  or  right  on  the 
part  of  the  person  possessing  it  to  nominate  or  select  the  per- 
son to  be  appointed.'-^  So,  where  all  of  the  next  of  kin  rc^ 
nounce  in  favor  of  one  of  their  number,  the  person  so  selected 
by  the  next  of  kin  has  no  power  to  nominate  a  person  as  ad- 
ministrator; and  if  the  surrogate  appoints  his  nominee,  with- 
out notice  to  the  other  next  of  kin,  such  appointment  will  be 
void.'* 

If  the  next  of  kin  will  not  accept  administration,  it  is  for  the 
court  to  appoint,  in  its  discretion,  such  other  proper  person 
or  persons  as  will  accept  it ;  and  the  court  is  under  no  obliga- 
tion to  select  the  person  nominated  by  a  majority  of  the  next 
of  kin,  but  may  appoint  one  suggested  by  a  minority,  or  may 
entirely  disregard  the  suggestions  of  the  next  of  kin  and  make 
its  own  selection. ^"^  The  court  will,  however,  generally,  though 
not  necessarily,  be  controlled  in  its  selection  by  the  wishes 
of  the  majority  of  the  kin  who  are  interested  in  the  proper  set- 
tlement of  the  estate.'*^ 

Where  the  appointing  power  has  a  discretion  to  select  one 
or  more  from  a  class,  and  there  are  several  claimants,  it  should, 
in  deciding  to  whom  the  grant  shall  be  made,  give  full  con- 
sideration to  the  moral  fitness  and  integrity  of  the  several 
claimants ;' '  and  in  appointing  an  administrator  from  sev- 
eral applicants  of  the  same  degree  of  kinship,  all  else  being 

^iHill's  Case,  55  N.  J.  Eq.,  764.  Eq.,  475.     In   re   estate  of  Wicko 

'-See    "Wlio    Entitled."    p.    z']!,  Sinovcic,  80  N.  J.  Eq.,  260. 

infra.  ^"'Cresse's    Case,    28    N.   J.    Eq.. 

^^Cresse's    Case,   28   N.   J.    Eq.,  236.     Cramer  v.   Sharp,  49  N.  J. 

236.    Wallace's  Case,  49  N.  J.  Eq.,  Eq.,  558. 

530-549-     Cramer  v.  Sharp,  49  N.  ^cWallace's  Case,  49  N.  J.  Eq.. 

J.  Eq..   558.  530. 

"*Rmehart  v.  Rinehart,  27  N.  J.  "Cramer  v.  Sharp,  49  N.  J.  Eq., 

558. 


Administration'.  267 

equal,  an  older  person  will  generally  ho  ])referre(l  to  a  young^cr, 
and  a  male  to  a  female.''' 

Infants. 

An  infant,  being  unable  to  give  a  bond,  cannot  be  appointed 
an  administrator."''  It  is  upon  the  theory  that  the  next  of 
kin  would  take  the  residue  that  the  statute  confers  the  right 
of  administration  upon  him  or  them.  When  the  next  of  kin 
are.  upon  the  foregoing  theory.  incai)able.  by  reason  of  infancy, 
of  administering,  such  letters  should  go  to  some  one  interested 
for  the  next  of  kin.  It  follows,  therefor,  that  where  the  next 
of  kin  is  an  infant,  and  a  guardian  is  appointed  during  his 
minority,  it  is  proper  to  appoint  the  person  who  has  charge 
of  the  estate  of  the  infant,  viz.,  his  guardian.  He,  as  guardian 
of  the  estate  of  the  next  of  kin  has  a  superior  interest  in  the 
residuary  estate  of  the  intestate.  By  reason  of  such  superior 
interest,  his  appointment  to  administer  for  the  benefit  of  the 
infant  next  of  kin  is  proper.^" 

Heirs  at  Law. 

Where  an  estate  has  been  decreed  likely  to  lie  insolvent,  and 
real  estate  must  be  sold  to  pay  debts,  and  it  does  not  appear 
that  the  proceeds  of  the  sale  of  the  real  estate  will  not  be  suf- 
ficient for  that  pur]:)ose,  the  heirs  at  law  will  be  regarded  as 
the  ultimate  beneficiaries  of  the  estate,  and,  as  such,  entitled 
to  administration.^' 

Married  Women. 

At  common  law.  a  married  woman  might  1)C  an  executrix 
or  administratrix,  but  could  not  accept  the  office  without  the 
consent  of  her  husband.''-  In  this  state  it  is,  however,  pro- 
vided by  statute  that  a  married  woman  mav  l)e  an  executrix 
or  administratrix,  and  that  licr  husl)and  mav  l)e  accepted  as 

■'Hill's  Case.  55  X.  J.  F.q..  764.  ^''Woodruff  v.   Snoover.  45   .^tl. 

"■'4  Griffiths  baw  Register.   1256.  Rep..  q8o. 

Griffiths   Treatise.    180.     Carow  v.  ^'Donahay    v.     Hall.    45    N.    J. 

Mowatt.  2  Edw.  Ch.  (N.  Y.).  57.  F.q.,  720. 

Knox    V.    Nohcl.    27    N.    Y.    Sup..  ^-r    Williams    mi    I'.xeciitors,    p. 

206.      Affirmed,    77    Hun..    230,    28  185. 
N.  Y.  vSup..  .355. 


268  Pkobatk  Law  and  Practice. 

surety  on  any  bond  which  she  may  be  required  to  give.  This 
provision  was  enacted  in  1898-^  and  supersedes  the  doctrine 
enunciated  in  the  cases  of  J  rood  v.  Chctivood,^*  and  Lippin- 
cott  V.  JVikoff,"^^  where  it  was  lield  that  a  man  marrying  a 
woman,  who  is  an  executrix  or  administratrix,  liy  the  marriage 
becomes  an  executor  or  administrator,  in  her  right,  and  ac- 
countable  as   such. 

Right  o£  Consul  to  Administration  upon  Estate  of  Resi- 
dent Alien. 

Most,  if  not  all,  of  the  treaties  entered  into  between  the 
United  States  and  foreign  powers  contain  a  clause  providing 
that  among  others  Consuls-General  shall  enjoy  in  the  two 
countries  all  the  liberties,  prerogatives,  immunities,  and  privi- 
leges granted  to  functionaries  of  the  most  favored  nation. 
This  provision  is  usually  called  "the  most  favored  nation 
clause." 

The  treaty  between  the  United  States  and  Sweden,  entered 
into  in  the  year  191 1,  and  which  is  one  of  the  latest,  if  indeed 
not  the  latest  and  most  liberal  treaty  entered  into  by  the  United 
States,  contains  the  following  clause :  "Article  XIV.  *  *  * 
In  the  event  of  any  citizens  of  either  of  the  two  contracting 
parties  dying  without  will  or  testament  in  the  territory  of  the 
other  contracting  party,  the  consul-general,  consul,  vice-consul- 
general,  or  vice-consul  of  the  nation  to  which  the  deceased  may 
belong,  or  in  his  absence  the  representative  of  such  consul- 
general,  consul,  vice-consul-general,  or  vice-consul,  shall,  so 
far  as  the  laws  of  each  country  will  permit,  pending  the  ap- 
pointment of  an  administrator  and  until  letters  of  adminis- 
tration have  been  granted,  take  charge  of  the  property  left 
by  the  deceased  for  the  benefit  of  his  lawful  heirs  and  cred- 
itors, and  moreover,  have  the  right  to  he  appointed  as  adminis- 
trator of  sneJi  estate.  It  is  understood  that  when,  under  the 
provisions  of  this  article,  any  consul-general  (etc.)  *  *  * 
is  acting  as  executor  or  administrator  of  the  estate  of  one  of 
his  deceased  nationals,  the  said  officer  or  his  representative 
shall   in   all  matters   connected   with,   relating   to   or  growing 

s^Orphans'  Court  Act,  sec.  142,  ^^27  N.  J.  Eq.,  311. 

p.  317.  infra.  s"'54   N.  J.   Eq.,    107. 


Administratiox.  269 

out  of  the  settlement  of  such  estate  be  in  such  capacities  as 
fully  subject  to  the  jurisdiction  of  the  courts  of  the  country 
wherein  the  estate  is  situated,  as  if  such  officer  or  representative 
were  a  citizen  of  that  country  and  ])ossessed  of  no  representa- 
tive capacity  whatsover." 

It  has  been  contended  by  consuls  of  various  nations,  where 
treaties  contain  the  "most  favored  nation"  clause,  that  under 
this  treaty  they  possess  an  exclusive  right  to  administration 
upon  the  estates  of  all  subjects  of  the  powers  thev  represent 
who  may  die  intestate  in  this  state.  This  question  was  con- 
sidered in  the  case  of  /;/  re  Canncio  Giirricri,'^'''  where  Tudge 
r^Iartin,  sitting  in  the  Essex  County  Orphans'  Court,  held  that 
the  language  of  the  treaty  with  Sweden,  "and  moreover  have 
the  right  to  be  appointed  administrator  of  such  estates,"  ap- 
parently refers  to  a  right  additional  to  that  authorizing  the 
taking  charge  of  property  in  conformity  with  the  laws  of  the 
country,  and  that  the  right  to  be  appointed  administrator  is 
separate  and  distinct  from  the  right  to  take  possession  of  the 
property.  It  is  evident  that  in  addition  to  being  privileged  to 
take  possession  of  the  property  of  their  nationals,  consuls  are 
given  the  further  right  to  be  one  of  those  who  may  be  ap- 
pointed as  administrator.  This  se£ms  to  qualify  them  as 
proper  parties  to  receive  letters  of  administration.  It  does 
not  exclude  others  ordinarily  entitled  to  letters.  Rule  2  of 
the  orphans'  court*^  directs  that  notice  be  given  to  all  per- 
sons entitled  to  administration  and  the  statute  designates  the 
widow  and  next  of  kin  as  persons  entitled ;  and  it  w^ould  seem 
that  the  statement  in  the  fourteenth  article  of  the  treaty  with 
Sweden  meant  to  add  the  right  to  be  classed  as  one  of  those 
entitled  to  administration  on  the  estates  of  decedents  described 
in  the  article. 

The  result  is  that  the  effect  of  these  treaties  is  to  place  the 
consul  of  the  nation,  a  subject  whereof  dies  within  this  state, 
in  the  same  position  as  the  decedent's  next  of  kin  under  the 
statute ;  that  is,  he  has  an  equal  right  with  them  to  administer 
upon  the  estate  of  such  alien^intestate,  and  his  renunciation  of 
such  right  must  be  procured,  or  the  same  notice  of  any  apf)lica- 

^"35  N.  J.  L.  J.,  240.  s^See  p.  258,   supra. 


270  Probate  Law  and  Practice. 

tion  tor  adniinistration  must  l)e  given  him  as  is  required  to  be 
given  to  the  next  of  kin.®* 

ADMINISTRATION    WITH    THE   WILL   ANNEXED. 

When  Necessary. 

When  the  testator  neglects  to  appoint  an  executor,  or  where 
tiie  appointment  of  an  executor  fails,  administration  with  the 
will  annexed,  or,  as  it  is  sometimes  abbreviated,  administration 
c.  t.  a.,  will  be  granted.  The  appointment  of  an  executor 
fails,  I.  Where  the  person  appointed  renounces  or  refuses  to 
act ;  2.  Where  the  person  appointed  dies  before  the  testator, 
or  is  incapable  of  acting.**'' 

The  statute  provides  that  if  any  person  die  intestate,  or  if 
the  executor  named  in  any  testament  renounce  the  executor- 
ship, or  neglect,  for  the  space  of  forty  days  after  the  death  of 
the  testator  or  testatrix  to  prove  such  testament,  then  adminis- 
tration of  the  goods,  chattels  and  credits  of  such  intestate  or 
of  such  testator  or  testatrix  with  the  testament  annexed,  shall 
be  committed  or  granted  to  the  husband  or  widow,  as  the  case 
may  be.  or  the  next  of  kin  of  such  intestate,  testator  or  testa- 
trix, or  to  some  of  them,  if  they  or  any  of  them  will  acce])t  the 
same ;  and  if  none  of  th^m  will  accept  thereof,  then  to  such 
other  proper  person  or  persons  as  will  accept  the  same."° 

This  statute  can  only  be  called  upon  to  aid  a  party  who  shall 
institute  proceedings  under  it  prior  to  the  application  of  the 
executor.  The  act,  if  read  literally,  requires  the  executor  to 
prove  the  will  within  forty  days.  But  the  object  of  the  law  is 
to  provide  for  a  prompt  administration  of  the  estate  of  a  de- 
ceased person  ;  and  when  neither  creditors,  legatees,  nor  next 
of  kin  make  any  move  until  after  the  executor  has  filed,  in 
due  form,  his  petition  for  probate,  the  reason  for  committing 
administration  to  another,  that  is,  promptness  in  the  settlement 
of  the  estate,  disappears,  for  after  the  executor  has  instituted 
proceedings  for  probate,  the  presumption  is  that  he  will  pro- 

s^See    also,    In    re    Estate    of  ^  ^^i  Williams  on  Executors,  399. 

Wicko  Sinovcic,  80  N.  J.  Eq.,  260.  -^"Orphans'    Court   Act.   sec.   27. 

Matter    of    Erancisco    Ereccia,    27  as  amended  bv  P.  E.   1914,  p.  69. 
X.  J.  L.  J.,  367. 


Admixistratiox  c.  t.  a.  '      271 

ceed  with  all  necessary  promptness  to  carry  out  tiie  wishes 
of  the  testator."^ 

Right  of  Executor  to  Renounce. 

The  executor  may  renounce,  though  he  cannot  assign,  his 
office,  and  even  though  in  the  lifetmie  of  the  testator  he  has 
agreed  to  accept  such  office,  it  is  still  in  his  power  to  recede. ''- 
But  if  an  executor  administers  any  part  of  the  personal  estate, 
or  performs  any  act  as  executor,  without  })roving  the  will, 
he  will  he  taken  to  have  accepted  the  office,  and  his  right  to 
renounce  will  be  gone.  The  court  may,  however,  jiermit  him 
to  renounce,  though  he  no  longer  has  an  absolute  right  to  do 
so.^--' 

Implied  Renunciation. 

A  renunciation  cannot  be  made  by  an  act  /;/  pais,  as,  for  in- 
stance, by  a  mere  verbal  declaration ;  to  give  it  validity,  it  must 
lie  done  by  some  act  entered  and  recorded  in  the  spiritual 
court."*  So  filing  a  caveat  against  the  probate  of  a  will  by  one 
of  the  executors  named  therein  is  not  an  implied  renunciation 
of  the  executorship. ''° 

Agreement  to  Renounce. 

An  agreement  to  renounce  an  executorship  for  a  considera- 
tion is  illegal,  because  against  public  policy."" 

Effect  of  Renouncing. 

If  administration  is  granted  in  consequence  of  the  failure 
of  the  executor  to  appear  and  prove  the  will,  he  may  yet,  after 
administration  has  been  granted,  come  and  prove  the  will  f 
l)Ut  if  all  the  executors  named  in  the  will  renounce  or  fail  to 


'"Acker's  Case  70  N.  J.  Eq. 
669. 

•'-I  Williams  on  Executors,  225 
18  CYC.  80. 

33i  Williams  on  Executors,  227 
18  CYC,  80. 

■'Mn  re  Maxwell.  3  N.  J.  Eq. 
611-612.  I  Williams  on  Executors 
-'.^  I  • 

19 


■'•"■In  vv  Ala.wvell.  3  N.  J.  Eq., 
611. 

"'■•Ellic<itt  V.  Cliamberlin.  38  N. 
J.  ]'"q.,  604,  and  sec  Rei)orter's 
Note,  i!). 

"Hn  re  Maxwell,  3  N-  .1-  I'"-q-. 
61 1 -613. 


272        ■  Probate  Law  and  Practice. 

prove  the  will  within  the  time  prescribed  by  the  statute,  let- 
ters of  administration  cum  testanieno  annexo,  are  to  be  granted, 
after  which  the  executors  are  all  precluded  from  acting.®^ 

Retraction  of  Renunciation. 

The  renunciation  of  an  executor  may  be  retracted  at  any 
time  before  administration  granted  f^  and  where  there  are 
several  executors,  and  one  of  them  renounces,  he  may  retract 
his  renunciation,  and  have  letters  testamentary  granted  to 
him,^"°  and  so  where  the  qualifying  executors  have  been  re- 
moved.^"^^  But  where  all  of  the  executors  renounce,  and  ad- 
ministration c^im  tcstamcnto  annexo  has  actually  been  granted, 
it  is  too  late  to  retract  the  renunciation,  at  least  during  the  life- 
time of  the  administrator. ^°' 

Who  Entitled. 

As  has  already  been  seen,  the  principle  which  underlies  the 
grant  of  administration  is  that  it  shall  be  committed  to  those 
who  are  the  ultimate  or  residuary  beneficiaries  ;  that  is,  to 
those  to  whom  the  residue  of  the  estate  will  go  when  the  ad- 
ministration is  completed,  and  who  are  therefore  most  inter- 
ested in  the  economical  administration  of  the  estate."^ 

The  reason  that  the  statute  requires  that  administration 
upon  the  estate  of  an  intestate  should  be  granted  to  the  next 
of  kin  is  upon  the  presumption  that  the  intestate  intended  to 
prefer  them,  and  upon  the  further  theory  that  the  next  of  kin 
would  take  the  residue  after"  payment  of  debts ;  but  where 
testator  makes  a  will  and  names  therein  a  residuary  legatee, 
this  presumption  is  destroyed.     \Miere   the   residuum  is  dis- 

9«Hill   V.   Smalley,   25   N.   J.   L.,  ^^'Mudson   v.   Gibbons,   5   Wend. 

374-381.  (N.  Y.),  224. 

''•'In   re   Alaxvvell,   3   N.  J.   Eq.,  ^"-Robertson     v.     McGeoch,     11 

611.      I    Williams    on    Executors,  Paige     (N.    Y.).    640.      Trow    v. 

233.     Robertson    v.    McGeoch.    11  Shannon,  59  How.  Prac.  (N.  Y.). 

Paige   (N.  Y.),  640.     18  CYC.  p.  214. 

81.  and  cases  cited.  I'^^Donahay  v.  Hall.  45  N.  J.  Eq.. 

looDempsey's  Will,  i  Tuck.  (N.  720.     Cramer  v.    Sliarp,   49  N.  J. 

Y.).    51.      Petition    of   Taggart,    i  Eq.,  558. 
Ashm.,  321.     18  CYC,  p.  81.  and 
cases  cited. 


Administration  c.  t.  a. 


273 


posed  of  to  another,  there  remains  no  reason  why  the  next  of 
kin  should  have  administration  with  the  will  annexed  granted 
to  them,  for  no  benefit  could  accrue  to  them  thereby.'"*  It 
follows,  therefore,  that  upon  the  death  or  renunciation  of  an 
executor,  the  right  of  a  residuary  legatee  to  administer  is 
superior  to  the  right  of  the  next  of  kin,  legatees  or  creditors, 
and  it  is  not  discretionary  with  the  court  to  grant  administra- 
tion to  any  other  person  than  the  residuary  legatee,  when  the 
latter  is  willing  and  able  to  accept ;'  and  upon  the  death  of  the 
residuary  legatee,  his  right  to  administer  passes  to  his  per- 
sonal representatives.-  In  Degnan's  Case-^  it  was  however  held 
that  where  the  husband  of  a  married  woman  entitled  to  admin- 
istration upon  her  estate,  dies  before  taking  out  letters  of  ad- 
ministration, his  personal  representative  is  not  entitled  to  let- 
ters, but  the  next  of  kin  of  the  deceased  wife  are  entitled 
thereto. 

If  the  will  does  not  name  any  residuary  legatee,  then  as  to 
the  residue  of  his  estate  the  testator  dies  intestate ;  and  his 
next  of  kin,  being  entitled  to  distribution  thereof,  have  the 
right  of  administration  with  the  will  annexed. 

Notice  of  Application  or  Renunciation. 

As  has  been  seen,  the  residuary  legatee  named  in  the  will, 
is  entitled  to  administration  with  the  will  annexed.  If  there 
be  several  residuary  legatees,  they  are  all  equally  entitled ;  and 
before  any  one  can  be  appointed,  he  must  either  produce  to  the 
surrogate  the  renunciation  of  those  equally  entitled  with  him, 
or  proof  of  the  service  of  notice  of  his  application  in  accord- 
ance with  the  provisions  of  Rule  2  of  the  orphans'  court."  If 
the  will  contains  no  residuary  clause,  then,  the  testator  having 
died  intestate  as  to  the  residue  of  his  estate,  the  next  of  kin. 
being  entitled  to  distribution  thereof,  will  be  entitled  to  ad- 
ministration with  the  will  annexed,  and  the  rules  governing 
the  grant  of  administration  in  the  usual  case  are  followed.* 

i04Booraein's  Case,  55  N.  J.  Eq.,  ^gooraem's  Case.  55  N.   T.  Eq., 

759-  759. 

iln  re  Kirkpatrick.  22  N.  J.  Eq.,  -^75  N.  J.  Eq.,  I97- 

463.    Booraem's  Case,  55  N.  J.  Eq.,  ''Page  258,  supra. 

750.  ■*See  p.  258,  supra. 


:274  Probate  Law  and  Practice. 

Petition  for  Administration  c.  t.  a. 

Inasmuch  as  the  necessity  for  administration  with  the  will 
annexed  arises  only  in  a  case  where  there  is  no  executor  named 
in  the  will,  or  where  the  executor  has  died  or  renounced,  ap- 
plication for  letters  of  this  character  is  usually  made  at  the 
time  of  the  aj^plication  for  the  probate  of  the  will ;  and  the 
petition  for  probate  is  therefore  modified  in  accordance  with 
the  circumstances  of  the  case. 

The  petition  should  be  in  accordance  with  the  provisions  of 
Rule  2  of  the  orphans'  court,"  and  in  addition  thereto  should 
recite  the  circumstances  necessitating  the  grant  of  adminis- 
tration with  the  will  annexed,  such  as  the  pre-decease  of  the 
executor,  the  failure  of  testator  to  name  an  executor,  his  re- 
nunciation or  failure  to  c[ualify,  or  otherwise,  as  the  case  may 
be.  If  the  a])plicant  is  the  sole  ])erson  entitled  to  administra- 
tion c.  t.  a.,  the  petition  should  so  recite;  but  if  only  one  ot 
several,  then  it  should  recite  the  names  and  addresses  of  those 
equally  entitled  with  the  applicant,  and  that  they  have  either 
renounced  their  right,  or  that  due  notice  of  such  application 
has  been  given  to  them,  pursuant  to  the  provisions  of  Rule  2  of 
the  orphans'  court."  The  petition  should  conclude  with  a 
prayer  that  the  will  be  admitted  to  probate  and  letters  of  ad- 
ministration with  said  will  annexed  granted  to  petitioner ;  and 
there  should  be  annexed  to  the  petition  an  affidavit  verifying 
the  facts  stated  in  the  petition,  and  giving  the  amount  of  the 
personal  property  whereof  testator  was  possessed  at  the  time 
of  his  death,  pursuruit  to  the  provisions  of  Rule  5  of  the  or- 
phans' court.' 

Qualification   and    Bond. 

An  administrator  with  the  will  annexed  is  required  to  qualify 
before  the  surrogate  and  also  to  give  bond  in  double  the  value 
of  the  personal  property  of  his  testator,  in  the  same  manner  as 
an  ordinary  administrator.^ 

•'•Page  258,  supra.  utor,"   p.   204.   supra,   and   "Bonds 

*'Page  258,  supra.  of      Executors,       Administrators. 

^Page  258,  supra.  Guardians  and   Trustees,"  p.  306, 

*See     "Qualification  of     Exec-       infra. 


Substitution ARV  Administration.  275 

Duties  of  Administrator  c.  t.  a. 

\\  here  an  adniinistralion  shall  he  granted,  wilh  a  will  ur 
testament  annexed,  the  will  of  the  deceased  in  snch  testa- 
ment  expressed   shall   he   ohserved   and   performed." 

An  administrator  c.  t.  a.  is  a  snhstitnted  executor,  and  suc- 
ceeds to  the  powers  conferred  upon  the  executor  as  such,  but 
not  to  the  powers  devolving  upon  the  executor  as  trustee.^'* 
1  le  can  only  act  as  trustee  under  the  will  of  his  decedent  by  ap- 
pointment by  a  court  of  competent  jurisdiction  ;  and  the  sure- 
ties on  his  bond  as  administrator  c.  t.  a.  are  not  liable  for  his; 
default  in  the  performance  of  any  of  the  duties  of  a  trustee 
which  he  may  imdertake.'''^ 

SUBSTITUTIONARY  ADMINISTRATION, 
Substitute   for   Deceased   Executor. 

At  common  law,  if  a  sole  executor  died  after  appointing  aiT 
executor,  the  latter  became  the  executor  of  the  first  testator, 
and  the  right  of  representation  might  have  been  continued  in- 
definitely so  long  as  the  chain  was  not  broken  by  an  intestacy.^" 
In  New  Jersey,  however  the  statute  provides  that  no  ex- 
ecutor of  an  executor  shall,  as  such,  be  authorized  to  adminis- 
ter on  the  estate  of  the  first  testator,  Init  on  the  death  of  the 
sole  or  surviving  executor  of  any  last  will  and  testament,  or  his 
discharge  or  removal  by  a  court  of  competent  jurisdiction, 
letters  of  substitutionary  administration  with  the  will  annexed 
of  the  assets  of  the  first  testator  may  be  issued  by  the  surro- 
gate of  the  proper  county,  or  the  ordinary,  to  some  proper 
person  or  j)ersons  who  shall,  before  the  issuing  thereof,  give 
bond  to  the  ordinary,  with  sufficient  sureties  as  in  other  cases 
of  administration  with  the  will  annexed.'^ 

•'Orphans'    Court    Act,    sec.    34.  204,   et  seq.     Annin  v.  \'andoren,. 

3  Coinp.  Stat.,  p.  3825.  '4  N.  J.  Eq.,  135- 

'■•aCasselman  V.  McCooley,  73  N.  "1*.    !,.    lyoi.   p.  303,   sec.    i.     2- 

J.  Rq.,  253-254.  Comp.  Slat.,  p.  2259,  sec.  2a.  This 

■'hin  re  Quimby's  Estate,  92  Atl.  section  replaces  P.  L.  1897.  p.  192; 

Rep.,  56.  which    has    since    been    repealed. 

i^'i    Williams    on    Executors,    p.  See   P.  E.   1901.  p.  .304,  sec.  5.      2: 

Comp.  Stat.,  p.  2260,  sec.  2e. 


276  Probate  Law  and  Practice. 

Prior  to  the  enactment  of  the  act  of  1901,  upon  the  death  of 
a  sole  executor,  administration  de  bonis  iion  cum  testamento 
anncxo  was  granted ;  this  class  of  administration  was,  how- 
ever, abolished  by  the  Act  of  1901/- 

Substitute   for   Deceased   or   Removed   Administrator. 

If  any  administrator  shall  die  or  be  removed  before  fully 
administering  the  estate  of  his  or  her  intestate  (or  of  his  or 
her  testator,  if  he  be  administrator  with  the  will  annexed), 
the  surrogate  of  the  proper  county  or  the  ordinary  may 
grant  letters  of  substitutionary  administration  to  any  person 
or  persons  in  the  manner  and  upon  the  conditions  prescribed 
for  granting  letters  of  administration  to  the  first  adminis- 
trator in  other  cases. ^^ 

Style  of  Administrator  so   Appointed.     Powers. 

Every  administrator  so  appointed  shall  be  styled  "substituted 
administrator,"  and  as  such  be  entitled  to  demand  and  receive 
the  whole  of  the  personal  estate  of  his  decedent,  except  such 
portion  thereof  as  shall  have  been  properly  and  justly  paid 
out  or  distributed ;  and  may  sue  and  recover,  at  law  and  in 
equity,  all  the  said  assets,  whether  legal  or  equitable,  from 
any  person,  his  heirs  or  personal  representatives,  chargeable 
with  the  same,  or  their  equivalent  in  value ;  and  may  in  like 
manner  charge  his  predecessor  in  office  for  any  breach  of  trust 
and  maladministration ;  and  th-e  said  substituted  administrator 
shall  represent  the  creditors  of,  and  all  persons  beneficially  in- 
terested in,  said  estate,  in  any  such  litigation ;  and  generally 
shall  have  all  the  rights  and  powers  and  be  subject  to  the  same 
duties  and  liabilities  as  the  original  executor  or  administrator ; 
provided,  nevertheless,  that  no  substituted  administrator  with 
the  will  annexed  shall  exercise  any  powers  of  sale  conferred  by 
the  will  upon  the  executor  as  such,  or  upon  the  executor  aS 
trustee,  in  any  other  or  different  manner  or  to  any  other  effect 


^'-P.   L.   igoi,  p.  304,  sec.  4.     2  i-'P.   L.    1901.  p.  303,   sec.   2. 

Comp.  Stat.,  p.  2260,  sec.  2d.  Comp.  Stat.,  2259,  sec.  2b. 


Substitution AKV  Administkatiox. 


277 


than  administrators  dc  bonis  iioii  with  the  will  annexed  are  now 
authorized  by  statute  to  exercise  the  same." 

It  is  well  settled  that  an  administrator  dc  lw)iis  iioii  could 
only  demand  the  possession  of  so  much  of  the  estate  of  the 
testator  or  intestate  as  had  not  been  administered,  except  in 
case  of  removal  under  the  statute  ;^=  but  the  power  conferred 
upon  a  substituted  administrator  by  the  provisions  of  the  Act 
of  1901/'^  is  much  more  extensive.  That  act  abolishes  the 
grant  of  administration  dc  bonis  non,  and  by  the  3d  section 
the  administrator  appointed  under  the  act  is  styled  substituted 
administrator,  and  is  entitled  to  demand  and  receive  the  whole 
of  the  personal  estate  of  his  decedent,  except  such  portion  as 
shall  have  been  properly  paid  out  and  disbursed,  and  he  is, 
as  has  been  seen,  expressly  given  power  to  sue  and  recover 
at  law  or  in  equity,  all  the  assets,  from  any  person  or  from  the 
heirs  at  law  or  personal  representatives  chargeable,  or  their 
equivalent  in  value. ^" 

The  duty  of  a  substituted  administrator  is  to  administer  the 
effects  of  the  intestate  which  the  original  administrator  left 
unadministered ;  so  far  as  he  acts,  the  administration  is 
original,^"*  and  a  substituted  administrator  is  responsible  onlv 
for  such  unadministered  assets  as  he  has  received.  He  can  in 
no  way  be  called  upon  to  account  for  the  maladministration  of 
his  predecessor/^ 

Application  for  Substitutionary  Administration. 

The  same  practice  is  followed  upon  an  a])i)lication  for  sub- 
stitutionary administration  as  obtains  upon  an  application  for 
administration  in  an  original  case.^° 

i*P.  L.   1901,  p.  304,   sec.  3.     2  N.  J.  Eq.,  624.    Affirmed,  74  N.  J. 

Comp.  Stat.,  2250.  sec.  2C,  Kq..  853. 

isBradway  v.  Holmes,  50  N.  J.  isDonahay  v.  Hall,  45  N.  J.  I'.q.. 

Eq.,   311.     Carrick   v.   Carrick,   23  •jio-'jiz. 

N.     J.     Eq..     364.       Hoa^land     v.  '^Brownlcc  v.  I.ockwood,  20  N. 

Cooper,  65  N.  J.  Eq.,  407.  J.  Eq.,  239. 

'•'Page  276,  supra.  -'"Sec  "Practice  on  Grant  of  .\d- 

i^Hoagland  v.  Cooper,  65  N.  J.  ministration."'  p.  258,  supra. 
Eq.,  407.     Middleton  v.  Carter,  "]}, 


278  pKoitATH  Law  and  Pkactki:. 

Who  Entitled. 

The  *(kity  fjf  a  substituted  admiuistrator  is  to  administer 
the  effects  of  the  iutestate  which  the  original  administrator  left 
unadministered.  So  far  as  he  acts,  the  administration  is  orig- 
inal. By  force  of  the  statute,  such  administration  must  go  to 
the  next  of  kin,  if  one  of  them,  who  is  not  subject  to  personal 
disqualifying  objections,  will  accept  it.-^  In  the  case  of  sub- 
stitutionary administration  with  the  will  annexed,  the  rules 
controlling  the  grant  of  administration  with  the  will  annexed 
are   applied. -- 

Substitutionary   Administration   After   Forty   Days   from 
Death  of  Executor  or  Administrator. 

If  any  executor  or  administrator,  administrator  with  the 
will  annexed,  substituted  administrator,  or  substituted  admin- 
istrator with  the  will  annexed,  shall  die  before  fully  admin- 
istering the  estate  of  his  testator  or  intestate,  and  the  next  of 
kin,  residuary  legatees  or  persons  by  law  entitled,  shall  not 
apply  for  substitutionary  administration  with  the  will  annexed, 
or  for  substitutionary  administration,  as  the  case  may  require, 
for  forty  days  after  the  death  of  such  executor  or  adminis- 
trator, the  surrogate  may  grant  letters  of  substitutionary  ad- 
ministration with  the  will  annexed,  or  letters  of  substitutionary 
administration,  as  the  case  may  require,  to  any  fit  person  who 
will  accept  the  same.^^ 

Notice   of   Application. 

In  all  cases  where  application  for  letters  of  substitutionary 
administration  is  made  under  the  provisions  of  rule  eight, "^^ 
the  applicant  shall  give  at  least  ten  days'  notice  to  the  heirs, 
widow,  next  of  kin,  residuary  legatees  or  persons  by  law  en- 
titled to  substitutionary  administration  with  the  will  annexed, 
or  substitutionary  administration,  as  the  case  mav  be,  who  are 
residents  of  the  state  of  New  Jersey,  and  not  less  than  ten  nor 
more  than  sixty  days'  notice,  as  the  surrogate  may  by  order 
direct,  to  the  heirs,  widow,  next  of  kin,  residuary  legatees  or 

-^Donahay  v.  Hall,  45  N.  J.  Eq.,       Will  Annexed,"  p.  270,  supra. 
720-722.  -^Orphans'  Court  Rule  8. 

2-See  "Administration  with  the  -''^See  this  page,  supra. 


Administration  When  Death  Presl mki).  279 

persons  by  law  entitled  to  such  substitutionary  administration 
with  the  will  annexed,  or  substitutionary  administration,  as 
the  case  may  be,  who  shall  reside  without  the  state  of  New 
Jersey,  or  to  those  of  them  whose  residences  or  addresses  he 
can  ascertain,  of  his  intention  to  make  such  application ;  which 
notices  may  be  sent  by  mail  with  the  postage  thereon  prepaid. 
Proof  of  service  of  the  aforesaid  notices  shall  be  tiled  with  the 
surrogate.-* 

ADMINISTRATION    WHEN    DEATH    PRESUMED. 

Administration  in  Case   Resident  of  This   State  Absents 
or  Conceals  Himself  for  Seven  Years. 

Whenever  any  person,  being  a  resident  of  this  state,  shall 
remain  beyond  the  seas,  or  absent  himself  or  herself  from  this 
state,  or  conceal  himself  or  herself  in  this  state  for  seven  years 
successively,  he  or  she  shall  be  presumed  to  be  dead ;  and  the 
ordinary  or  surrogate  of  the  county  in  which  said  person  re- 
sided at  the  time  when  he  or  she  went  beyond  the  sea  or  ab- 
sented or  concealed  himself  or  herself  as  aforesaid,  shall. 
upon  application  in  writing  made  to  either  for  the  purpose, 
by  any  next  of  kin  of  such  person,  make  an  order  that  cause 
be  shown,  before  the  ordinary  or  the  surrogate  of  said  county, 
at  a  certain  time  and  place  therein  to  be  exi)ressed,  not  less 
than  thirty  days  nor  more  than  three  months  from  the  time 
of  the  making  such  order,  why  a  decree  should  not  be  made 
declaring  said  person  to  be  dead,  or  in  case  there  shall  be  per- 
sonal property  belonging  to  said  person,  why  letters  of  adminis- 
tration should  not  be  granted  to  the  next  of  kin  making  the 
application,  or  to  some  other  person  ;  which  order  shall  be 
published  in  such  manner  as  the  ordinary  or  surrogate  making 
the  same  shall  direct,  and  if  at  the  time  so  designated  or  to 
which  the  same  may  be  adjourned,  it  shall  be  proven,  to  the 
satisfaction  of  the  ordinary  or  surrogate,  that  such  person  has 
remained  beyond  the  sea  or  absented  himself  or  herself  from 
this  state,  or  concealed  himself  or  herself  in  this  state  for 
seven  years  then  last  past  successively,  or  has  not  been  heard 
of  or  from  during  said  period,  and  sufficient  cause  shall  not 

-••Orplians'  Court  Rule  9. 


28o  Probatp:  Law  and  Practice. 

be  shown  to  the  contrary,  then  the  said  ordinary  or  surrogate 
may  make  a  decree  declaring  the  said  person  to  be  dead,  and 
may  also  grant  letters  of  administration  of  the  goods,  chattels 
and  credits  of  said  person  to  the  next  of  kin  making  such  ap- 
plication,  or  to  such  fit  and  proper  person  as  the  said  ordinary 
or  surrogate  may  deem  advisable,  upon  his  or  her  giving  bond 
to  the  ordinary  in  such  manner  as  is  required  in  granting  let- 
ters of  administration  in  other  cases.-' 

It  will  be  observed  that  this  amendment  authorizes  the  sur- 
rogate to  "make  a  decree  declaring  the  said  person  to  be  dead."' 
and  also  authorizes  him  to  grant  letters  of  administration.  The 
original  act  merely  authorized  the  surrogate  to  grant  adminis- 
tration in  such  a  case.  It  is  quite  clear,  therefore,  that  under 
this  act,  a  person  may,  in  a  proper  case,  be  declared  dead, 
when  such  action  be  desirable  for  any  purpose,  even  though 
there  be  no  goods  and  chattels  upon  which  administration 
may  be  granted. 

Effect  of  Adjudication  of  Death. 

Whenever  any  person  shall  have  been  declared  to  be  dead 
under  the  provisions  of  the  first  section  of  this  act,  it  shall 
be  lawful  for  any  person  or  persons  owning  an  estate  in  fee 
or  other  interest  in  any  real  estate  which  would  have  been  sub- 
ject to  an  estate  by  the  courtesy  or  dower  of  any  such  person 
so  declared  to  be  dead,  if  living,  said  person  or  persons  may  as- 
sign, convey,  sell,  mortgage  and  lease  or  devise  any  interest, 
estate  or  right  that  he,  she  oi"  they  may  have  in  any  real 
estate,  free  and  clear  of  any  estate  by  the  courtesy  or  dower 
of  any  such  person  so  declared  to  be  dead  ;  and  every  deed, 
release,  receipt,  assignment,  discharge  or  covenant  for  the  sale, 
lease,  release,  assignment,  discharge,  or  conveyance  of  the  said 
real  estate  or  any  interest  therein,  heretofore  or  hereafter 
made,  when  duly  executed  and  acknowledged  in  the  manner 
provided  by  law  for  the  conveyance  of  real  estate,  shall  be 
free  and  clear  of  any  estate  by  the  courtesy  or  dower  therein 
of  such  person  so  declared  to  be  dead.-*^ 

-■'Orplians'    Court    Act,    sec.   30.      liv  P.  L.,   191T,  p.  539,  sec.   I. 
3   Comp.   Stat.,   3823,   as   amended  -•"'?.  L.   191 1,  p.  538.  sec.  2. 


ADMIXliTKATIOX     WhICX     DEATH     PRESUMED.  281 

Administration    in    Case    Non-Resident    Absents    Himself 
From  Home  for  Seven  Years. 

Whenever  a  person,  not  a  re.siclenl  of  this  .-.late,  but  having- 
goods,  chattels,  moneys  or  effects  in  this  state,  shall  absent 
himself  or  herself  from  the  place  of  his  or  her  domicile  for 
seven  years  successively,  the  ordinary  or  surrogate  of  any 
county  in  which  any  of  such  property  may  be,  shall,  upon  ap- 
plication in  writing,  made  to  either  for  tlie  purpose,  by  any 
of  the  next  of  kin  of  such  non-resident  absentee,  make  an  order 
that  cause  be  shown,  before  him,  at  a  certain  time  and  place 
therein  to  be  expressed,  not  less  than  thirty  days  nor  more  than 
three  months  from  the  time  of  making  such  order,  why  let- 
ters of  administration  should  not  be  granted  to  the  next  of 
kin  making  such  application,  or  some  other  fit  person,  which  or- 
der shall  be  published  in  such  manner  as  the  ordinary  or  surro- 
gate making  the  same  shall  direct;  and  if  the  next  of  kin 
making  such  application  shall,  at  the  time  and  place  designated 
as  aforesaid,  prove,  to  the  satisfaction  of  the  ordinary  or 
surrogate  that  such  non-resident  has  absented  himself  or  her- 
self from  the  place  of  his  or  her  domicile  for  seven  years 
then  last  past  successively,  and  has  not  been  heard  of  or  from 
during  said  period,  then  the  said  non-resident  shall  be  pre- 
sumed to  be  dead,  and  if  no  sufficient  cause  shall  appear  to  the 
contrary,  the  said  ordinary  or  surrogate  may  thereupon  grani 
letters  of  administration  of  the  goods,  chattels  and  credits  of 
said  non-resident  absentee  to  the  next  of  kin  making  such  ap- 
plication, or  to  such  fit  and  proper  person  as  the  said  ordinary 
or  stirrogate  may  deem  advisable,  upon  his  or  her  giving  bond 
to  the  ordinary,  in  the  same  manner  as  is  required  in  granting 
letters  of  administration  in  other  cases.-' 

Duties  of  Administrator  of  Absent  or  Concealed  Person. 

Any  administrator  appointed  under  sections  thirty  and 
thirty-one  shall  i)roceed  with  the  administration  and  settlement 
of  the  estate  of  such  person  in  the  same  manner  as  if  such  per- 
son had  died  in  this  state  intestate,  and  shall  make  a  just  and 

2^0rphans'    Court   Act.   sec.   31. 
jt,  Comp.  Stat.,  3824. 


282  Pkocatk  Law  and  Practice. 

equal  distribution  thereof,  after  the  payment  of  debts  and 
just  expenses  among  those  who  would  be  entitled  by  law  to  re- 
ceive the  same  if  such  person  had  died  intestate,  upon  his,  her 
or  their  giving  to  the  said  administrator  a  bond  or  bonds,  with 
good  and  sufficient  sureties,  with  condition  that  he,  she  or  they 
shall  respectively  refund  and  pay  back  to  said  administrator  the 
share  or  portion  of  the  said  estate  so  received  by  them  re- 
spectively, with  the  accumulations  thereof,  in  case  the  person 
so  remaining  beyond  the  sea  or  absenting  himself  or  herself 
from,  or  concealing  himself  or  herself  within  this  state,  or 
absenting  himself  or  herself  from  the  place  of  his  or  her  domi- 
cile, shall,  at  any  time  afterward,  re-appear  and  claim  the  same, 
which  said  bond  or  bonds  shall  be  a  full  and  complete  pro- 
tection to  such  administrator  in  case  such  person  shall  re- 
appear and  claim  his  or  her  estate  after  the  same  has  been  dis- 
tributed in  accordance  with  the  provisions  hereof ;  but  such 
administrator  shall  assign  the  said  bond  or  bonds  to  such  per- 
son so  re-appearing  and  claiming  his  or  her  estate,  and  shall 
not  thereafter  be  liable  for  any  act  done  by  him  under  and 
by  virtue  of  his  office  of  administrator.'-'** 

TEMPORARY  OR  SPECIAL  ADMINISTRATION. 

Jurisdiction  to  Grant. 

There  were  various  special  forms  of  administration  known 
and  used  in  the  ecclesiastical,  prerogative,  surrogates'  and  pro- 
bate courts,  here  and  elsewhere,  prior  to  the  passage  of  the 
Act  of  March  2d,  1795,"''  establishing  the  orphans'  court  and 
defining  the  jurisdiction  of  the  ordinary  and  his  surrogates  ; 
and  the  statute  must  be  construed  with  reference  to  such 
knowledge  and  usage.  But  this  is  not  all  the  certainty  we 
have,  for  the  law  is  its  own  interpreter.  Section  10  of  the 
act  last  cited,  after  giving  the  form  of  the  bond  to  be  taken  in 
the  case  of  a  general  administration,  continues  "that  like  bonds 
with  conditions  suited  to  the  nature  of  the  respective  cases 
shall  be  given  by  administrators  durante  minorc  cctate,  durante 
absentia,  pendente  lite,  cum  testamento  anncxo,  or  by  what- 

-sQrphans'   Court   Act,   sec.   32.  --'Paterson's  Laws,  p.   154. 

3  Comp.  Stat.,  3824. 


Special  Forms  of  Adminjstratiox.  283 

ever  name  or  description  they  may  be  known,  or  distinguished." 
This  section,  in  shghtly  changed  verbiage,  was  incorporated 
into  our  present  Orphans"  Court  Act.^"  All  these  different 
forms  of  administration  were  therefore  in  remembrance  and 
within  the  sco]x^  of  the  legislative  purpose  when  the  present 
Orphans'  Court  Act  was  enacted. •'■' 

Administration  Durante  Minora  ^tate. 

If  the  person  appointed  sole  executor,  or  he  upon  whom, 
in  case  of  intestacy,  the  right  of  administration  has  devolved, 
under  the  statute,  be  within  age,  administration  durante  niinorc 
(date,  i.  e.,  until  he  becomes  of  age,  will  be  granted  to  his 
guardian:'-  but  where  there  are  several  executors  or  next  of 
kin  entitled  to  administration,  and  one  of  them  is  of  full  age, 
no  administration  of  this  kind  should  be  granted. ■'■■'  This  form 
of  administration  is  recognized  in  New  Jersey."^ 

Administration  Durante  Absentia. 

At  common  law,  if  an  executor  named  in  a  will,  or  the 
next  of  kin,  were  out  of  the  state,  the  prerogative  court  had 
power,  at  any  time  before  probate  granted  or  letters  of  ad- 
ministration issued,  to  grant  administration  durante  absentia ; 
l)Ut  when  probate  was  once  granted,  or  letters  issued,  and 
the  executor  or  administrator  had  gone  abroad,  the  eccles- 
iastical courts  refused  to  grant  new  administration.''-"'  This 
form  of  administration  is  recognized  in  Xew  Jersey.''" 

Appointment  of  Administrator  for  Particular  Purpose. 

Probate  courts  have  inherent  power  to  grant  limited  adminis- 
tration, at  their  discretion,-  whenever  it  is  neces.sary  for  the 
jnirposes  of  justice.'''     Thus,  letters  of  limited  administration 

soOrphans'    Court    .A.ct,    sec.   47.  ''^Sfc   Orphans'   Court   Act.   sec. 

3  Comp.  Stat.,  3829.  47.  page  3i<J,  intra,  and  Woodruff. 

^iBenson  v.  Wolf,  43  N.  J.  L.,  v.  Snoover,  45  Atl.  Rep.,  980. 

jg,  -"'^i  W'illiams  on  Kxecutors.  433. 

■■'-I  Williams  on  ]'",xecutors,  416.  •'■"v^ee    "Temporary   and    Special 

Woodruff  V.  Snoover,  45  Atl.  Rep.,  .'Xdminislration,"    "Jurisdiction    to 

rjSo,  ('.rant."  p.  _'<Sj.  supra. 

"■U  Williams  on  I-"xecutors,  416.  ^'Woenier    on     .Administration, 

sec,  184. 


284  Probate  Law  and  Practick. 

may  be  granted  to  a  mortgagee  on  the  estate  of  a  deceased  sub- 
sequent mortgagee  of  the  same  premises  who  was  a  non- 
resident, no  administration  having  been  taken  out  here  on  his 
estate ;  but  such  administration  will  be  limited  to  the  pro- 
ceedings already  taken,  or  that  may  thereafter  be  taken  in  the 
pending  foreclosure  or  in  any  other  supplementary  proceedings 
for  the  relief  of  the  mortgagee.^®  Such  administration  is  dis- 
tinguishable from  a  grant  of  administration  pendente  lite  to 
protect  the  property  of  the  deceased.^" 

ADMINISTRATION  PENDENTE  LITE. 

When  Necessary. 

An  administrator  pendente  lite  will  be  appointed  by  the 
orphans'  court  or  Ordinary  wherever,  by  reason  of  controversy 
as  to  the  right  of  administration,  the  probate  of  a  will,  or  the 
right  to  letters  testamentary,  it  becomes  necessary  or  advisable 
to  appoint  a  disinterested  person  to  care  for  and  preserve  the 
estate,  though  at  common  law  no  administration  pendente  lite 
would  be  granted  where  the  controversy  was  respecting  a 
will;''"  and  in  general  an  administrator  pendente  lite  will  be 
appointed  in  all  cases  where  the  Court  of  Chancery  would  ap- 
point a  receiver.*^ 

Jurisdiction. 

The  Prerogative  Court  has  power  to  grant  letters  of  adminis- 
tration pendente  lite,^'-  and  the  orphans'  court  has  a  like  juris- 
diction.*^ The  power  to  appoint  an  administrator  pendente  lite 
also  exists  where  the  contest  is  being  carried  on  in  another 

s^Lothrop's   Case,  33  N.  J.  Eq.,  ^^Lq^i-j^qp's  Case,  2>2,  N.  J.  Eq.. 

246.  246-247. 

39Benson  v.  Wolf.  43   N.  J.  L.,  ^■'•i  Woerner  on  Administration. 

78-82.  406.     Matter  of  Dennis  Mulcahy. 

*°i  Williams  on  Executors,  427.  Essex    Orphans'    Court,    July    29. 

Davenport's    Case.   68    N.    J.    Eq.,  1901.  Skinner.  J.,  and  see  Benson 

611.  V.  Wolf,  43  N.  J.  L.,  78-79.     Dav- 

*'i  Williams  on  Executors,  430.  enport's  Case,  68  N.  J.  Eq.,  611. 
and  see  Reporter's  Note  to  Dietz 
V.  Dietz.  38  X.  J.  Eq.,  483. 


Administration  Pendente  Lite.  285 

court,  or  pending  an  appeal  of  proceedings  on  removal  of  ai. 
executor  or  administrator.** 

Pending  the  determination  of  an  appeal  from  a  decree  of  the 
orphans'  court  removing  an  executor,  the  Prerogative  Court 
has  the  power  to  make  proper  orders  to  protect  the  estate  from 
waste,  and  where  necessary  may  appoint  an  administrator 
pendente  life;  and  the  court  may  resort  to  the  evidence  in  the 
transcript  sent  up  from  the  orphans'  court  in  order  to  de- 
termine whether  the  principal  case  before  it  requires  the  ex- 
ercise of  the  power. ■'^ 

Application. 

Application  for  letters  of  administration  pendente  lite  may 
be  made  by  any  person  interested  in  the  conservation  of  the 
estate ;  thus,  a  creditor  of  the  decedent  may  make  such  an 
application.*'' 

The  application  should  be  by  petition,  sworn  to  by  petitioner. 
The  petition  should  recite  the  facts  which  make  the  appoint- 
ment of  such  an  administrator  necessary  or  advisable,  and 
should  disclose  the  value  and  character  of  the  property  of 
the  decedent,  and  the  names  and  residence  of  all  parties  in 
interest. 

Notice  of  Application. 

Administrators  pendente  lite  are  the  appointees  of  the  court, 
and  are  not  to  be  considered  merely  as  the  nominees  or  agents 
of  the  several  parties  on  whose  renunciations  they  are  selected. 
The  statutory  rule  of  administration  as  to  the  widow  or  next 
of  kin  is  not  operative  as  to  this  class  of  administration.*" 

While  notice  of  the  application  to  all  parties  in  interest  is 
usually  required,  still  it  is  not  indispensable.  The  court,  in 
the  exercise  of  a  sound  discretion,  may,  on  its  own  motion, 
make  such  appointment.  When  the  court  conceives  that  the 
corpus  of  the  estate  is  in  such  jeoi)ardy  that  its  preservation 
requires  the  court's  action,  it  should  appoint  its  officer  as  ad- 

i'«Davenport's    Case,    68    N.    J.  ^ei^othrop's  Case,  33  N.  J.  Hq., 

Eq.,  611.  246. 

^■''In  re  Marsh's  Estate,  55  Atl.  ^^Davenport's    Case,    68    N.    J. 

T^cp..  299.  Eq.,  611. 


286  Pkobatf;  Law  and  Practice. 

niinistrator  pendente  lite  to  protect  the  estate  and  only  in  case 
of  an  abuse  of  this  discretion  can  rehef  be  had  by  appeal.  Such 
a  power  in  the  court  is  essential  to  the  proper  administration  of 
litigated  estates.*^ 

Who  Entitled. 

The  selection  of  the  person  appointed  administrator  pendente 
lite  is  a  matter  resting  entirely  in  the  discretion  of  the  court.*'' 
The  statute  establishing  the  right  to  administration  does  not 
apply  to  administrations  pendente  lite.  It  is  the  practice  of  the 
court  to  decline  to  put  a  litigant  party  in  possession  of  the 
property  by  granting  administration,  pending  suit,  to  him,  but 
to  grant  it  to  a  nominee  presumed  to  be  indifferent  between  the 
contending  parties.^"  Administrators  pendente  lite  are  officers 
of  the  court,  called  into  being  to  aid  the  court,  in  fact,  to  take 
the  place  of  the  court,  in  conserving  the  estate  in  independent 
and  disinterested  hands  pending  litigation.  The  court  should 
not  appoint  nominees  of  either  party,  but  should  select  indif- 
ferent persons,  except  in  certain  cases  where  executors  may 
be  appointed  administrators  pendente  lite ;-'^  as,  for  instance, 
where  the  executor  is  not  interested  in  the  controversy,  in 
which  case  considerations  of  economy  in  the  administration  of 
the  estate  demand  his  appointment /'- 

Bond. 

An  administrator  pendente  lite  \s  required  to  give  security  in 
such  sum  as  the  court  may  require,  the  amount  required  resting 
in  the  sound  discretion  of  the  court. •'^" 


^^Davenport's    Case,    68    N.    J.  •''AVoenier    on    Administration, 

Eq.,  6ir.  sec.  i8i.     Davenport's  Case,  68  N. 

•«"Dietz   V.   Dietz,   38   N.   J.   Eq..  J.  Eq..  611. 

483.     Davenport's   Case,   66  N.   J.  ^-Woerner    on    Administration. 

Eq.,  300.     Affirmed,  68  N.  J.  Eq..  sec.  181.     Haas  v.  Childs,  4  Dem., 

611.  137. 

•"•"Dietz   v.    Dietz,   38   N.   J.   Eq.,  ^^'D'ltiz   v.    Dietz,   38   N.   J.    Eq., 

483,  and   see   Reporter's   Note,   ib.  483.     Davenport's   Case.   66   N.   J. 

Davenport's    Case.   68   N.   J.   Eq.,  Eq..  300.     Affirmed,  68  N.  J.  Eq., 

6ir.  611. 


Administration  Pendente  Lite.  287 

Powers  and  Duties. 

An  administrator  pendente  life  has  all  of  the  powers  and  is 
held  to  the  performance  of  all  of  the  duties  of  a  general  ad- 
ministrator, except  that  of  distributing  the  estate.  It  is  a 
mistake  to  suppose  that  an  administrator  pendente  lite  is  an 
officer  of  the  court  merely  to  keep  safely  the  goods  of  the 
decedent  during  the  controversy  concerning  the  granting  of 
letters  of  administration  or  of  letters  testamentary,  that  he  is 
only  a  stakeholder,  and  that  no  action  can  be  brought  by  him 
or  sustained  against  him  except  by  permission  of  the  court. 
The  duties  of  the  office  are  not  thus  limited.  He  not  only 
holds  the  property  until  the  suit  terminates,  but  may  maintain 
actions  for  recovering  debts  due  to  the  deceased,  collect  his 
effects,  and  even  obtain  the  possession  of  a  leasehold  estate 
by  ejectment;  but  his  power  does  not  extend  either  to  vest 
or  distribute  the  proceeds. 

As  an  incident  to  his  office,  he  may  sue  or  be  sued,  may  col- 
lect assets  and  pay  debts;  but  he  cannot  pay  legacies  or  make 
distribution  of  the  estate,  for  the  rights  of  the  parties  claiming 
the  fund  and  its  distribution  are  in  litigation,  and  he  may 
not  anticipate  the  result.  When  these  rights  are  established, 
his  functions  cease,  and  he  must  pay  over  all  he  has  in  hands  in 
his  character  of  administrator  to  the  persons  pronounced  by 
the  court  to  be  entitled  to  further  administration  and  distribu- 
tion. He  may  perform  all  such  acts  as  cannot  be  delayed 
without  prejudice  or  danger  to  the  estate;  and  creditors  will 
not  be  obliged  to  postpone  their  actions  until  they  may  be 
prejudiced  in  the  collection  of  their  claims  or  barred  by  the 
statute  of  limitations,  while  the  parties  interested  in  the  estate, 
or  its  administration,  are  litigating  their  rights.^* 

So  an  administrator  pendente  lite  may  make  expenditures 
for  advertising  the  sale  of  the  personal  property  belonging  to 
the  estate,  or  for  preparing  a  catalogue  of  decedent's  library, 
w^hich  it  was  necessary  to  sell ;"  and  if  he  expends,  in  payment 
of  debts  of  the  estate  and  expenses  of  administration,  a  sum 

^*Bcnson  v.  Wolf.  43  N.  J.  L.,  ^'-Matter    of    Dennis    Mulcahy, 

78.  Essex    Orphans'    Court,    July    29, 

1901,   Skinner,   J. 
20 


288  Probate  Law  and  Practice. 

exceeding  the  personal  estate  of  decedent,  he  is  entitled  to  be 
subrogated  to  the  rights  of  the  creditors  against  the  lands  of 
the  deceased.^*' 

If  an  administrator  pendente  lite  pays  a  legacy,  which  the 
character  of  his  appointment  does  not  authorize  him  to  do, 
he  will  nevertheless  be  allowed  such  payment  in  his  account- 
ing, provided  the  party  who  received  it  was  entitled  to  it,  and 
the  estate  able  and  liable  to  pay  the  same  after  all  prior  charges 
were  provided  for.^^  So  an  administrator  /'(?//rf^7?^^  lite  may 
bring  suits  with  all  of  the  authority  of  a  general  adminis- 
trator,^^ and  can  bind  the  estate  by  a  settlement  of  a  claim 
belonging  to  it;^"  he  can  also  be  sued  for  a  debt  of  the  in- 
testate."^  But  he  can  sell  property  of  the  estate  which  he  does 
not  need  to  convert  into  money  to  enable  him  to  execute  his 
trust  only  when  he  acts,  in  so  doing,  upon  an  honest  and  well- 
founded  apprehension,  predicated  upon  the  exercise  of  a 
reasonable  care  and  caution,  that  to  longer  hold  it  will  endanger 
or  prejudice  the  estate.*'^ 

Duration  of  Appointment. 

The  authority  of  administrators  pendente  lite  is  more  lim- 
ited than  that  of  any  other  administrator,  and  ex  vi  termini 
ceases  the  moment  the  suit  pending  which  they  were  appointed 
is  terminated.  If  the  suit  be  concerning  the  probate  of  a  will, 
and  the  will  is  established,  they  are  at  once  superseded  by 
the  executor,  or,  if  occasion  requires,  by  the  administrator  with 
the  will  annexed,  and  can  then  no  longer  act  as  administrators, 
either  in  relation  to  third  persons  or  to  each  other.  If,  on  the 
other  hand,  the  will  is  refused  probate,  administration  at  large 
is  to  be  granted  to  those  who  by  law  are  entitled  to  it.*'- 

^^Woolley  V.  Pemberton,  41   N.  ^oGj-gce  v.  Helm,  gi  Mich.,  450; 

J.    Eq.,    394,    and    cases    cited    on  51  N.  W.  Rep.,  iro6. 

P-  397-  ooBensoj^  y_  ^NoM,  43  N.  J.  L., 

^■^Steelman   v.   Wheaton,   y2   N.  y2>. 

J.   Eq.,   626.     Affirmed,    73   N.   J.  «' Pluck  v.  Lake,  54  N.  J.   Eq., 

Eq.,  743-  638. 

ssBenson  v.  Wolf,  43  N.  J.  L.,  R^Oavenport's    Case,    68    N.    J. 

78-81.     Estate    of    Calvin,   3    Md.  Eq..  611.     Cole  v.  Wooden,  18  N. 

Ch.,  278.    Kaminer  v.  Hope,  18  S.  J.  L.,  15. 
C,  S6i. 


Administration  Pendente  Lite.  289 

Although,  as  has  been  said,  the  functions  of  an  administrator 
pendente  lite  cease  when  the  suit  in  which  he  is  appointed  is 
at  an  end,  the  suit  is  not  at  an  end  if  there  be  an  appeal  pend- 
ing from  the  decree  granting  general  administration  or  the 
decree  granting  probate,  as  the  case  may  be,  until  the  appeal 
shall  have  been  determined  ;  and  the  powers  and  functions  of 
an  administrator  pendente  lite,  which  are  suspended  by  the  ad- 
mission of  the  will  to  probate  and  the  qualification  of  the  ex- 
ecutors, revive  on  appeal  from  the  decree  of  probate,  and 
continue  until  the  determination  of  the  appeal.'^"' 

Duties  after  Termination  of  Litigation. 

When  the  litigation  in  reference  to  the  will,  pending  which 
an  administrator  pendente  lite  was  appointed,  has  been  con- 
cluded, his  duty  is  to  account  for  what  he  has  received  and  to 
pay  or  deliver  over  whatever,  if  anything,  may  appear  to  re- 
main in  his  hands,  to  the  person  or  persons  pronounced  by 
the  court  to  be  entitled  thereto  for  further  administration. ''■^ 

Removal.  • 

As  officers  of  the  court,  administrators  pendente  lite  are  re- 
movable at  its  pleasure. *^-^ 

AppeaL 

An  appeal  will  lie  from  a  decree  of  the  orphans'  court  dc: 
ciding  whether  or  not  an  administrator  pendente  lite  should  be 
appointed  ;*'*'  but  no  appeal  will  lie  because  the  appointee  of  the 
court  is  objectionable  to  either  party,  or  because  of  the  amount 
of  the  bond  required  by  the  court  to  be  given  by  him.  The  se- 
lection of  an  administrator  pendente  lite  and  the  amount  of  se- 
curity to  be  required  of  him  are  matters  within  the  di-scretian 
of  the  orphans'  court,  and  a  party  who  has  applied  to  that  court 
for  the  appointment  of  an  administrator  pendente  lite  is  not 

63Brown  v.  Ryder,  42  N.  J.  Eq.,  ''J^Davcnport's    Case,    68    N.     J. 

.356.  Eq.,    611. 

«*Woolley  V.  Pemberton,  41  N.  ««Dietz  v.   Dietz,  38  N.  J.  Eq.. 

J.  Eq.,  394.  483.     Davenport'.s  Case,  68  N.  J. 

Eq.,  611. 


29©  Probate  Law  and  Practice. 

aggrieved  by  a   decree   for  the  appointment   of   a   particular 
person,  and  fixing  the  security  to  be  given  by  him.*'' 

EXECUTORS  DE  SON  TORT. 

Who  Accountable  as  Executors  De  Son  Tort. 

Whereas  it  is  sometimes  practiced  to  the  defrauding  of 
creditors,  that  such  persons  as  are  entitled  to  the  administration 
of  the  goods  of  others  dying  intestate,  if  they  require  it,  will 
not  accept  the  same,  but  sufifer  or  procure  the  administration 
to  be  granted  to  others  of  indigent  circumstances,  from  whom 
they,  or  others,  by  their  means,  by  deeds  of  gifts,  or  by  letters 
of  attorney,  obtain  the  estate  of  the  intestate  into  their  hands, 
and  yet  be  not  subject  to  the  payment  of  the  debts  of  the  in^ 
testate,  and  so  the  credtiors  cannot  have  or  recover  their  just 
debts  and  demands ;  therefore  be  it  enacted,  that  all  and  every 
person  and  persons,  wJio  shall  obtain,  receive  and  have,  any 
goods  or  debts  of  any  person  dying  intestate,  or  a  release,  or 
other  discharge  of  any  debt  or  duty  that  belonged  to  the  in- 
testate, upon  any  fraud  as  aforesaid,  or  without  such  valuable 
consideration,  as  shall  amount  to  the  value  of  the  said  goods 
or  debts,  or  near  thereabouts  (except  it  be  in  or  towards  the 
satisfaction  of  some  just  debt,  of  the  value  of  the  same  goods 
or  debts,  to  him  or  her  owing  by  the  intestate  at  the  time  of 
his  or  her  decease) ,  shall  be  charged  and  chargeable  as  ex- 
ecutor of  his  or  her  own  wrong,  so  far  only  as  all  such  goods 
and  debts  coming  to  his  or  her  hands,  or  whereof  he  or  she  is 
released  or  discharged  by  such  administrator,  will  satisfy ;  de- 
ducting, nevertheless,  allowance  of  all  just  debts,  upon  good 
consideration,  and  without  fraud,  owing  to  him  or  her  by  the 
intestate,  at  the  time  of  his  or  her  decease,  and  all  payments 
made  by  him  or  her,  which  lawful  executors  or  administrators, 
might  and  ought  to  have  and  pay  by  the  laws  of  this  state.^* 

Where  after  the  death  of  her  husband  a  widow  assumes  con- 
trol of   his   estate  without   any   administration   being  granted 

e^Dietz   v.   Dietz,  38   N.  J.   Eq.,  682  Comp.  Stat.,  p.  2260,  sec.  3. 

483.     Davenport's  Case,  66  N.  J.  ^^2  Comp.  Stat.,  p.  2260,  sec.  3, 

Eq.,  300.     Affirmed,  68  N.  J.  Eq.,  and  see  also  Tuite  v.  Tuite.  72  N. 

61 1.  J.  Eq.,  740. 


Contested  Administration.  291 

thereon,  she  is  chargeable  with  the  value  of  the  property  de- 
rived from  her  husband,  less  all  payments  made  by  her  with 
which  a  lawful  administrator  might  have  been  credited  under 
the  express  provisions  of  the  statute."'-*  So  an  executor  who 
does  not  prove  the  will  of  his  testator,  but  disposes  of  his 
personal  property  otherwise  than  as  directed  by  the  will,  is 
responsible  to  the  legatees  of  the  testator  for  this  conversion  ; 
and  his  executor  or  administrator  is  likewise  responsible  to 
such  legatees.'"  But  a  person  becomes  an  executor  de  son  tort 
only  when  intermeddling  with  assets  which  affect  the  adminis- 
tration;  and  therefore  persons  who,  under  a  void  provision  of 
a  will,  receive  and  deal  in  real  estate  and  the  revenues  there- 
from, are  not  executors  de  son  tort,  as  such  assets  go  to  the 
heirs. "^ 

CONTESTS  AS  TO  RIGHT  OF  ADMINISTRATION. 

How  Inaugurated. 

It  has  been  seen  that  the  statute  vests  in  the  surrogate  juris- 
diction to  grant  administration  of  the  estates  of  intestates  resi- 
dents of  his  county,  unless  a  dispute  arises  as  to  the  right  of  ad- 
ministration, in  which  case  he  is  required  to  issue  citations 
to  all  persons  concerned  to  appear  in  the  orphans'  court  of  the 
same  county,  which  court  is  required  to  hear  and  determine 
the  matter  in  controversy. ■^- 

A  dispute  as  to  the  right  to  administration  is  inaugurated  by 
filing  with  the  surrogate  either  a  caveat  against  the  grant  of 
administration,  a  cross-petition  for  administration  or,  after  the 
grant  of  administration  by  the  surrogate,  by  appeal  to  the  or- 
phans' court.  Any  of  these  methods  will  raise  a  dispute  as  to 
the  right  of  administration,  and  requires  the  surrogate  to  issue 
citations.  A  caveat  or  cross-petition  may  be  filed  at  any  time 
prior  to  the  grant  of  letters  by  the  surrogate. 

To  entitle  a  person  to  the  right  to  contest  the  grant  of  ad- 
ministration, he  must  be  a  person  in  interest,  that  is,  one  who 

^"Thiefes    v.    Mason,    55    N.    J.  ''^Orphans'   Court   Act,    sec.   26. 

Eq.,    456.  Sec  p.  251,  supra. 

7^Mink  V.  WalktT.  81   N.  J.  Eq., 
1 12. 


292  Probate  Law  and  Practice. 

would  be  injuriously  affected  by  the  grant  of  letters  to  the 
petitioner,  or  whose  rights  would  be  violated.  Thus  where  a 
person  claiming  to  be  the  widow  of  intestate,  when  she  was  not 
so  in  fact,  made  application  for  administration  upon  his  estate, 
his  next  of  kin  have  the  right  to  contest  her  right  to  administra- 
tion ;  and  there  can  be  no  doubt  that  a  creditor  of  an  intestate 
may  contest  the  right  to  administration  of  one  whom  he  be- 
lieves to  be  an  improper  appointee  and  whose  appointment 
would  endanger  his  claim. 

A  caveat  or  cross-petition  may  be  withdrawn,  and  the  juris- 
diction of  the  surrogate  restored,  at  any  time  before  the  cita- 
tions issued  by  the  surrogate  have  been  returned  served.'^ 

Proceedings  in  Orphans'  Court. 

Upon  the  return  of  the  citation  into  the  orphans'  court,  the 
original  petitioner  calls  witnesses  to  substantiate  his  claims. 
After  he  has  closed  his  case,  those  of  the  objector  are  heard. 

Costs  of  Contest  as  to  Right  of  Administration. 

Where  there  is  a  contest  as  to  which  one  of  two  or  more 
persons  shall  be  appointed  as  administrator,  the  costs,  as  a 
rule,  should  be  imposed  on  the  parties,  or  one  of  them,  and 
not  on  the  estate ;' *  but  where  the  administrator  whose  title 
is  impeached  is  a  stranger  who  successfully  defends  his  title  to 
the  ofifice,  a  counsel  fee  will  be  allowed  out  of  the  estate.^^ 

^3See  "Withdrawal  of  Caveat,"  "^Webb  v.  Rogers,   19  N.  J.  L. 

p.  198,  supra.  J.,  79- 

"■*Cramer  v.  Sharp,  49  N.  J.  Eq., 
558-563. 


CHAPTER  XVII. 
TRUSTEES. 

Nature  of  Office. 

A  trustee  is  one  in  whom  some  estate,  interest  or  power  in 
or  affecting  property  is  vested  for  the  benefit  of  another.  While 
an  executor  is  a  trustee  in  the  broadest  sense,  he  is  not  one  in 
the  general  acceptation  of  the  term.^  The  offices  of  executor 
and  of  trustee  are  distinct,  and  may  be  vested  in  different 
persons ;  and  when  they  are  vested  in  the  same  person,  the 
functions  of  each  are  nevertheless  to  be  performed  by  him  in 
each  respective  capacity.  His  respective  duties  as  executor  and 
trustee  are  as  distinct  as  though  these  duties  were  vested  in 
different  persons,  and  his  accounts  in  these  respective  capaci- 
ties should  be  kept  separately. - 

What   Constitutes  an  Appointment  of  a  Trustee. 

The  language  in  which  the  trusteeship  is  created  is  imma- 
terial, as  is  the  term  by  which  the  office  is  named  by  the  will, 
whether  executor  or  trustee,  or  whether  it  is  given  no  name ; 
as  in  a  case  where  a  testator  gives  all  his  property  to  a  per- 
son and  directs  him  to  pay  the  income  to  one  for  life,  and  the 
residue  to  another  at  the  termination  of  the  life  estate.  The 
office  of  executor  or  trustee  is  determined  by  the  character  of 
the  estate  confided  to  the  nominee  by  the  will,  and  the  powers 
to  be  exercised  by  him  as  the  representative  of  the  testator. 
Any  person  who  by  will  is  required  to  perform  duties,  or  upon 
whom  devolves  a  trust  not  pertaining  to  the  office  of  an  ex- 

^In  re  Kibbler's  Case,  78  N.  J.      Eq.,   166.     In  re  Quimby's  Estate, 
Eq.,  217.     In  re  Quimby's  Estate,      84  N.  J.  Eq.,  i. 
84  N.  J.  Eq.,  I.  3Brush  v.  Young,  28  N.  J.   L.. 

-Ayres    v.    Shepherd,    64    N.    J.       237.     In  re  Hibbler's  Case,  78  N. 

J.  Eq.,  217. 

293 


294  Probate  Law  and  Practick. 

editor,  is  a  trustee.^  So  an  executrix  of  a  will  which  gives  her 
a  life-estate  in  the  real  and  personal  property  of  the  testator 
becomes  a  trustee  for  the  residuary  legatees,  on  proving  the 
will,  and  is  under  obligation  to  keep  accurate  accounts  of  the 
estate  and  to  keep  its  funds  separate  from  her  own.^ 

Acceptance  of  Trust. 

Where  a  will  creates  a  trust  and  appoints  the  same  persons 
as  executors  and  trustees,  the  probate  of  the  will  is  conclusive 
evidence  of  the  acceptance  by  the  executors  of  the  trust.  It 
is  not  discretionary  with  them  whether  they  will  or  will  not 
act  as  trustees.  By  accepting  the  office  of  executor,  they  be- 
come ex-officio  trustees,  charged  with  all  the  duties  and  re- 
sponsibilities of  the  office.^ 

Right  of  Foreign  Corporations  to  Act. 

In  Sattcrthivaite's  Estate,'''  it  was  held  that  the  mere  fact 
that  the  trustee  appointed  by  the  testator  was  a  foreign  cor- 
poration did  not  disqualify  it  from  acting.  In  that  case  the  ex- 
ecutors had  completed  their  administration  of  the  estate,  and 
were  prepared  to  turn  over  the  balance  to  the  trustee,  a  cor- 
poration organized  under  the  laws  of  another  state  and  not 
qualified  to  act  as  such  in  this  state;  and  the  court  directed 
the  fund  to  be  paid  to  such  foreign  corporation,  upon  its  enter- 
ing into  bond  to  faithfully  perform  its  duty  as  such  trustee, 
with  a  surety  company,  authorized  to  transact  business  in  this 
state,  as  surety,  and  with  a  further  proviso  that  such  surety 
company  should  act  as  agent  of  the  trustee  to  receive  and  ac- 
cept service  of  all  notices  and  orders  in  respect  to  the  trust.  It 
will  be  observed  that  in  this  case  the  sole  duties  of  the  trustee 
were  to  receive  the  fund  and  pay  the  income  derived  therefrom  ; 
and  it  is  very  doubtful  whether  this  decision  is  an  authority 
for  permitting  a  foreign  corporation  named  in  a  testator's 
will  as  executor  to  qualify  as  such,  in  a  case  where  such  cor- 

"Hunt  V.   Smith,   58  N.  J.  Eq.,  sSchenck   v.   Schenck.    16  N.  J. 

^5-  Eq.,   174. 

„^^,_     «6o  N.  J.  Eq.,  347. 


Trustees.  295 

poration  has  not  qualified  itself  to  act  in  such  cases  pursuant 
to  the  statute  in  such  case  made  and  provided." 

Devolution  of  Office  in  Case  of  Death  of  Trustees. 

Upon  the  death  of  one  of  several  co-trustees,  the  office  of 
trustee  will  devolve,  with  the  estate,  upon  the  survivors,  and 
ultimately  upon  the  heir  or  personal  representatives -of  the  last 
survivor.  Trusts  of  real  estate,  upon  the  death  of  the  trustee, 
devolve  upon  his  heir  at  common  law,  his  eldest  son ;  trusts  of 
personalty  vest  in  his  executor  or  administrator.* 

Where  Administrator  c.  t.  a.  Is  Appointed. 

Where  the  trust  created  by  the  will  is  an  active  one,  to  in- 
vest the  residue  and  pay  over  the  interest  and  to  keep  the 
premises  devised  in  good  and  sufficient  repair,  it  does  not  de- 
volve upon  the  administrator  with  the  will  annexed.^  So  a 
trust  to  pay  over  the  interest  of  a  fund  to  certain  persons 
during  their  lives,  and  to  divide  the  principal  thereafter,  does 
not  devolve  upon  an  administrator  with  the  will  annexed.^" 
So  where  a  will  makes  a  provision  for  testator's .  widow  a 
charge  on  the  executors,  the  administrator  with  the  will  an- 
nexed is  not  charged  with  the  duty  of  making  such  provision. ^^ 
And  so  where  a  testator  devised  and  bequeathed  real  and  per- 
sonal estate  to  his  executors  in  trust  for  his  son  during  his 
life,  and  on  his  death  to  be  divided  among  his  daughters,  and 
the  will  was  probated,  but  no  letters  taken  out  by  the  executors, 
and  one  of  the  executors  died  and  the  other  being  out  of  the 
state,   letters   of   administration   with   the   will   annexed   were 

"See  also  Bell  v.  White,  76  N.  ''Stoutenburgh  v.  Moore.  ZT  N.  J. 

J.  Eq.,  49,  and  see  Orphans'  Court  Eq.,  63.     Affirmed,  38  N.  J.  Eq., 

Rules  41  to  44,  pages  303  et  seq.,  281.     In    re    Quimby's    Estate,   84 

infra.  N.  J.  Eq.,  i. 

^Schenck  v.   Schenck,    16   N.  J.  '°Lanning     v.     Sisters     of     St. 

Eq.,    174.     Zabriskie   v.    M.   &   E.  Francis,  35  N.  J.  Eq.,  392. 

R.  R.  Co.,  2>l  N.  J.  Eq.,  22.     Af-  ^'Lindsley  v.   Personette,  35  N. 

firmed,  34  N.  J.  Eq.,  282.     Brown  J.    Eq.,   355. 
V.  Pancoast,  34  N.  J.  Eq.,  321. 


^g6  Probate  Law  and  Practice. 

granted,  it  was  held  that  the  trust  did  not  vest  in  the  adminis- 
trator.^- 

APPOINTMENT  OF  NEW  TRUSTEES. 
In  Case  of  Death  of  Trustee  or  Refusal  to  Act. 

When  any  trustee,  heretofore  or  hereafter  appointed  by 
last  will,  shall  neglect  or  refuse  to  act,  or  shall  die  before  the 
execution  and  completion  of  the  trust  committed  to  him,  the 
orphans'  court  of  the  county  where  such  testator  resided  at  the 
time  of  his  death,  shall  have  power  to  appoint  some  suitable 
person  or  persons  to  execute  such  trust ;  and  the  said  court 
is  hereby  authorized  and  required  to  take  from  such  trustee 
or  trustees  a  bond,  with  one  or  more  sufficient  sureties  being 
freeholders,  conditioned  for  the  due  performance  of  the  said 
trust;  and  the  trustee  or  trustees  so  appointed  shall  have  all 
the  power  of  the  said  trustee  or  trustees  so  neglecting,  refus- 
ing or  dying;  provided,  ahvays,  that  nothing  in  this  section 
shall  be  construed  to  apply  to  the  office  of  executor.^" 

Construction  of  Act. 

The  words  "neglect,  or  refuse  to  act,"'  as  used  in  this  sec- 
tion, apply  only  to  the  case  of  a  neglect  or  refusal  to  assume 
in  any  way  the  duty  of  the  office,  and  not  to  the  neglect  or  re- 
fusal to  perform  by  one  who  has  assumed  the  administration  of 
the  estate  or  the  performance  of  his  trust,  and  then  is  guilty  of 
misconduct  in  the  neglect  of  some  plain  duty.  An  entire  fail- 
ure to  act,  without  any  refusal,  or  an  express  refusal  on  the 
part  of  the  executor  or  trustee  to  assume  the  office  cast  upon 
him  by  the  testator  and  a  vacancy  caused  by  a  death  after  the 
trust  has  been  assumed,  are  the  cases  intended  to  be  provided 
for  by  this  section.^* 

i^Brush  V.  Young,  28  N.  J.  L.,  ^^Orphans'  Court  Act,  sec.  135. 

237.    Terry  v.  Smith,  42  N.  J.  Eq.,  3  Comp.  Stat.,  3862. 

504.      Zabriskie    v.    Wetmore,    26  i*In  re  Chittendon,  24  N.  J.  L. 

N.  J.  Eq.,  18,  and  see  also  "Juris-  J.,  719. 
diction  of  Orphans'  Court,"  p.  297. 
infra. 


AprOIXTMEXT   OF   TRUSTEES. 


297 


Jurisdiction  of  Orphans'  Court. 

This  section  does  not  confer  upon  the  orphans*  court  all 
of  the  powers  of  the  Court  of  Chancery  over  the  appointment 
of  trustees,  but  only  those  enumerated  in  the  statute.  Where 
an  executor,  who  is  also  trustee,  dies,  and  an  administrator 
cum  testaniento  annexo  is  appointed,  if  the  trust  was  one 
reposing-  personal  confidence  and  discretion  in  the  trustee,  it 
will  not  devolve  upon  the  administrator,  and  the  orphans'  court 
may  appoint  a  new  trustee. ^^ 

The  true  criterion  of  the  jurisdiction  of  the  court  is  the 
nature  of  the  trust,  and  not  the  person  who  is  to  execute  it.  If 
the  duties  of  the  trustee  are  identical  with  or  inseparable  from 
the  duties  of  executor,  when  the  offices  are  united  in  the  same 
person,  it  is  clear  that  the  orphans'  court  can  have  no  jurisdic- 
tion to  appoint  a  new  trustee.  Thus,  where  the  whole  estate 
is  devised  to  the  executor  in  trust  for  the  payment  of  debts 
and  legacies,  the  duties  of  executor  and  trustee  are  identical 
and  inseparable,  and  the  orphans'  court  has  no  power  to  appoiiu 
a  new  trustee.  Where,  however,  the  office  of  trustee  under 
the  will  and  that  of  executor  are  distinct  and  separable,  the  sub- 
stitution of  a  new  trustee  in  nowise  affects  the  office  of  ex- 
ecutor. Thus,  where  a  testator  gives  his  estate  to  his  ex- 
ecutor in  trust  to  pay  the  income  thereof  to  his  son  for  life, 
with  remainder  over,  the  duties  of  the  nominee  as  trustee  are 
not  connected  with  the  settlement  of  the  estate,  but  are  distinct 
from  his  duties  as  executor,  and  a  new  trustee  may  be  sub- 
stituted by  the  orphans'  court. ^" 

The  statute  confers  upon  the  orphans'  court  power  to  ap- 
point trustees  in  certain  instances  therein  prescribed,  and  this 
power  is  limited  by  the  statutory  language  of  the  act  to  cases 
where  a  trustee  named  in  a  will  has  neglected  or  refused  to 

i^Brush  V.  Young,  28  N.  J.  L..  237.     For  illustrations  as  to  when 

22,7.      Zabriskie    v.    Wetmore,    26  a  trust  will  and  when  it  will  not 

N.  J.  Eq.,  18.     Lanning  v.  Sisters  devolve     upon     an     administrator 

of  St.  Francis,  35  N.  J.  Eq.,  392.  cum    testamento  annexo,   see   Re- 

Stoutenburgh  v.  Moore,  2)7  N.  J.  porter's  Note  to  Giberson  v.  Gib- 

Eq.,  63.     Affirmed,  38  N.  J.  Eq.,  erson,  43  N.  J.  Eq..   116-117,  and 

281.  see  also  "Where  .Administrator  c. 

i^Brush  V.  Young,  28  N.  J.  E.,  t.  a.  is  .\ppointed,"  p.  205.  supra. 


298  Proisatk  Law  and  Practice. 

act,  or  has  died  before  the  execution  or  completion  of  the  trust 
committed  to  him.  Where,  therefore,  a  testator  has  appointed 
a  non-resident  corporation  a  trustee  under  a  will,  the  or- 
phans' court  has  no  jurisdiction  to  inquire  whether  the  trus- 
tee is  incapable  of  acting  in  this  state,  or  whether  it  would  be 
permitted  to  execute  its  trust  outside  the  jurisdiction  of  the 
court  of  this  state,  but  only  to  inquire  whether  the  trustee  has 
refused  or  neglected  to  act  as  such.  It  is  upon  the  existence 
of  the  latter  condition,  as  a  condition  precedent,  that  it  is  em- 
powered to  appoint  a  new  trustee.^' 

In  Case  o£  Discharge  or  Removal  of  Trustee. 

The  act  provides  that  in  case  any  trustee  shall  be  removed 
or  discharged,  the  court  shall  appoint  some  suitable  or  proper 
person  or  persons  to  act  in  the  place  and  stead  of  such  trus- 
tee so  removed. ^^ 

Notice  of  Application  for  Appointment  of  Trustee. 

When  any  trustee,  heretofore  or  hereafter  appointed  by 
any  will  shall  neglect  or  refuse  to  act,  or  shall  die  before  the 
execution  and  completion  of  the  trust  committed  to  him,  and 
any  interested  person  shall  intend  to  apply  to  the  orphans'  court 
of  the  county  where  the  testator  resided  at  the  time  of  his 
death,  for  the  appointment  of  a  suitable  person  or  suitable 
persons  to  execute  such  trust,  the  person  intending  to  make 
such  application,  shall  give  to  all  persons  interested  in  the  ex- 
ecution of  such  trust,  or  to  such  of  them  as  the  court  shall  by 
its  order  direct,  when  they  reside  in  this  state,  at  least  five 
days'  notice  in  writing  of  such  intended  application ;  when 
any  of  said  parties  shall  reside  out  of  this  state,  the  notice 
shall  be  given  by  personal  service,  either  within  or  without  this 
state,  or  by  mailing  the  same  to  said  parties,  at  their  respective 
post-office  addresses,  at  least  thirty  days  before  the  day  desig- 
nated in  the  notice  for  making  such  application.  If  any 
cestui  que  trust  be  a  minor,  or  non  compos  mentis,  notice  shall 
be  given  to  his  or  her  guardian,  if  any,  and  if  none,  to  his  or 
her  nearest  of  kin,  to  any  person  standing  in  loco  parentis  to 

"Satterthwaite's  Case,  60  N.  J.         i^See  Orphans'  Court  Act,  sec. 
Eq.,    347-  T51.  p.  610.  infra. 


Appointment  of  Trustees.  299 

said  minor  or  non  compos,  and  also  to  the  persons  with  whom 
said  minor  or  non  compos  resides,  or  as  to  such  of  them  as  the 
court  shall  by  its  order  direct.^'' 

Power  of  Substituted  Trustees. 

Any  trustee  appointed  or  substituted  by  the  orphans'  court 
of  any  county  of  this  state,  or  by  the  court  of  chancery,  in  the 
place  of  any  trustee  appointed  by  a  will  or  other  instrument 
creating  or  continuing  a  trust,  shall  have  the  same  power  to 
sell  and  convey  lands  and  other  property  as  was  given  to  and 
vested  in  the  original  trustee  or  trustees  named  in  or  appointed 
by  such  will  or  instrument,  even  in  cases  where  such  power 
may  be  directed  to  be  exercised  at  the  discretion  of  such 
original  trustee  or  trustees,  unless  such  power  of  sale  shall 
by  such  will  or  instrument  be  expressly  prohibited  to  any  sub- 
stituted trustee.-** 

The  Orphans'  Court  Act,-^  provides  that  a  trustee  appointed 
by  that  court  shall  have  all  the  powers  of  the  trustee  for  whom 
he  is  substituted. 

The  appointment  of  a  trustee  by  the  orphans'  court  confers 
upon  such  trustee  the  power  of  sale  of  lands  vested  by  the 
will  in  the  original  trustee ;--  a  trustee  appointed  by  the  or- 
phans' court  may  maintain  an  action  for  money  had  and  re- 
ceived against  a  person  who  has  money  in  his  hands  which 
justly  belongs  to  the  trust  estate,  although  the  money  was  re- 
ceived before  the  appointment  of  the  trustee-''  but  when  the 
power  conferred  upon  the  trustee  appointed  by  the  will  is  a 
power  coupled  with  a  trust,  to  be  exercised  in  the  discretion 
and  upon  the  judgment  of  the  trustee,  the  trustee  appointed 
and  substituted  under  the  statute  does  not  acquire  the  right 
to  exercise  such  power  upon  his  own  discretion  or  judgment,-^ 

isQrphans'  Court  Rule  45.  23Budd  v.  Hiler.  27  N.  J.  L.,  43. 

-04  Comp.  Stat.,  p.  5668,  sec.  5.  -^Weiland   v.   Townsend,   33   N. 

->Orphans'  Court  Act,  sec.   135,  J.   Eq.,  393.     Pedrick  v.   Pedrick. 

p.  296,  supra.  48   N.   J.   Eq..   313-     Reversed,   50 

--Yard  v.  Larison,  39  N.  J.  Eq.,  N.     J.     Eq.,    479.     Dillingliatn     v. 

3^-  Martin,  61  N.  J.  Eq.,  276. 


300  Probate  Law  and  Practice. 

but  the  Court  of  Chancery  may  direct  such  trustee  to  execute 
the  trust  under  equitable  rules  prescribed  by  it.-^ 

REMOVAL  OF  TRUST  FUNDS  FROM  STATE. 

Jurisdiction  of  Court  to  Authorize. 

In  case  any  trustee  appointed  and  his  beneficiary  are  both 
residents  of  another  state,  and  such  beneficiary  is  entitled  to 
any  property  or  interest,  real  or  personal,  in  which  shall  be 
included  property,  or  money  or  interest  in  the  hands  of  any 
trustee,  resident  in  this  state,  any  legacy  or  distributive  share 
or  interest  in  the  hands  of  any  executor  or  administrator  in 
this  state,  moneys  in  the  hands  of  any  trustee,  executor  or  ad- 
ministrator, being  the  proceeds  of  the  sale  of  lands  under  any 
judicial  proceedings,  or  in  pursuance  of  the  provisions  of  any 
last  will  and  testament,  arising  from  the  sale  of  any  property 
under  any  judicial  proceedings,  or  in  pursuance  of  any  last 
will  and  testament  aforesaid,  it  shall  be  lawful  for  the  ordinary 
or  the  orphans'  court  of  the  proper  county  to  make  an  order 
that  the  trustee  so  appointed  in  another  state,  may  receive  the 
rents,  issues  and  profits  of  such  real  estate,  and  demand,  sue 
for,  collect  and  receive  such  legacy,  distributive  share,  moneys 
or  other  personal  property  or  interest  aforesaid,  and  remove 
the  same  to  the  place  of  residence  of  himself  and  beneficiary  ; 
and  the  delivery,  transfer  or  payment  of  such  property*  or 
money  or  interest,  to  such  trustee  so  appointed  in  another 
state,  after  the  making  of  such  order,  shall  be  a  legal  discharge 
and  acquittance  for  the  same.^^. 

Notice  of  Application. 

Twenty  days'  notice  of  an  application  for  the  removal  of 
property  under  the  provisions  of  this  act  shall  be  given  to  the 
resident  trustee,  or  the  executor  or  administrator  in  whose 
custody  such  property,  moneys  or  interest  shall  be,  and  the 
ordinary  or  orphans'  court  may  direct  notice  of  such  intended 

25Dillingham   v.    Martin,   6i    N.  or  removal  of  the  trustee,  see  Re- 

J.  Eq.,  276,  and  cases  above  cited.  porter's  Note  to  Weiland  v.  Town- 

For  illustrations  as  to  when  equity  send,  33  N.  J.  Eq.,  393. 

will  direct  the  performance  of  a  -*^4  Comp.  Stat.,  p.  5669.  sec.  7. 
discretionary  trust  after  the  death 


Removal  of  Trust  Funds  from  State.  301 

application  to  be  given  to  other  persons  interested ;  provided, 
that  the  ordinary  or  orphans'  court  may  reject  such  appHcations 
and  refuse  such  order  whenever  it  shall  appear  that  it  is  for 
the  interest  of  the  beneficiary  and  parties  in  interest  that  such 
removal  shall  not  take  place ;  and  no  order  shall  be  made  in  any 
case  where  such  removal  will  conflict  with  the  terms  or  limita- 
tions by  which  such  beneficiary  owns,  or  is  entitled  to  such 
property,  or  the  interest  of  any  citizen  of  this  state  in  such 
property  or  interest  may  be  prejudiced.-' 

Proof  of  Appointment  of  Foreign  Trustee;    Additional 
Security. 

Before  any  such  order  as  mentioned  in  the  last  section  (for 
the  removal  of  trust  property  from  the  state)  shall  be  made, 
proof  to  the  satisfaction  of  the  ordinary  or  orphans'  court 
shall  be  made  by  certificate  according  to  the  acts  of  congress, 
in  case  the  trustee  or  beneficiary  reside  in  another  state,  or 
by  attestation  under  the  seal  of  the  court  wherein,  or  officer 
before  whom,  the  proceedings  were  had,  of  the  appointment 
of  such  trustee,  and  that  he  has  given  adequate  security  as 
such  trustee  in  double  the  amount  in  value  of  such  property 
or  interest  at  the  place  where  such  trustee  and  beneficiary 
reside;  and  in  case  the  ordinary  or  orphans'  court  shall  not 
be  satisfied  with  the  sufficiency  of  such  security,  additional 
security  to  be  given  in  this  state  may  be  required,  in  such  form 
as  the  ordinary  or  orphans'  court  shall  direct.-^ 

APPOINTMENT  OF  TRUSTEE  FOR  ESTATE  OF  ABSENT 

PERSON. 

Jurisdiction. 

Whenever  it  shall  be  made  known  to  the  Court  of  Chancery 
or  to  the  Orphans'  Court  of  the  proper  county,  by  a  petition 
verified  by  the  affidavit  of  the  husband,  wife,  next  of  kin  or 
other  person  interested,  of  any  person  who  has  been  a  resi- 
dent of  this  state,  or  of  any  other  state,  territory  or  foreign 
country,  and  who  has  property  situate  within  this  state,  and 
who  has  absented  himself  or  herself  from  his  or  her  usual  place 

2^4  Comp.  Stat.,  p.  5670,  sec.  9.        -^4  Comp.  Stat.,  p.  5670,  sec.  8. 


302  Probate  Law  and  Practice. 

of  abode,  for  the  space  of  one  year,  and  whose  whereabouts  is- 
not  and  has  not  been  known  for  a  period  of  one  year,  it  shall 
be  lawful  for  the  Chancellor  or  said  Orphans'  Court  to  appoint 
one  or  more  trustees,  who  shall  take  charge  of  and  manage  the 
estate  of  such  person  so  being  absent,  and  who  shall  have  full 
power  over  said  estate,  with  the  privilege  of  applying  to  said 
court  to  commence  such  proceedings  for  the  conservation,  pro- 
tection or  disposal  of  said  estate  or  any  part  thereof,  as  in 
the  judgment  of  the  said  court  shall  be  proper,  and  who  shall 
be  under  the  control  and  direction  of  said  court.-" 

Bond  and  Inventory  of  Trustee. 

Said  trustee,  before  taking  charge  of  said  estate,  shall  give 
bond  in  twice  the  amount  of  the  personal  property  of  said 
estate,  and  if  the  same  shall  be  ordered  to  be  sold  in  twice  the 
value  thereof,  with  sureties  to  be  approved  by  said  court  for 
the  faithful  discharge  of  his  or  her  duties,  and  shall  within 
thirty  days  after  his  or  her  appointment,  file  an  inventory  with 
said  court  of  said  estate,  and  render  an  account  at  least  once 
in  two  years,  or  oftener  if  required  by  said  court. ^^ 

Distribution  of  Estate. 

Distribution  of  said  estate  may  be  made  under  the  direction 
of  said  court  after  seven  years  from  the  appointment  of  said 
trustee  or  trustees,  or  sooner  if  the  death  of  such  absent 
person  shall  be  established  by  evidence  satisfactory  to  said 
court ;  provided,  that  upon  the  return  of  such  person  so  being 
absent  before  the  distribution  as  aforesaid,  such  trustee  or 
trustees  shall  render  an  account  and  restore  to  him  or  her 
said  estate  after  deducting  reasonable  expenses  of  said  trust 
and  compensation  of  said  trustees.'^ 

Conveyances  by  Trustees  Where  Consent  of  Cestuis  Re- 
quired. 

Where  any  person  has  died  or  shall  die  leaving  a  last 
will  and  testament,  devising  lands  situate,  lying  and  being  in 
the  state  of  New  Jersey  to  a  trustee  or  trustees  for  any  pur- 

29P.  L.  1912.  p.  565.  sec.  I.  sip    i^    ic)i2.  p.  565.   sec.  3. 

3op.  L.  1912,  p.  565,  sec.  2. 


Corporations  as  Trustees.  303 

pose  or  purposes,  and  giving  to  such  trustee  or  trustees  full 
power  to  convey  any  and  all  of  such  real  estate  upon  the 
unanimous  consent  of  all  of  the  children  of  such  testator,  and 
such  will  has  been  or  shall  be  duly  admitted  to  probate,  and 
where,  after  the  probate  of  such  will,  some  of  the  children  of 
such  testator,  living  at  the  time  of  the  death  of  such  testator, 
have  died  or  shall  die,  and  where,  at  the  time  of  the  exercise 
of  such  power  of  sale  by  such  trustee  or  trustees  or  any  per- 
son or  persons  lawfully  substituted  as  such  trustee  or  trus- 
tees, some  of  the  children  of  such  testator  shall  be  alive,  such 
trustee  or  trustees,  or  any  person  or  persons  lawfully  sub- 
stituted as  such  trustee  or  trustees,  shall  have  full  power  to 
convey  any  and  all  of  such  real  estate  so  devised  by  any  tes- 
tator, and  to  give  good  and  valid  deeds  of  coivveyance  for  the 
same,  upon  the  unanimous  consent  of  all  of  the  children  of  such 
testator  living  at  the  time  of  the  exercise  of  such  power  of 
sale  by  such  trustee  or  trustees  or  any  person  or  persons  law- 
fully substituted  as  such  trustee  or  trustees. ^^ 

CORPORATIONS   AS   TRUSTEES,    &C. 

Corporations  to  Deposit  Securities  before  Appointment. 

No  corporation  entitled  by  law  to  execute  trusts  or  to  act 
as  assignee,  administrator,  guardian,  receiver  or  trustee  shall 
be  appointed  to  such  office  until  it  shall  have  created  a  fund 
to  be  specifically  set  apart  for  and  devoted  to  specially  se- 
curing its  liability  in  such  capacities  of  trust  and  confidence, 
in  accordance  with  the  provisions  of  the  act  entitled,  "An  act 
concerning  trust  companies  (Revision  of  1899)",  approved 
March  twenty-fourth,  one  thousand  eight  hundred  and  ninety- 
nine  (Laws  of  1899,  p.  450.  4  Comp.  Stat.,  p.  5658,  sec.  9), 
and  shall  have  deposited  with  the  register  of  this  (prerogative) 
court  securities  which  shall  represent  the   fund.-''* 

No  Deposit  Required  if  Trust  Company  Gives  Security 
in  Same  Manner  as  Natural  Person. 

Nothing  in  these  rules  contained  shall  require  the  deposit 
of  any  such  fund  when  the  trust  company  appointed  gives  se- 

"P.    L.    1913,   p.   227.  ^^Prerogative    Court    Rule    39. 

Orphans'  Court  Rule  41. 
21 


304  Probate  Law  and  Practice. 

curity  in  the  manner  prescribed  by  law  in  such  behalf  foi 
natural  persons,  or  in  cases  where  the  trust  company  shall 
have  been  appointed  as  executor  or  trustee,  by  any  will  or 
deed.^' 

Affidavit,   Statement  and   Certificate   to  Accompany   Ap- 
plication for  Appointment. 

Every  application  for  the  appointment  of  such  corporation 
to  act  as  such  assignee,  administrator,  guardian,  receiver  or 
trustee  shall  be  accompanied  by  an  affidavit  of  the  president, 
secretary  or  trust  officer  of  said  corporation  setting  forth 
the  matters  specified  in  section  nine  of  the  act  referred  to  in 
Rule  thirty-nine,^'^  and  a  copy  of  the  latest  published  gen- 
eral statement  of  the  resources  and  liabilities  of  the  cor- 
poration, such  statement  to  be  in  no  case  of  a  date  more  than 
six  months  previous  to  the  application ;  there  shall  also  be  ap- 
pended to  the  application  a  certificate  signed  by  the  register  of 
the  prerogative  court,  showing  that  the  special  fund  required  by 
said  section  nine  of  the  above  mentioned  act  remains  on  deposit 
with  him,  in  approved  securities,  stating  the  amount  thereof. 
Such  corporation  shall  present  to  the  ordinary  on  such  applica- 
tion (but  need  not  file)  the  certificate  of  the  commissioner  of 
banking  and  insurance  issued  under  the  provisions  of  section 
five  of  the  above  mentioned  act.^*^ 

Character  of  Securities  to  be  Deposited. 

The  said  securities  shall  be  of  the  character  of  securities  in 
which  trust  funds  may,  by  law^,  be  invested,  and  at  the  time 
of  the  deposit  thereof,  the  president  or  cashier  of  the  com- 
pany making  such  deposit  shall  make  oath  in  writing,  which 
shall  be  filed  with  the  register  of  this  (prerogative)  court,  as 
to  the  intrinsic  value  of  any  property  upon  which  such  se- 
curities shall  then  be  a  lien.^^ 

Mortgages  Deposited  to  be  Assigned  to  Register. 

In  case  any  securities  deposited  as  aforesaid  are  bonds  se- 
cured by  mortgages  upon  real  estate,  of  the  character  in  which 

^^Prerogative     Court    Rule    40.        ^^Prerogative     Court    Rule    41. 
Orphans'  Court  Rule  42.  Orphans'    Court   Rule   43. 

3=aSee  p.  303,  supra.  ^yprerogative  Court  Rule  42. 


Corporations  as  Truste;es.  305 

trust  funds  may  by  law  be  invested,  said  mortgages  together 
with  the  said  bonds,  shall  be  assigned  to  the  register  in  a  man- 
ner to  be  approved  by  the  ordinary,  but  until  default  by  the 
trust  company  depositing  the  same  occurs,  by  reason  of 
which  recourse  may  be  had  to  said  fund,  said  company  shall 
be  entitled  to  the  beneficial  interest  in  and  income  from  said 
bonds  and  mortgages  so  assigned,  and  the  register  of  this  (pre- 
rogative) court  may  execute  a  power  of  attorney  in  favor  of 
said  trust  company,  in  a  form  to  be  approved  by  the  ordinarv. 
authorizing  said  company  to  receive  and  retain  for  its  own 
use  the  interest  or  income  arising  from  said  bonds  or  the 
mortgages  securing  the  same."^ 

Register  to  Receive  Deposit  of  Securities. 

The  register  of  the  (prerogative)  court  shall  receive  the 
deposits  of  securities  made  under  the  requirements  of  the  pre- 
ceding rules,  and  shall  keep  the  same  in  such  manner  as  the 
ordinary  may,  from  time  to  time,  by  order  direct.^'' 

Register  to  File  Affidavits. 

The  register  shall  file  together  all  affidavits  contemplated 
by  rule  forty-one  of  the  (prerogative)  court,  rule  forty-three  of 
the  orphans'  court  and  rule  two  hundred  and  fourteen  of  the 
Court  of  Chancery.^" 

Bond  Required  from  Corporation. 

Upon  being  appointed  to  any  such  office  as  is  mentioned 
in  rule  thirty-nine,  the  corporation  shall  give  bond,  but  with- 
out surety,  similar  to  the  bond  that  a  natural  person  would 
be  obliged  to  give  if  he  or  she  were  appointed  to  such  office.'*^ 

^^Prerogative  Court  Rule  43.  *i  Prerogative    Court    Rule    46. 

^^Prerogative  Court  Rule  44.  Orphans'  Court  Rule  44. 

■•oPrerogative  Court  Rule  45. 


CHAPTER  XVIII. 

BONDS  OF  EXECUTORS,  ADMINISTRATORS, 
GUARDIANS  AND  TRUSTEES. 

Historical. 

In  early  times,  administration  of  the  estates  of  decedents 
was  granted  to  the  ordinary,  who  was  not  required  to  give 
bond:  but  this  right  was  taken  from  him  by  the  Statute  of  ^7 
Ed.  Ill,  which  required  the  ordinary  to  grant  administration 
to  the  next  of  kin  of  the  intestate,  but  made  no  provision  for 
security  from  such  administrator.  The  first  enactment  re- 
quiring the  administrator  to  give  security  was  the  Statute  of  21 
Hen.  VIII,  which  provided  that  the  administrator  should  give 
bond  to  the  ordinary  that  he  would  exhibit  an  inventory  and 
pay  the  debts,  or,  as  it  was  termed,  administer  the  estate  of  the 
intestate.  This  condition  of  affairs  continued  until  the  enact- 
ment of  the  Statute  of  22  Car.  II,  which  required  the  adminis- 
trator to  give  bond  to  the  ordinary:  i.  To  file  an  inventory: 
2.  To  well  and  truly  administer ;  3.  To  account ;  4.  To  dis- 
tribute the  surplus  estate  among  the  next  of  kin. 

The  first  statute  in  New  Jersey  on  this  subject  was  passed 
in  1795,^  and  was  substantially  a  re-enactment  of  the  Statute 
of  22  Car.  II.  This  act  has  remained  practically  unchanged 
through  successive  re-enactments,  so  that  section  46  of  the 
Orphans'  Court  Act^^  is  to  all  intents  and  purposes  a  re-enact- 
ment of  the  Statute  of  22  Car.  II. 

Bond  Required  from  Surety  Company, 

Where  a  surety  company  which  has  duly  qualified  to  act 
is  appointed  as  executor,  administrator,  guardian,  trustee  or 
assignee,  the  corporation  shall  give  bond,  but  without  surety, 
similar  to  the  bond  that  a  natural  person  would  be  obliged  to 
give  if  he  or  she  were  appointed  to  such  office.^'' 

^Elmer's  Digest,  p.  166,  sec.  14.    3  Comp.  St-it..  3828,  p.  307.  infra 
^"Orphans'   Court    Act.    sec.   46.         ibOrphans'  Court  Rule  44. 

^06 


Bunds  of  Admix istkatoks.  Etc.  307 

ADMINISTRATION    BONDS. 

Security  Required  from  Administrator. 

Upon  granting  administration  of  the  goods  and  elYects  of 
any  person  dying  intestate,  the  ordinary,  court  or  surrogate 
by  whom  the  same  shall  be  granted,  shall  take  of  the  person 
to  whom  such  administration  shall  be  committed  a  sufficient 
bond,  with  two  or  more  able  sureties  to  the  ordinary  of  the 
state,  in  such  penalty  as  may  be  reasonable,  regard  being  had  to 
the  value  of  the  estate. - 

Condition  of  Bond. 

The  statute  prescribes  that  the  bond  shall  be  with  condi- 
tion following:  The  condition  of  this  obligation  is  such  that 
if  the  above-bounden  A.  B.,  administrator  of  all  and  singular 
the  goods,  chattels  and  credits  of  C.  D.,  deceased,  do  make, 
or  cause  to  be  made,  a  true  and  perfect  inventory  of  all  and 
singular  the  goods,  chattels  and  credits  of  the  said  deceased, 
which  have  or  shall  come  to  the  hands,  possession  or  knowd- 
edge  of  the  said  A.  B.,  or  into  the  hands  or  possession  of  any 
other  person  or  persons  for  the  said  A.  B.,  and  the  same  so 
made  do  exhibit  or  cause  to  be  exhibited  into  the  registry  of 
the  prerogative  court,  in  the  secretary's  office  of   this  state, 

or  into  the  surrogate's  office  of  the  county  of  ,  at  or 

before  the  expiration  of  three  calendar  months  from  the  date 
of  the  above-written  obligation,  and  the  same  goods,  chattels 
and  credits,  and  all  other  goods,  chattels  and  credits  of  the  said 

deceased  at  the  time  of death,  which  at  any  time  after 

shall  come  into  the  hands  or  possession  of  said  A.  B.,  or  into 
the  hands  or  possession  of  any  other  person  or  persons  for 
the  said  A.  B.,  do  well  and  truly  administer  according  to  law ; 
and  further  do  make,  or  cause  to  be  made,  a  just  and  true  ac- 
count of administration  within  twelve  calendar  months 

from  the  date  of  the  above-written  obligation;  and  all  the  rest 
and  residue  of  the  said  goods,  chattels  and  credits  which  shall 
be  found  remaining  upon  the  account  of  the  said  administration, 
the  same  being  first  examined  and  allowed  by  the  judges  of  the 

^Orphans'  Court  Act,  sec.  46.    3 
Comp.  Stat.,  3828. 


3o8  Probate  Law  and  Practice. 

orphans'  court  of  the  county  or  other  competent  authority,  shall 
deliver  and  pay  unto  such  person  or  persons,  respectively,  as  is, 
are  or  shall,  by  law,  be  entitled  to  receive  the  same;  and  if  it 
shall  hereafter  appear  that  any  last  will  and  testament  was 
made  by  the  said  deceased,  and  the  executor  or  executors  there- 
in named,  or  any  other  person  or  persons  do  exhibit  the  same 
into  the  said  prerogative  court  or  the  surrogate's  office  of 
the  county  of ,  making  request  to  have  it  allowed  and  ap- 
proved ;  if  the  said  A.  B.  being  thereunto  required,  do  render 
and  deliver  the  said  letters  of  administration  (approbation 
of  such  testament  being  first  had  and  made)  to  the  said  court, 
then  the  above  obligation  to  be  void  and  of  none  effect,  or  else 
to  remain  in  full  force  and  virtue.^ 

Security  Required  from  Husband  on  Grant  of  Adminis- 
tration on  Wife's  Estate. 

Sufficient  bonds,  with  two  or  more  able  sureties  to  the 
ordinary  of  this  state,  with  like  penalty  and  condition  as  in 
other  cases  of  administration,  shall  be  required  of  all  husbands 
to  whom  administration  shall  be  granted  of  the  goods,  chat- 
tels and  credits  of  their  deceased  wives.* 

Form  of  Bond. 

The  bond  need  not  conform  strictly  to  the  form  prescribed 
by  the  statute ;  a  substantial  compliance  therewith  is  suf- 
ficient.^ While  the  bond  should  be  to  the  "ordinary,"  with- 
out giving  his  individual  name,  still  if  a  bond  be  taken  in  the  in- 
dividual name  of  the  ordinary  of  the  state,  his  successors  and 
assigns,  those  parts  of  the  bond  which  make  it  a  bond  to  the 
ordinary  will  be  held  valid,  and  the  individual  name  and  the 
words  successors  and  assigns  will  be  treated  as  surplusage.® 

Amount  of  Bond. 

The  statute  provides  that  upon  the  grant  of  letters  of  admin- 
istration a  "sufficient  bond  in  such  penalty  as  may  be  reason- 

^Orphans'  Court  Act,  sec.  46.   3  479.    Ordinary  v.  Cooley,  30  N.  J. 

Comp.  Stat.,  3828.  L.,  179.     Ordinary  v.  Heishon,  42 

*Orphans'  Court  Act,  sec.  48.    3  N.  J.  L.,  15. 

Comp.  Stat.,  3829.  ^Williamson  v.  Updike,  14  N.  J. 

'Ordinary  v.  Smith,  14  N.  J.  L.,  L.,  270. 


Bonds  of  Administrators,  Etc.  309 

able,  regard  being  had  to  the  value  of  the  estate,"  shall  be  given 
by  the  person  appointed."  As  a  general  rule,  a  bond  in  double 
the  amount  of  the  value  of  the  personal  estate  is  required.^ 
This  rule  is,  however,  not  inflexible.  The  object  of  an  admin- 
istration bond  is  twofold;  on  the  one  hand,  to  protect  the  next 
of  kin,  and  on  the  other  to  secure  to  creditors  the  payment  of 
their  claims.^  A  bond  in  an  amount  sufficient  to  accomplish 
these  objects  will  therefore  be  sufficient.  Thus,  where  the 
value  of  the  personal  estate  is  very  large,  a  bond  in  double  the 
amount  is  unnecessary ;  for  example,  where  the  personal  estate 
amounts  to  $50,000,  a  bond  for  $75,000  will  be  sufficient  for 
all  purposes. 

It  has  already  been  seen  that  the  bond  is  taken  to  secure 
the  next  of  kin  on  the  one  hand,  and  creditors  on  the  other.  If, 
therefore,  all  of  the  next  of  kin  are  siii  juris,  and  waive  the 
requirement  of  bonds  and  unite  in  requesting  the  surrogate  or 
court  to  grant  letters  without  requiring  any  bond,  the  surro- 
gate or  court,  on  being  satisfied  by  affidavits  or  otherwise  as 
to  the  amount  of  the  debts  owing  by  decedent,  will  be  justified 
in  requiring  a  bond  sufficient  to  secure  the  payment  of  the 
debts,  always  making  allowance  for  the  possibility  of  the  exist- 
ence of  debts  with  which  the  family  of  intestate  are  not 
familiar.  The  question  as  to  whether  decedent  at  the  time  of 
his  death  was  actively  engaged  in  business  is  important  in 
cases  of  this  character,  as  under  these  circumstances,  a  reduc- 
tion of  the  bond  would  be  unwise.  In  a  recent  case,  in  the 
Essex  County  Surrogate's  Office,  the  personal  estate  of  dece- 
dent, who  was  a  retired  business  man,  amounted  to  $40,000. 
He  had  not  been  engaged  in  any  business  for  many  years,  and  it 
was  shown  by  affidavits  that  his  debts  would  not  exceed  $500 
in  amount.  The  next  of  kin  were  all  sui  juris  and  all  waived 
bond  and  requested  the  appointment  of  one  of  their  number 
without  bonds;  and  a  bond  for  $10,000  was  considered  suf- 
ficient. 

"Orphans'  Court  Act,  sec.  46,  p.  ^Ordinary  v.  Cooley,  30  N.  J.  L.. 

307,  supra.  271-275.    Ordinary  v.  Connolly,  75 

^In  re  Rogers,  24  N.  J.  L.  J.,      N.  J.  Eq.,  521. 
617.     I    Wocrner  on   Administra- 
tion, 555. 


310  Probate  Law  and  Pragticb^. 

The  statute  })rovides  another  method  of  redueing  the  amount 
of  an  administrator's  bond,  in  a  case  where  the  estate  is  very 
large,  by  impounding  all,  or  a  portion,  of  the  securities  of  the 
estate,  and  giving  bond  as  to  the  residue  not  impounded.'*^ 

Where  There  are  Assets  in  Another  State. 

An  administrator,  by  virtue  of  a  grant  of  administration 
in  this  state,  the  place  of  the  testator's  domicile,  who  has  also 
sued  out  letters  of  administration  upon  the  intestate's  prop- 
erty lying  in  a  foreign  state  is  required  to  file  here  an  in- 
ventory of  such  property  only  as  he  is  authorized  to  administer 
here,  and  to  that  extent  only  will  he  be  required  to  give  se- 
curity.'' 

SECURITY  REQUIRED  FROM  ADMINISTRATORS  C.  T.  A., 
PENDENTE  LITE,  &c. 

Statutory   Requirements. 

The  statute  provides  that  in  case  of  the  grant  of  letters  of 
administration  durante  minore  crtate,  durante  absentia,  pen- 
dente lite,  cum  testamento  annexo,  and  in  all  other  cases  of 
grant  of  administration,  security  shall  be  required  as  afore- 
said, by  bond  to  the  ordinary,  in  penalty  as  aforesaid,  with 
the  same  condition  as  is  prescribed  by  the  statute  in  the  case 
of  ordinary  administration,  but  adapted  to  the  nature  of  the 
respective  grants  of  administration. ^- 

Amount  of  Bond  of  Administrator  c.  t.  a. 

The  same  considerations  obtain  in  fixing  the  amount  of  the 
bond  of  an  administrator  c.  t.  a.,  as  in  the  case  of  an  ordinary 
administrator.^^  The  amount  of  the  personal  property  only  is 
considered,  even  though  the  will  contains  a  power  of  sale,  as 
any  sale  made  by  the  administrator  with  the  will  annexed 
must  be  reported  to  and  confirmed  by  the  orphans'  court  before 
it  is  valid,  at  which  time  the  court  will  make  such  order  touch- 
ing the  bond  of  the  administrator  c.  t.  a.,  as  the  circumstances 
of  the  case  require.^* 

^°See  p.  319.  infra.  isOrphans'   Court   Act,   sec.   47. 

iiNormand  v.  Grognard,   17  N.      3  Comp.  Stat.,  3829. 
J.  Eq.,  .425.  ^■'*See  p.  308,  supra. 

'"•See  p.  502,  infra. 


Executors'  Bonds.  311 

EXECUTORS'    BONDS. 
In  General. 

Neither  by  the  common  nor  by  the  ecclesiastical  law  is  an 
executor  required  to  give  security  for  the  performance  of  his 
duty.  He  is  the  creature  and  representative  of  the  testator, 
and  not,  like  an  administrator,  the  creature  of  the  law.^''  In 
New  Jersey  the  statute  provides  that  in  all  cases  where  any 
person  or  persons  applying  for  the  probate  of  any  will  shall 
reside  out  of  the  state  of  New  Jersey,  it  shall  be  the  duty 
of  the  orphans'  court  or  surrogate  to  whom  such  application 
shall  be  made,  before  granting  letters  testamentary  thereon,  to 
take  from  such  person  or  persons  a  bond  with  security  for  the 
faithful  administration  of  the  estate  of  the  testator,  in  the 
same  manner  as  is  now  required  by  law  in  the  case  of  adminis- 
trations with  the  will  annexed ;  and  in  case  any  bond  given 
under  this  act  shall  become  forfeited,  it  may  be  prosecuted  in 
the  same  manner  that  bonds  given  by  administrators  may 
be  prosecuted ;  provided,  that  nothing  in  this  act  contained 
shall  prevent  the  granting  of  letters  testamentary  on  the 
estate  of  any  deceased  person  to  a  non-resident  executor  or 
executors,  without  security,  in  cases  where  the  will  provides 
that  no  security  shall  be  required  of  the  person  or  persons 
named  as  the  executor  or  executors  therein. ^"^ 

Amount  of  Bond. 

In  fixing  the  amount  in  which  a  non-resident  executor  should 
give  bond,  the  same  rules  obtain  as  in  the  case  of  an  adminis- 
trator, except  that  if  the  will  confers  upon  the  executor  the 
power  to  sell  testator's  lands,  the  value  of  the  lands  as  well  as 
of  the  personal  property  should  be  taken  into  consideration. 
As  the  executor  can  convert  the  lands  into  personalty  at  his 
pleasure,  and  without  notice,  they  should  be  regarded  as  per- 
sonalty for  the  purpose  of  fixing  the  amount  of  his  bond. 

i^Holcomb  V.  Coryell,   12  N.  J.  leOrphans'  Court  Act,  sec.  51.  3 

Eq.,  289.     Pfefferle  v.  Herr,  75  N.       Comp.  Stat.,  3829. 
J.   Eq.,   219.     Affirmed,   77   N.   J. 
Eq.,  271. 


312  Probate  Law  and  Practice. 

Power  of  Court  to  Require  Bond. 

The  statute  provides  that  whenever  proof  shall  be  made,  to 
the  satisfaction  of  the  orphans'  court,  that  the  property  in  the 
hands  of  any  executor  or  trustee  under  a  will  is  unsafe,  inse- 
cure, or  in  danger  of  being  wasted,  the  court,  at  the  instance  of 
any  person  interested  in  the  estate  of  the  testator,  or  in  such 
trust  estate,  may  require  such  executor  or  trustee  to  give  se- 
curity to  the  ordinary  of  this  state  by  bond  with  sureties,  in 
such  amount  as  said  court  may  deem  proper,  conditioned  for 
the  faithful  performance  by  such  executor  or  trustee,  of  his 
duty  under  the  will  of  the  testator.^' 

The  design  of  this  statute  is  to  protect  estates  in  the  hands 
of  executors  or  trustees  under  wills  against  the  danger  of 
waste  or  loss  by  reason  of  their  misconduct  in  embezzling, 
wasting,  or  misapplying  the  estate  committed  to  their  charge. 
The  statute  is  remedial,  and  should  be  liberally  construed. ^^ 

Practice. 

The  better  practice,  upon  an  application  to  the  court  to  re- 
quire an  executor  or  trustee  to  give  a  bond,  is  to  present  the 
matter  to  the  court  by  petition,  duly  verified,  setting  up  all  of 
the  facts  upon  which  petitioner  relies  in  support  of  his  applica- 
tion.^^ Such  facts  so  set  up  must,  of  course,  include  all  of 
those  mentioned  in  the  act  as  grounds  for  such  an  applica- 
tion.2» 

Upon  the  presentation  of  a  petition  setting  up  a  prima  facie 
showing  that,  in  the  language  of  the  act,  the  property  in  the 
hands  of  the  executor  or  trustee  is  "unsafe,  insecure  or  in 
danger  of  being  wasted,"  the  court  will  allow  a  rule  requiring 
such  executor  or  trustee  to  show  cause  why  he  should  not  be 
required  to  give  security,  which  rule  is  served  in  such  manner 
as  the  court  shall  by  a  provision  therein  contained  direct.^^ 

^''Orphans'  Court  Act,  sec.  140.  ^oOrphans'  Court  Act,  sec.  140, 

3   Comp.    Stat.,   3866.  this  page,  supra. 

isPerrine  v.  Petty,  34  N.  J.  Eq.,  ^iQrphans'  Court  Act,  sec.  179. 

193.  p.  39.  supra. 

i^But  see  Bird  v.  Wiggins,  35  N. 
J.  Eq.,  III. 


Executors'  Bonds.  313 

Upon  the  return  of  the  rule  to  show  cause,  the  petitioner 
proceeds  to  call  witnesses  in  support  of  the  allegations  of  his 
petition;  and  after  he  has  closed  his  case,  the  executor  or 
trustee  presents  whatever  evidence  he  may  have  in  rebuttal  to 
the  case  established  by  the  petitioner. 

Circumstances  under  which  Court  Will  Order  Bond. 

It  has  already  been  seen  that  neither  by  the  common  nor  by 
the  ecclesiastical  law  is  an  executor  required  to  give  security 
for  the  performance  of  his  duty,  he  being  the  creature  and  rep- 
resentative of  the  testator,  and  not,  like  an  administrator,  the 
creature  of  the  law.  A  testator  has  a  right  to  repose  con- 
fidence in  whom  he  will,  and  if  he  selects  as  his  representative 
an  irresponsible,  insolvent  person,  to  require  such  executor,  in 
the  absence  of  fraud,  or  misconduct  or  breach  of  trust,  to  give 
security,  and  thereby  to  remove  him  from  office  and  defeat  the 
will  of  the  testator,  is  an  exercise  of  power  not  vested  in  the 
court,  and  a  violation  of  the  rights  of  the  executor.  There 
must  be  some  act  or  circumstance,  other  than  and  distinct  from 
the  condition  and  circumstances  of  the  estate,  or  of  the  ex- 
ecutor at  the  time  of  the  appointment,  which  will  warrant  such 
interference.^" 

As  has  been  seen,  the  orphans'  court  will  not,  as  a  general 
rule,  require  an  executor  to  give  security,  unless  it  appears 
that  the  estate  in  his  hands  is  insecure,  or  in  danger  of  being 
wasted. ^^  But  where  an  executor  neglects  to  record  a  mort- 
gage given  by  himself  to  his  testator,  but  never  recorded  by 
his  testator,  he  will  be  required  to  give  security;-*  and  so 
where  an  executor  or  administrator  loans  money  of  the  estate 
upon  improper  or  insufiicient  security.-^  So  where  an  executor 
or  trustee  has  neglected  to  account  in  the  proper  court  as  re- 
quired by  the  statute,  and,  when  called  on  to  account,  re- 
fuses and  avoids  doing  so  until  by  the  authority  of  the  court 

22Holcomb  V.  Coryell,  12  N.  J.  Eq.,  692.  Affirmed,  34  N.  J.  Eq.. 
Eq.,   289.      Pfefferle    v.    Herr,    75      282. 

N.  J.   Eq.,  219.     Affirmed,   "j-j   N.  -*Bird  v.  Wiggins,  35  N.  J.  Eq.. 

r.  Eq.,  271.  III. 

'•Carpenter   v.    Gray,   32    N.   J.  ^spgrrine  v.  Petty,  34  N.  J.  Eq., 

193. 


314  Probata  Law  and  Practice. 

he  is  compelled  so  to  do,  and,  when  the  account  is  furnished, 
not  voluntarily,  but  by  force  of  law,  it  appears  that  the  executor 
or  trustee  is  himself  the  principal  debtor  of  the  estate,  and  that 
the  estate  has  little  or  no  security  for  such  indebtedness,  the 
conduct  of  the  executor  or  trustee  is  sufficient  of  itself  to 
justify  the  court  in  requiring  him  to  give  security.'-'^  So 
where  an  executor  and  trustee  had  made  excessive  payments  to 
testator's  widow  on  account  of  her  dower,  and  had  thereby 
made  the  estate  insecure,  it  was  held  that  he  was  properly  re- 
quired to  give  a  bond  for  the  faithful  performance  of  his  duty 
under  the  will.''  But  it  is  no  ground  for  requiring  an  ex- 
ecutor to  give  security  for  assets  in  his  hands  that  he  paid  a 
premium  in  investing  certain  funds  in  government  bonds, 
all  the  interest  collected  having  been  paid  over  to  the  legatee ; 
nor  that  a  mortgage  belonging  to  the  estate  had  been  assigned 
by  him  to  a  third  person  in  order  to  facilitate  its  collection,  no 
bad  faith  appearing;  nor  that  he  sold  his  farm  and  the  per- 
sonal property  thereon,  there  being  no  proof  that  the  assets  are 
insecure  in  his  hands,  or  in  danger  of  being  wasted.-^ 

Rule  in  Chancery. 

As  a  general  rule,  security  will  be  required  by  the  Court  of 
Chancery  of  trustees  to  whom  no  moral  turpitude  is  imputable, 
if  they  have  made  a  palpable  mistake  as  to  their  obligations, 
and  have  displayed  ignorance  and  negligence  or  bad  faith  in  the 
management  of  the  trust  fund.-^  So  where  it  appears  that 
there  is  danger  that  the  principal  of  a  legacy  will  be  wasted 
or  lost,  the  Court  of  Chancery  will  require  an  executor  to  give 
security,''*'  or  will  appoint  a  receiver,^^  but  security  cannot  be 
required  from  an  executor,  in  the  absence  of  fraud,  miscon- 

26Holcomb  V.  Coryell,   12  N.  J.  ^oHolcomb  v.  Coryell,  12  N.  J. 

Eq.,  289-296.  Eq.,  289. 

2-pfefferle  v.  Herr,  75  N.  J.  Eq.,  aoHoward  v.  Howard,   16  N.  J. 

219.       Affirmed     ^^     N.     J.     Eq.,  Eq.,  486. 

271.  31  Price  V.   Price,  23   N.  J.  Eq.. 

28Carpenter   v.   Gray,   32   N.   J.  428.     Bolles    v.    BoUes.   44    N.    J. 

Eq..  692.     Affirmed,  34  N.  J.  Eq..  Eq.,  385. 
282. 


Guardians'  Bonds.  315 

duct,  or  breach  of  trust,  even  though  he  be  an  insolvent  or  ir- 
responsible person. ^- 

GUARDIANS'   BONDS. 

Security  Required  from  Guardian. 

The  statute  provides  that  every  court  or  other  competent  au- 
thority appointing  a  guardian,  shall  take  bond  of  him  with 
good  sureties  and  in  sufficient  sum  for  the  faithful  execution 
of  his  ofifice."^ 

Security  from  Testamentary  Guardian, 

The  statute  further  provides  that  every  guardian  appointed 
by  last  will  and  testament,  which  shall  be  legally  proved  and  re- 
corded, shall,  before  he  exercises  any  authority  over  the  minor 
or  his  estate,  appear  before  the  orphans'  court  or  surrogate  and 
declare  his  acceptance  of  the  guardianship,  which  shall  be  re- 
corded, and  shall  give  bond,  with  such  sureties  and  in  such 
sum  as  the  said  court  or  surrogate  may  approve  of  and  order, 
for  the  faithful  execution  of  his  office,  unless  it  is  otherwise 
directed  by  the  testator's  will.'* 

Form  of   Bond. 

The  form  of  a  guardian's  bond  is  not  important.  A  bond 
given  by  a  guardian  not  conforming  to  the  act,  will,  neverthe- 
less, be  enforced,  so  far  as  it  is  consistent  with  the  policy  of 
the  statute. ^^  So  a  guardian's  bond,  calling  in  its  premises  for 
three  sureties,  executed  by  two  of  them  and  left  with  the  county 
surrogate,  they  at  the  time  telling  the  guardian  to  bring  in  the 
third  surety,  and  he  promising  to  do  so,  will  be  binding  on 
those  executing,  although  the  third  surety  failed  to  execute.^'" 

Where  guardianship  of  several  minors  is  committed  to  the 
same  person,  a  separate  bond  should  be  given  to  secure  the  es- 
tate of  each  minor  ;'■'    but  a  guardian's  bond  securing  the  estate 

32Holcomb   V.  Coryell,   12  N.  J.  ^sOrdinary  v.  Heishon,  42  N.  J. 

Kq.,  289.  L.,  15. 

•'•'Orplians'  Court  Act,  sec.  49.  3  "^Ordinaryv.  Thatcher,  41  N.  J. 

Comp.  Stat.,  3829.  L.,  403. 

^^Orphans'   Court    Act.   sec.   50.  ^^Ordinary  v.  Heishon.  42  N.  J 

3  Comp.  Stat.,  3829.  L.,   15. 


3i6  Probate  Law  and  Practice. 

of  two  minors,  in  joint  form,  and  particularizing  the  duties  to 
be  performed  by  the  guardian,  was  held  valid.^® 

Nature  of  Bond. 

The  guardianship  bond  is  collateral  merely,  and  does  not 
preclude  the  remedy  against  the  guardian  himself.^^ 

Amount  of  Bond. 

The  statute,  as  has  been  seen,  requires  that  a  guardian  give 
bond  "with  good  sureties  and  in  sufficient  sum  for  the  faith- 
ful execution  of  his  office."*"  The  amount  of  the  bond  is 
therefore  in  the  discretion  of  the  surrogate  or  court  granting 
the  letters.  In  the  ordinary  case,  a  bond  in  double  the  amount 
of  the  personal  property  coming  to  the  hands  of  the  guardian, 
signed  by  two  sureties,  each  owning  real  estate  to  the  amount 
of  the  penalty  of  the  bond,  is  required.  Difficulty  in  fixing 
the  amount  of  a  guardian's  bond  is  sometimes  encountered 
in  a  case  where  the  estate  of  the  ward  consists  either  wholly 
or  in  part  of  an  annual  income,  whether  from  real  estate  or 
other  sources.  In  such  cases,  a  safe  rule  to  follow  is  to  esti- 
mate the  total  amount  of  income  which  the  guardian  will  re- 
ceive during  the  minority  of  his  ward,  deduct  therefrom  the 
estimated  expenditures  for  the  benefit  of  the  ward,  keeping  in 
mind  the  obligation  of  any  persons  standing  in  loco  parentis 
to  the  ward  to  support  him,  either  wholly  or  in  part,  and  to 
take  a  bond  in  double  the  amount  of  the  result  thus  obtained. 

Guardians'  bonds  frequently  run  for  long  periods  of  time, 
and  are  taken  for  the  protection  of  those  who  are  unable  to 
help  themselves,  and  who  are  often  without  other  protectors 
than  the  very  person  giving  the  bond,  who  is  usually  the  near- 
est of  kin.  Special  care  should  therefore  be  taken  to  ascer- 
tain the  sufficiency  both  of  the  penalty  and  of  the  sureties 
before  accepting  bonds  of  this  character. 

The  statute  provides  a  method  whereby  the  amount  of  a 
guardian's  bond  may  be  reduced,  in  a  case  where  the  personal 

380rdinary  v.  Heislion,  42  N.  J.  ^^Orphans'   Court   Act,   sec.   49, 

Lm     15-  p.  315,  supra. 

39Shepherd  v.  Newkirk,  21  N.  J. 
L.,  302. 


Qualification  of  Sureties.  317 

property  coming  into  his  hands  is  very  large,  by  impounding 
all  or  a  portion  of  the  securities  of  the  estate,  and  giving  bond 
as  to  the  residue  not  so  impounded.*^ 

FEME   COVERT   EXECUTRIX,   ADMINISTRATRIX,    &c., 
MAY  BE  REQUIRED  TO  GIVE  BONDS. 

Provisions  for   Security  from  Executrix   Marrying  after 
Appointment. 

A  married  woman  may  be  an  executrix,  administratrix, 
guardian  or  trustee,  and  her  husband  may  be  accepted  as  a 
surety  on  any  bond  given  by  her  as  such ;  in  case  of  the  mar- 
riage of  any  female  after  her  appointment,  the  orphans'  court 
may,  on  application  of  any  party  in  interest,  in  its  discretion, 
make  an  order  that  her  power  cease  and  be  suspended ;  and 
the  said  court  may,  on  such  notice  to  her  as  it  may  direct,  re- 
voke the  letters  issued  to  her  and  remove  her  from  her  said  of- 
fice, unless  she  shall,  within  such  time  as  the  said  court  may 
limit  and  appoint,  give  bond  to  the  ordinary,  with  two  or  more 
sufficient  sureties,  to  be  approved  by  the  court  in  such  sum  as 
the  court  may  direct,  conditioned  for  the  faithful  execution  of 
the  trust  imposed  and  the  true  payment  of  all  moneys  of  the 
estate  which  shall  have  come  or  shall  thereafter  come  to  her 
hands. ^- 

NUMBER  AND   QUALIFICATION   OF   SURETIES. 
Number  of  Sureties. 

As  has  been  seen,  the  statute  requires  the  surrogate,  upon 
the  grant  of  letters  of  administration,  to  take  a  bond  with  two 
or  more  able  sureties.  In  the  case  of  the  grant  of  letters  of 
guardianship,  the  requirement  is  to  take  a  bond  with  "good 
sureties,"  without  naming  the  number  required. ^^  The  uniform 
practice  is,  however,  to  require  at  least  two  sureties  on  all 
bonds. 


*iSee  p.  319,  infra.  "Orphans'   Court   Act,   sec.   49, 

♦^Orphans'  Court  Act,  sec.  142.      p.  315,  supra. 
3  Comp.   Stat.,  3866. 


3i8  Probate  Law  and  Practice. 

Qualification  of  Sureties. 

The  question  who  may  be  accepted  as  sureties  is  left  by  the 
statute  to  the  discretion  of  the  surrogate  or  court  making  the 
appointment.  It  is,  however,  as  has  been  said,  the  uniform 
practice  to  require  each  surety  to  qualify  as  the  owner  of  real 
estate  within  this  state  above  his  just  debts  and  liabilities  in 
the  full  amount  of  the  penalty  of  the  bond.  A  non-resident  of 
New  Jersey,  owning  real  estate  within  this  state,  may  be  ac- 
cepted as  a  surety.  The  statute  provides  that  the  husband  of 
a  married  woman  may  be  accepted  as  her  surety  on  any  bond 
given  by  her  as  executrix,  administratrix,  guardian  or  trus- 
tee." 

Married  Women. 

The  statute  provides  that  no  married  woman  shall  become 
a  guarantor,  nor  shall  she  be  liable  or  answer  for  the  debt,  de- 
fault or  miscarriage  of  another.*^  Married  women  are  there- 
fore incompetent  to  act  as  sureties  on  an  administration  bond. 

Surety  Companies. 

The  statute  authorizes  any  surety  company,  authorized  by 
law  to  transact  business  in  this  state,  to  execute  the  bond  of 
any  executor,  administrator,  guardian  or  trustee,  and  further 
provides  that  such  bond  shall  be  valid,  though  any  statute  re- 
quires that  the  bond  be  executed  by  two  sureties.*" 

Expense  o£  Obtaining  Surety   Bond   Chargeable  against 
Estate. 

Any  receiver,  assignee,  guardian,  committee,  trustee,  ex- 
ecutor or  administrator,  required  by  law  or  by  the  order  of 
any  court  to  give  bond  as  such,  may  include  as  part  of  the 
lawful  expense  of  executing  his  trust  such  reasonable  sum 
paid  a  company  authorized  under  the  laws  of  this  state  so 
to  do,  for  becoming  his  surety  on  such  bond,  as  may  be  al- 
lowed by  the  court  in  which  he  is  required  to  account,  not 
exceeding,  however,  one  per  centum  per  annum  on  the  amount 
of  such  bond.*' 

■  **Orphans'  Court  Act,  sec.  142.  ^^o  Comp.  Stat.,  2852.  sec.  46. 

p.  317,  supra.  i-4  Comp.  Stat.,  5051,  sec.  2. 

^^3  Comp.  Stat.,  3226,  sec.  5. 


Deposit  in  Lieu  of  Bond.  319 

VALIDITY  OF  BOND. 

In  General. 

A  bond  may  be  good  in  part,  and  bad  in  part ;  and  the  court 
will  support  the  good  part  and  reject  the  bad  part,  where  the 
good  can  be  separated  from  the  bad.*®  So  a  bond,  calling  in  its 
premises  for  three  sureties,  executed  by  two  of  them,  and 
left  with  the  surrogate  pending  the  execution  thereof  by  the 
third  surety,  will  be  binding  upon  those  executing  it,  though 
the  third  surety  failed  to  execute.*^ 

PROVISIONS    FOR   DEPOSIT    IN    LIEU    OF    BOND. 

Securities  May  Be  Impounded. 

In  all  cases  where  a  bond  or  bonds  shall  or  may  be  required 
by  the  ordinary,  orphans'  court  or  by  a  surrogate  from  an  ex- 
ecutor, administrator,  guardian  or  trustee,  if  the  value  of  the 
estate  or  fund  is  so  great  that  the  ordinary,  orphans'  court  or 
surrogate  deems  it  inexpedient  to  require  security  in  the  full 
amount  prescribed  by  law,  the  said  ordinary,  orphans'  court 
or  surrogate,  as  the  case  may  be,  may  direct  that  any  securities 
for  the  payment  of  money  belonging  to  the  estate  or  fund  be 
deposited  in  such  savings  bank,  savings  institution  or  trust  com- 
pany duly  incorporated  under  the  laws  of  this  state,  or  such 
national  bank  having  safe  deposit  boxes  for  the  use  of  private 
individuals,  as  may  be  designated  by  the  order  of  the  ordinary,^  ^ 
orphans'  court  or  surrogate. ""^ 

Bond  virith  Respect  to  Portion  of  Estate  Not  Secured  by 
Deposit. 

After  such  a  deposit  has  been  made,  the  ordinary,  orphans' 
court  or  surrogate  may  fix  the  amount  of  the  bond,  with  re- 
spect to  the  value  of  the  remainder  only  of  the  estate  or  fund.'"' 

Method  of  Making  and  Withdrawing  Deposit. 

Such  deposit  shall  be  made  in  the  name  of  the  executor,  ad- 
ministrator, guardian  or  trustee,  and  the  security  or  securities 

*80rdinary  v.  Smith,  14  N.  J.  L.,  sOQrphans'   Court   Act.    sec.   52, 

479.     •  as  amended  by  P.  L.   191 5.  p.  40- 

^"Ordinary  v.  Thatcher,  41  N.  J.  '^'Orphans'  Court  Act,  sec.  53.    3 

L.,  403.  Comp.  Stat.,  3830. 
22 


^2C  Probate  Law  and  Practice. 

thus  deposited  shall  not  be  withdrawn  from  the  custody  of  such 
savings  bank,  savings  institution,  trust  company  or  national 
bank,  except  upon  the  special  order  of  the  ordinary,  orphans' 
court  or  surrogate,  and  no  executor,  administrator,  guardian 
or  trustee  shall  receive  or  collect  the  whole  or  any  part  of  the 
principal  of  such  securities  so  deposited  without  the  special 
order  of  the  ordinary,  orphans'  court  or  surrogate,  entered  in 
the  appropriate  book.^^ 

When  Order  of  Withdrawal  of  Deposit  May  be  Made. 

Such  an  order  can  be  made  in  favor  of  the  executor,  admin- 
istrator, guardian  or  trustee  only  where  an  additional  bond  has 
been -given  by  him,  or  upon  proof  that  the  estate  or  fund  has 
been  so  reduced  by  payments  or  otherwise,  that  the  penalty 
of  the  bond  originally  given  will  be  sufficient,  in  amount,  to 
satisfy  the  provisions  of  law  relating  to  the  penalty  thereof, 
if  the  security  so  withdrawn  is  also  reckoned  in  the  estate  or 
fund.^^ 

Duplicate  Certificate  to  be  Issued  by  the  Fiduciary  Agent. 

The  savings  bank,  savings  institution,  trust  company  or 
national  bank  receiving  such  deposit  shall  issue  a  certificate  in 
duplicate,  setting  forth  the  amount  and  nature  of  securities  de- 
posited, and  deliver  one  certificate  to  the  ordinary,  orphans' 
court  or  surrogate,  and  the  other  to  the  executor,  adminis- 
trator, guardian  or  trustee  in  each  case.^* 

WHEN  ADDITIONAL  BOND  MAY  BE  REQUIRED. 

Statutory  Provisions. 

The  statute  provides  that  the  orphans'  court  shall  have  power, 
where  letters  of  administration  or  guardianship  shall  have  been 
granted  upon  insufficient  security,  or  the  sureties  on  any  admin- 
istrator's or  guardian's  bond  shall  be  or  become  in  failing  or 
dubious  circumstances,  or  insufficient  for  the  security  of  the 
estate,  to  order  and  direct  such  administrator  or  guardian  to 

=20rphans'   Court  Act,   sec.   54,  ^^Orphans'   Court  Act,   sec.   56, 

as  amended  by  P.  L.  191S,  p.  40.      as  amended  by  P.  L.  1915,  p.  40. 

^^Orphans'  Court  Act,  sec.  55.  3 
Comp.  Stat.,  3830. 


Liability  of  Sureties.  321 

give  such  further  or  other  security  to  the  ordinary,  by  bonds  in 
the  usual  form,  as  the  said  court,  after  hearing  creditors  or 
persons  concerned,  shall  approve. ^'^ 

WHEN  COURT  MAY  ORDER  BOND  REDUCED. 

Statutory  Provisions. 

The  statute  provides  that  whenever  upon  the  allowance  by 
the  orphans'  court  of  the  intermediate  account  of  any  executor, 
administrator,  guardian  or  trustee  it  appears  from  said  account, 
to  the  satisfaction  of  said  court,  that  the  bond  given  by  such 
executor,  administrator,  guardian  or  trustee  is  in  a  larger  sum 
than  is  necessary  for  the  proper  protection  of  the  property 
and  assets  of  said  estate,  the  orphans'  court  shall  have  full 
power  and  authority  to  order  that  the  said  executor,  adminis- 
trator, guardian  or  trustee  give  a  new  bond  in  such  sum  as  the 
court  may  determine  is  sufficient  for  the  proper  protection  of 
the  property  and  assets  of  such  estate  remaining  in  the  hands 
of  such  executor,  administrator,  guardian  or  trustee. 

Upon  the  filing  of  said  bond  with  conditions  and  sureties  ap- 
proved by  the  orphans'  court,  the  said  court  may  order  that  the 
sureties  upon  the  original  bond  be  discharged  from  all  liability 
thereunder  from  and  after  the  date  of  such  order.  All  such 
proceedings  shall  be  commenced  by  petition  verified  by  the 
oath  of  the  petitioner  and  shall  be  upon  such  notice  as  the 
court  may  direct.^® 

NATURE   AND    EXTENT   OF   LIABILITY   OF    SURETIES. 

In  General. 

Sureties  stand  bound  for  the  default  and  fraud  of  their 
principal,  and  have  no  right  to  any  favor  or  immunity  that 
would  not  be  accorded  to  him ;  but  the  bond  is  collateral 
merely,  and  does  not  preclude  the  remedy  against  the  prin- 
cipal.^^ The  surety  on  an  administration  bond  becomes  in- 
debted, so  as  to  bind  his  lands  in  case  of  his  decease,  as  soon 

ssQrphans'  Court  .Act,  sec.  141.  57Shepherd    v.    Newkirk,   21    N. 

3   Comp.   Stat.,  3866.  J.   L.,  302.     In    re   Gaston   Trust. 

^eP.  L.  191 1,  p.  95.  35    N.   J.   Eq.,  60.     Affirmed   sub 

nom  Veghte  v.  Steel,  ib.,  348. 


322 


Probate  Law  and  Practice. 


as  the  administrator  makes  default,  even  though  judgment 
on  the  bond  has  not  been  rendered  ;^^  and  the  omission  of 
wards,  for  some  years  after  they  come  of  age,  to  prosecute 
their  guardian  for  money  due  them  will  not  discharge  the 
surety.^''  But  where  a  guardian  who  had  made  an  assign- 
ment under  the  statute  for  the  benefit  of  his  creditors  was  re- 
moved, and  thereupon  settled  his  account  in  the  orphans'  court, 
<ind  his  successor  presented  to  the  assignee  of  such  removed 
guardian  a  claim  for  the  amount  due  upon  the  accounting  and 
received  a  full  distributive  quota  from  such  assignee,  it  was 
held,  in  an  action  brought  against  the  sureties  of  the  removed 
guardian,  that  the  sureties  were  discharged  by  the  voluntary 
act  of  the  succeeding  guardian/'" 

If  an  administrator  c.  t.  a.  becomes  possessed  of  a  fund  upon 
the  theory  that  in  virtue  of  his  office  as  administrator  he  is  also 
trustee  under  the  will  of  his  decedent,  and  afterward  defaults 
with  reference  to  the  fund  in  his  assumed  capacity  of  trustee,  a 
suit  cannot  be  maintained  against  the  surety  on  his  bond  as 
administrator  c.  t.  a.,  because  the  surety's  obligation  is  not  to 
answer  for  a  trustee,  but  only  for  an  administrator,  whose 
•duties  do  not  include  the  execution  of  a  trust  as  such.*^^ 

For  Debts  Due  from  Administrator,  &c.,  to  Estate. 

If  at  the  time  the  surety  assumes  his  responsibility  the  ad- 
ministrator is  indebted  to  the  estate,  and  able  to  pay,  the  amount 
of  the  debt  will  be  considered  as  so  much  money  in  his  hands 
as  administrator  at  that  time,  and  the  surety  will  be  fesponsible 
for  it  f -  but  if  at  the  time  the  surety  assumes  his  responsibility 
the  administrator  is  a  debtor  to  the  estate  and  is  insolvent  and 
never  becomes  able  to  discharge  such  indebtedness,  the  surety 
is  not  bound  for  such  delinquency  of  his  principal,  since  he  is 
only  bound   for  the   faithful  performance  of   the  principal's 

'■■    '^m1 

^^Ransom  v.  Brinkerhofif,  56  N.  ^^In  re  Quimby's  Estate,  84  N.  i 

J.   Eq.,    149.     Reversed,   57   N.   J.  J.  Eq.,  i. 

Eq.,  312.  ^^Harker  v.  Irick,  10  N.  J.  Eq., 

soWalling's  Case,  35  N.  J.  Eq.,  269.    Terhune   v.   Oldis,  44   N.   J. 

105.  .  Eq.,  146-152.          ''•    •■'''' 
•^''^Ordinarv  v.  Dean,  44  N.  J.  L,.; 

64. 


Liability  of  Sureties.  3J3 

duties  as  administrator,''^  if  under  such  circumstances  the  ad- 
ministrator, in  the  settlement  of  the  estate,  charges  himself 
with  the  debt,  and  his  accounts  should  be  passed  in  such  a  shape 
as  to  bind  the  surety  for  such  debt,  the  surety  himself  will  be 
relieved,  upon  application  to  the  proper  tribunal,  from  sucli 
responsibility.*'*  The  Prerogative  Court  has,  however,  no  juris- 
diction to  inquire  into  such  matters,  on  an  application  to  the 
Ordinary  to  have  the  amount  due  one  of  the  next  of  kin  satis- 
fied from  a  judgment  on  the  administration  bond ;  the  proper 
course  for  the  surety  is  either  to  make  application  to  the  court 
in  which  the  decree  allowing  the  administrator's  account  was 
made,  or  to  proceed  by  bill  in  chancery.*'^ 

In  all  cases  of  this  instance,  the  burden  is  upon  the  surety 
to  prove  the  insolvency  of  the  administrator. ^'°^ 

Failure  to  File  Inventory. 

A  creditor  may  assign,  as  a  breach,  the  non-filing  of  a  true 
and  perfect  inventory. '''' 

Failure  to  Account. 

Failure  to  render  an  account  in  due  form,  and  within  the 
time  limited  by  law,  is  a  breach  of  an  administrator's  bond, 
and  may  be  assigned  as  such ;'"  and  this  at  any  time  before 
decree  on  final  accounting,  even  though  an  intermediate  ac- 
count was  filed. '^^ 

While  it  is  lawful  for  the  Ordinary,  in  his  discretion,  at  the 
instance  of  a  party  aggrieved,  to  direct  the  prosecution  of  an 
administrator's  bond  in  case  such  administrator  has  not  ac- 
counted within  the  time  required  by  law,  because  such  failure 
is  a  breach  of  the  condition  of  the  bond,  it  is  not  usual  for  him 

63Harker  v.  Irick,  10  N.  J.  Eq.,  '"'^aTerhune   v.    Oldis,   44   N.   J. 

269.     Terhune  v.  Oldis,  44  N.  J.       Eq.,    146-153- 
Eq.,   146-152.  ♦^•'Dickerson   v.   Robinson,   6   N, 

o^Harker  v.  Irick,  10  N.  J.  Eq.,      J.  L.,   I95- 
269.     Ordinary  v.  Kershaw,  14  N.  ^^In  re  Webster,  5  N.  J.  Eq.,  89- 

J.  Eq.,  527.  96.     Ordinary  v.  Barcalow,  36  N. 

^'^Ordinary  v.  Kersaw,  14  N.  J.  J.  L.,  15.  Ordinary  v.  Wolfson, 
Eq.,   527-  65  N.  J.  L.,  418. 

"''Dickerson  v.  Robinson,  6  N.  J. 
I-.    195- 


324  Probate  Law  and  Practice. 

to  do  so,  unless  it  appears  that  the  delay  has  been  contumacious, 
or  so  continued  as  to  work  injury,  and  that  some  substantial 
good  may  be  accomplished  by  the  prosecution.*^'*  So  where  it 
appears  that  an  administrator's  delay  in  filing  his  account  was 
due  to  an  action  pending  in  the  courts  of  the  state  of  New 
York,  and  the  defendant  sureties  are  financially  responsible 
and  the  judgment  against  them  for  the  amount  of  the  debt  will 
be  vexatious  and  oppressive,  an  order  for  the  prosecution  of 
the  bond  will  not  be  allowed.'" 

The  condition  in  an  administration  bond  requiring  that  the 
administrator  render  a  just  and  true  account  of  his  adminis- 
tration is  not  restricted  merely  to  the  rendering  of  an  account, 
but  is  designed  to  secure  a  faithful  administration  of  the 
estate.^^  If  the  obligor  neglects  to  turn  over  the  amount  due 
upon  his  account,  he  is  guilty  of  a  breach  of  the  condition  to 
account.'- 

Non-Payment  of   Debts. 

A  creditor  cannot  assign,  for  breach  of  the  condition,  the 
non-payment  of  a  debt,  nor  can  he  get  judgment  upon  the  bond 
for  his  own  individual  debt ;"  but  he  may  assign  as  a  breach 
that  the  administrator  has  not  well  and  truly  administered,  and 
allege  as  a  reason  therefor  the  non-payment  of  a  debt  due 
him.'* 

It  is  not  a  breach  of  the  condition  of  an  administration  bond 
requiring  an  administrator  to  pay  the  residue  remaining  after 
payment  of  debts  to  the  persons  entitled  by  law  to  receive  the 
same,  that  the  administrator  of  an  insolvent  estate  has  not  paid 
over  to  the  creditors  their  /to  rata  share  ordered  to  be  paid  to 
them  by  the  orphans'  court.  The  remedy  of  the  creditors  is 
under  the  other  conditions  of  the  bond.'^ 


^'^Lee's  Case,  43  N.  J.  Eq.,  172.  'SDickerson   v.   Robinson,   6  N. 

In  re  Webster,  5  N.  J.  Eq.,  89-96.  J.  L.,  195. 

^^Lee's  Case,  43  N.  J.  Eq..  172.  ^*Dickerson   v.   Robinson,  6   N. 

^iHazen  v.  Durling,  2  N.  J.  Eq.,  J.  L.,  19S.    Hazen  v.  Durling,  2  N. 

^33.  J.  Eq.,  133- 

'-Ordinary  v.  Wolfson.  65  N.  J.  ■^^Ordinary  v.  Cooley,  30  N.  J 

L.  418.  L.,  271. 


Liability  of  Sureties.  325 

In  laying  a  breach  of  the  condition  requiring  the  adminis- 
trator to  make  distribution,  it  must  be  shown  that  the  dis- 
tributee tendered  a  refunding  bond.^" 

Non-Payment  of  Judgment. 

The  non-payment  of  a  judgment  obtained  against  an  ad- 
ministrator may  be  assigned  as  a  breach  after  return  of  execu- 
tion nulla  bona;"  but  the  non-payment  of  a  void  judgment 
cannot  be  assigned  as  a  breach/® 

Effect   when    Surety    Pays    Judgment    against   Adminis- 
trator, 

A  surety  on  an  administration  bond  who  pays  a  judgment 
against  the  estate,  on  which  an  execution  has  been  issued  and 
returned  nulla  bona,  becomes  a  creditor  of  the  administrator 
in  his  own  right,  and  must  exhaust  his  remedies  against  him 
before  the  Court  of  Chancery  can  interfere  in  his  behalf  to 
reach  the  assets  of  the  estate.^'' 

Non-Payment  of  Distributive  Share. 

Non-payment  of  a  distributive  share  cannot  be  assigned  as  a 
breach  by  the  distributee  until  after  the  decree  for  distribu- 
tion made  by  the  orphans'  court.*°  Where  the  administrator  of 
a  testamentary  guardian,  erroneously  supposing  that  as  such 
administrator  he  became  guardian  of  the  decedent's  wards, 
took  possession  of  the  goods,  etc.,  of  the  wards,  a  neglect  by  him 
to  pay  over  to  the  wards  the  amount  found  due  them,  on  set- 
tlement of  his  accounts  with  them  before  the  orphans'  court, 
is  not  a  breach  of  the  administration  bond.*^ 

In  laying  the  non-payment  of  a  distributive  share  as  a  breach 
of  an  administrator's  bond,  it  must  be  shown  that  such  dis- 
tributee tendered  a  refunding  bond.^- 

■«Ordinary  v.  White,  43  N.  J.  L.,  ^''Ordinary  v.  Smith,  15  N.  J.  L., 

22.  92. 

"Hazen  v.  Durling,  2  N.  J.  Eq.,  s' Williamson    v.    Lippincott,    10 

133.  N.  J.  L.,  35. 

^sDickerson  v.  Robinson,  6  N.  J.  ssOrdinary  v.  White.  43  N.  J.  L., 

L.,   195-  22. 

^^Hazen  v.  Durling,  2  N.  J.  Eq., 
1.33- 


326  Probate  Law  and  Practice. 

Non-Payment  of  a  Legacy. 

The  non-payment  of  a  legacy  cannot  be  assigned  as  a  breach 
of  the  bond  of  an  administrator  cinn  testamento  annexo  with- 
out showing  a  settlement  of  the  executor's  accounts  in  the  or- 
phans' court,  and  a  balance  in  his  hands  after  the  payment  of 
debts. ^^ 

Breaches  of  Guardians'  Bonds. 

A  breach  cannot  be  assigned  on  a  guardian's  bond  to  the 
effect  that  he  has  not  paid  over  the  estate  to  the  infant,  he 
having  arrived  at  age,  until  after  final  settlement  of  the 
guardian's  account  in  the  orphans'  court. ^* 

PROSECUTION   OF   BONDS. 

Statutory  Provisions. 

In  case  any  bond  given  by  executors,  administrators,  guard- 
ians or  trustees,  in  pursuance  of  this  act,  shall  become  for- 
feited, the  ordinary  may  cause  the  same  to  be  prosecuted  in 
any  court  of  record,  at  the  request  and  expense  of  any  party 
aggrieved  by  such  forfeiture ;  and  the  moneys  recovered  upon 
such  bond  shall  be  applied  towards  making  good  the  damage 
sustained  by  the  not  performing  the  said  condition  in  such  man- 
ner as  the  ordinary  shall  by  his  sentence  or  decree  direct.*^ 

The  only  relief  against  the  sureties  on  a  bond,  for  a  person 
aggrieved,  is  by  suit  on  the  bond  in  the  name  of  the  Ordinary. 
Equity  has  no  jurisdiction.^^ 

Application  for  Permission  to  Prosecute. 

The  usual  and  proper  practice,  on  application  to  the  Pre- 
rogative Court,  is  to  proceed  by  petition,  duly  verified,  setting 
forth  the  facts  on  which  the  application  is  founded ;  but  the 
court  will  not,  for  the  mere  want  of  a  petition,  set  aside  an 
order  otherwise  regular.^^ 

830rdinary  v.  Barcalow,  36  N.  soDQj-sheimer  v.  Rorback,  22,  N. 

J.  L.,  15.  J.  Eq.,  46.    Affirmed,  25  N.  J.  Eq., 

^♦Ordinary  v.  Heishon,  42  N.  J.  516.     Rutherford  v.  Alyea,  53  N. 

L.,  15.  J.   Eq.,   580.     Reversed,   54  N.  J. 

s'^Orphans'  Court  Act.  sec.   187.  Eq.,  411. 

3  Comp.  Stat.,  3882.  s^n   re   Webster,   4   N.   J.   Eq., 

558.     S.  C,  5  N.  J.  Eq.,  89. 


Prosecution  of  Bonds  327 

What  Applicant  Must  Show. 

Upon  an  application  for  an  order  to  prosecute  an  adminis- 
trator's bond,  all  that  can  properly  be  required  is  that  the  ap- 
plicant should  show  a  prima  facie  case  of  indebtedness  on  the 
part  of  the  estate  and  a  forfeiture  of  the  bond  by  the  adminis- 
trator. It  is  the  duty  of  the  Ordinary  to  see  that  the  bond  is 
not  prosecuted  for  the  purpose  of  vexation  or  oppression  ;  but 
beyond  this,  no  possible  good  can  result  from  throwing  ob- 
stacles in  the  way  of  enforcing  a  remedy  upon  it.^^ 

Upon  an  application  for  leave  to  prosecute  a  bond,  the  Ordi- 
nary has  no  jurisdiction  to  inquire  whether  or  not  the  bond 
is  actually  forfeited ;  this  is  a  question  for  the  law  court  in 
which  the  suit  is  brought.^** 

Who  Entitled  to  Make  Application. 

The  application  must  be  made  by  some  person  aggrieved  f^ 
but  a  general  creditor  of  the  estate  is  a  "party  aggrieved,"  in 
the  contemplation  of  the  statute,,  and  it  is  not  necessary  that 
he  should  have  established  his  claim  by  judgment.'^^  All  that 
can  be  properly  required  is  that  the  creditor  should  show  a 
prima  facie  case  of  indebtedness  on  the  part  of  the  estate,  and 
a  forfeiture  of  the  bond  by  the  administrator ;"-  but  it  is  the 
duty  of  the  Ordinary  to  see  that  the  bond  is  not  prosecuted  for 
the  purposes  of  vexation  or  oppression,^^  and  prosecution  of  a 
bond  will  not  be  ordered  for  a  mere  technical  breach  unaccom- 
panied by  substantial  dereliction  from  duty.^* 

88In  re  Honnass,   14  N.  J.  Eq.,  Co.   Savings  Bank,  2>2  N.  J.  Eq., 

493.  689. 

89In  re  Webster,  5  N.  J.  Eq.,  89-  'J-In  re  Honnass,   14  N.  J.  Eq., 

97.    In  re  Green,  8  N.  J.  Eq.,  550-  493- 

554.  »3in  re  Honnass,   14  N.  J.  Eq., 

90In  re  Webster,  5  N.  J.  Eq.,  89-  493- 

97.     S.  C,  4  N.  J.  Eq.,  558.     Or-  -'^In  re  Webster,  5  N.  J.  Eq.,  89- 

phans'  Court  Act,  sec.  187,  p.  326,  96.      Lee's    Case,    43    N.    J.    Eq., 

supra.  172-175.     As   to  what   constitutes 

^iDickerson  v.  Robinson,  6  N.  J,  a  breach  of  a  bond,  see  "Nature 

L.,    195.      In    re    Honnass,    14   N.  and    Extent  of   Liability,"  p.  321, 

J.   Eq.,   493.      In   re   Northampton  supra. 


328  Probate  Law  and  Practice. 

Security  for  Costs. 

On  granting  the  order  for  prosecution,  the  Ordinary  may 
require  a  bond  to  be  given  to  secure  the  payment  of  costs.''^ 

Where  Order  to  be  Filed. 

The  order  for  prosecution  should  be  filed  in  the  Prerogative 
Court,  out  of  which  it  issues,  and  not  in  the  court  in  which 
action  is  brought.®^ 

Validity  of  Order. 

An  order  to  prosecute  an  administrator's  bond  made  by 
the  Ordinary  will  be  taken  in  all  collateral  proceedings  to  be  en- 
tirely conclusive."'  So  the  validity  of  the  order  cannot  be  in- 
quired into  by  the  court  in  which  the  action  is  brought  upon 
the  bond.^^ 

When  Order  Will  Be  Set  Aside. 

The  Prerogative  Court  will,  in  a  summary  manner,  and  upon 
a  mere  motion,  inquire  into  the  validity  of  an  order  previously 
made  by  the  Ordinary  for  the  prosecution  of  an  administrator's 
bondf"  but  the  court  will  not  set  aside  an  order  otherwise 
regular,  merely  because  it  was  not  founded  upon  a  peti- 
tion^ or  because  the  petition  was  not  verified,-  nor  because 
the  Ordinary  did  not  require  a  bond  of  indemnity  against  costs.' 
And  where  the  petition  states  that  the  administrator  had  not 
paid  persons  entitled  thereto  the  balance  of  a  fund  in  his  hands, 
the  order  will  not  be  set  aside  on  the  ground  that  no  decree 
of  distribution  has  been  made  by  the  orphans'  court,  nor  be- 

95Dickerson  v.  Miller,   13  N.  J.  ^^In   re   Webster,   4   N.   J.   Eq., 

L.,  3.    In  re  Webster,  5  N.  J.  Eq.,  558. 

89-97.  iln  re  Webster,  4  N.  J.  Eq.,  558. 

96Dickerson  v.  Miller,   13  N.  J.  S.  C,  5  N.  J.  Eq.,  89. 

L.,  3.  -In  re  Green,  8  N.  J.  Eq.,  550. 

^^Ordinary  v.  Poulson,  43  N.  J.  Hn  re  Webster,  5  N.  J.  Eq.,  89. 

L..  33-  In  re  Green,  8  N.  J.  Eq.,  550. 

98In   re   Webster,   4   N.   J.   Eq., 
558. 


Suit  on  Bond.  329 

cause  the  distributees  did  not  tender  a  refunding  bond  ;*  but 
it  must  appear  that  the  order  was  made  at  the  request  of  a 
party  aggrieved.^ 

SUIT  ON  BOND. 

Parties  Plaintiff. 

Suit  on  an  administration  bond  should  be  brought  in  the 
name  of  "The  Ordinary  of  the  State  of  New  Jersey"  as  plain- 
tiff."^  It  is  not  error,  however,  to  insert  the  name  of  the  per- 
son who  is  Ordinary  as  the  plaintiff,  before  the  words  "The 
Ordinary,  etc." ;  the  name  is  mere  surplusage,  if  correctly 
given.' 

Discontinuance  of  Suit. 

In  case  any  bond  required  by  law  to  be  given  by  executors 
or  administrators  has  been  or  may  be  caused  by  the  ordinary 
to  be  prosecuted  in  any  court  of  record,  the  surety  on  such  bond 
may  before  judgment  apply  to  the  ordinary  by  petition  to  have 
such  suit  discontinued,  and  the  said  ordinary  shall  thereupon 
appoint  a  time  and  place  to  hear  said  application,  and  direct 
what  notice,  if  any,  be  given  to  the  creditors  of  said  deceased 
and  other  persons  aggrieved  by  the  forfeiture  of  said  bond,  of 
such   hearing.® 

When  Ordinary  May  Order  Suit  Discontinued. 

If  on  the  hearing  of  said  application  it  shall  appear  that  all 
the  damages  sustained  by  the  forfeiture  of  such  bond  have 
been  paid,  so  far  as  the  said  surety  shall  have  been  able  to 
ascertain,  the  ordinary  may,  if  he  considers  it  advisable,  direct 
that  the  said  suit  be  discontinued,  upon  the  payment  of  the 
taxed  costs  of  such  suit.^ 

The  Ordinary  may,  at  any  stage  of  the  proceedings,. for  good 
cause  shown,  stay  a  suit  on  an  administrator's  bond  which  was 

*In  re  Green.  8  N.  J.  Eq.,  550.  ^Ordinary  v.  Fowler,  22  N,  J.  L.. 

Hn    re    Webster.    4    N.   J.    Eq.,  48. 

558.  ^P.   L.    1901,   p.    183,   sec.    I.     3 

"Williamson  v.  Updike,  14  N.  J.  Comp.  Stat.,  3883,  sec.  191a. 

L.,  270.     Ordinary  v.  Fowler,  22  op.    L.    1901,    p.    183,    sec.    2;  3 

N.  J.  L.,  48.  Comp.  Stat.,  3883,  sec.  191b. 


330  Probate  Law  and  Practice. 

begun  under  his  own  previous  order  ;^*'  but  he  will  not  stay 
the  prosecution  of  the  bond  on  an  allegation  by  the  adminis- 
trator and  surety  that  they  "were  advised  and  believed"  that 
there  was  nothing  due  to  the  creditor  who  obtained  the  order 
for   prosecution.^^ 

Remedy  of  Creditor  Aggrieved  by  Such  Discontinuance. 

In  case  the  claim  of  any  creditor  or  of  any  person  aggrieved 
by  the  forfeiture  of  such  bond  shall  remain  unsatisfied  after 
the  discontinuance  of  said  suit,  such  party  may  make  applica- 
tion to  the  ordinary  to  re-prosecute  the  said  bond,  in  the  same 
manner  as  if  suit  had  not  Ijeen  instituted  on  the  same.^- 

Amount  of  Judgment. 

In  a  suit  on  an  administration  bond,  the  judgment  recovered 
must  be  for  the  penalty  of  the  bond,  and  a  court  of  law  cannot 
assess  damages  upon  it ;  these  are  assessed  and  distributed  by 
the  Ordinary.^^  The  only  way  in  which  the  defendant  can  ob- 
tain relief  against  the  payment  of  the  penalty  is  by  applying 
to  the  Ordinary  for  a  stay  of  execution  ;i*  but  the  Ordinary 
will  not,  except  in  case  of  mal-administration  and  consequent 
loss  of  assets,  order  the  full  amount  of  the  penalty  of  the  bond 
to  be  brought  in  by  the  bondsmen,  pending  the  assessment  of 
damages  by  himselP^ 

Assessment  of  Damages. 

After  judgment  has  been  obtained  upon  the  bond,  application 
should  be  made  to  the  Ordinary,  by  petition,  to  assess  the  dam- 
ages sustained  by  breach  of  the  bond.  Upon  such  an  applica- 
tion, the  Ordinary  may  hear  the  matter  in  person,  or  refer 
the  same  to  a  master  for  investigation  and   report.     Excep- 

^°Lee's  Case,  43  N.  J.  Eq.,  175.  calow.  36  N.  J.  L.,  15.    Lee's  Case. 

i^In    re    Northampton    County  43  N.  J.'  Eq.,  172-175. 

Savings  Bank,  32  N.  J.  Eq.,  689.  i*Ordinary  v.   Snook,    10  N.  J. 

i2p.  L.   1901,  p.  183,  sec.  3.     3  L.,  65. 

Comp.  Stat.,  3883,  sec.  191c.  inordinary  v.  Poulson,  43  N.  J. 

i^Dickerson  v.  Robinson,  6  N.  J.  L.,  33.     Lee's  Case,  43  N.  J.  Eq., 

L.,    195-203.     Ordinary  v.    Snook,  172-175. 
10  N.  J.  L.,  65.    Ordinary  v.  Bar- 


Suit  ox  Bond.  351 

tions-will  lie  to  tlie  master's  report,  as  in  references  made  bv 
the  Court  of  Chancery.^^ 

In  assessing  damages,  on  a  judgment  on  a  sureties'  bond,  the 
Ordinary  will  order  the  settlement  of  the  administrator's  ac- 
count in  the  orphans'  court. ^^ 

Measure  of  Damages. 

The  surety  of  an  administrator  is  required  to  bear  any  in- 
jurious consequences  arising  from  loss  to  the  estate  through 
the  administrator's  default  or  fraud,  and  has  no  right  to  any 
favor  or  immunity  that  would  not  be  accorded  to  the  adminis- 
trator himself.  So  the  damages  assessable  upon  a  judgment 
for  a  penalty  contained  in  an  administrator's  bond  should  in- 
clude not  only  an  equivalent  for  assets  lost  to  the  estate,  but 
also  costs  incurred  and  reasonable  counsel  fees  to  the  proctor 
who  took  proceedings  for  the  removal  of  a  derelict  adminis- 
trator and  the  attorney  who  prosecuted  the  suit  at  law  to  re- 
cover the  penalty  of  the  bond.^®  Damages  cannot  be  assessed 
in  excess  of  the*  penalty  of  the  bond  ;^^  but  where  it  appears 
that  the  condition  of  the  bond  has  been  broken,  and  that  the 
sum  really  due  thereon,  or  the  damage  actually  sustained  by 
such  breach,  exceeds  the  penalty  of  the  bond,  the  plaintiff 
may  recover  the  penalty  as  a  debt,  and  damages  for  its  deten- 
tion in  the  shape  of  interest  thereon  from  the  time  the  penalty 
ought  to  have  been  paid,  but  not  exceeding  in  the  whole  the 
sum   really   due    for  the   damage  actually   sustained.'" 

Defences  to  Application  to  Assess  Damages. 

Upon  an  application  to  assess  damages  upon  a  judgment 
against  sureties,  the  only  question  to  be  determined  is  the 
amount  to  be  raised,-^  and  no  defenses  against  the  liability 
on  the  bond  can  be  set  up  ;  thus,  sureties  cannot  object  that  the 

^•Dean's  Case,  3S  X.  J.  Eq.,  201,  ^^Ordinary  v.  Connolly,  75  N.  J. 

and   .see   "Nature   and   Extent   of  Eq.,    521. 

Liability  of  Sureties,"  p.  321,  supra.  ^^Wilson's    Case,   38   N.   J.    F,(i.. 

I'^Ordinary  v.   Snook,    10  N.  J.  205. 

L.,  65.     Lee's  Case.  43  N.  J.  Eq.,  -"Gloucester  v.  Eschbach,  54  N. 

172-175.  .L  L.,  150. 

'-'Ciivcn's  Case,  34  N.  J.  Eq.,  191. 


332  Probate  Law  and  Practice. 

master  assessed  damages  under  one  of  the  conditions  from 
which  they  claimed  that  they  were  exonerated  by  the  action 
of  the  new  guardian,  nor  can  they  claim  an  allowance  for 
taxes  on  the  ward's  lands  paid  by  the  guardian. -- 

An  application  to  have  the  amount  due  one  of  the  next  of 
kin  satisfied  from  the  judgment  on  the  administration  bond 
cannot  be  successfully  resisted  by  proving  that  a  part  of  the 
assets  which  made  up  the  balance  found  to  be  in  the  hands  of 
the  administrator  consisted  of  a  debt  due  from  the  adminis- 
trator to  the  estate  which  had  never  been  realized  to  the  estate 
because  of  the  continued  insolvency  of  the  administrator ;  the 
proper  course  of  the  surety  in  such  case  being  to  make  applica- 
tion to  the  court  in  which  the  decree  was  made,  or  to  pro- 
ceed by  bill  in  chancery.-^  So  upon  application  to  assess  dam- 
ages upon  a  judgment  against  sureties  because  of  the  failure 
of  the  administrator  to  apply  to  the  payment  of  intestate's  debts 
the  proceeds  of  lands  sold  under  an  order  of  the  orphans' 
court,  there  can  be  no  deduction  in  the  administrator's  favor 
because  of  his  failure  to  exhaust  the  personal  Estate  of  the  in- 
testate in  payment  of  debts  before  applying  the  proceeds  of  the 
realty  thereto.-^  And  so  where  a  ward,  whose  estate  was 
small,  lived  with  his  father,  who  was  his  guardian,  the  father 
during  his  lifetime  never  making  any  charge  against  the  ward 
for  his  maintenance,  and  the  father  having  become  insolvent 
and  failed  to  account  to  his  son  for  the  assets  of  his  estate,  suit 
was  brought  on  his  bond  and  judgment  recovered  for  the 
amount  of  the  penalty  and  the  sureties  insisted  that  the  sup- 
port of  the  ward  during  minority  should  be  allowed  in  esti- 
mating damages,  it  was  held  that  as  the  father  made  no  charges 
for  maintenance  and  never  intended  to  make  any,  there  was 
no  ground  for  such  allowance.-^ 


"Dean's    Case,    38    N.    J.    Eq.,  24Given's    Case,    34    N.    J.    Eq., 

201.  191. 

230rdinary  v.  Kershaw,  14  N.  J.  25\\,'aning's  Case,  35  N.  J.  Eq  , 

Eq.,   527.  105. 


Relief  of  Sureties.  333 

RELIEF   OF   SURETIES. 

In  Case  of  Waste,  &c. 

If  the  surety  on  any  bond  given  by  an  executor,  adminis- 
trator, guardian  or  trustee  for  the  execution  of  his  office, 
>hall  beheve  that  such  executor,  administrator,  guardian  or 
trustee  is  wasting  or  mismanaging  the  estate,  whereby  the  said 
surety  may  become  hable  to  loss  or  damage,  the  orphans'  court, 
upon  apphcation  of  such  surety  and  upon  sufficient  reason 
therefor,  may  order  such  executor,  administrator,  guardian 
or  trustee  to  render  an  account  of  his  or  her  administration 
or  guardianship  to  such  surety,  and  if  it  shall  appear  that  such 
executor,  administrator,  guardian  or  trustee  has  embezzled, 
wasted,  misapplied  or  mismanaged  the  estate,  the  said  court 
shall  direct  the  said  executor,  administrator,  guardian  or  trus- 
tee to  give  separate  security  to  his  or  her  surety  for  the  true 
payment  of  the  balance  remaining  in  his  or  her  hands  to  cred- 
itors, representatives  of  the  deceased,  or  the  ward  of  such 
guardian  or  persons  entitled  to  the  same.''' 

In  the  case  of  trustees,  the  act  also  gives  to  a  surety  further 
relief  by  revoking  the  trusteeship  and  by  authorizing  the  new 
trustee  to  bring  suit  against  the  old  trustee.-^ 

Jurisdiction  of  Orphans'  Court. 

The  orphans'  court  has  jurisdiction,  upon  the  application  of 
the  surety  of  an  habitual  drunkard's  guardian,  to  inquire  into 
the  solvency  of  his  co-sureties,  and  also  into  the  guardian's 
management  of  the  estate. ^^ 

Relief  of  Sureties  from  Further  Liability. 

When  either  or  all  of  the  sureties  of  any  executor,  adminis- 
trator, guardian  or  trustee  shall  desire  to  be  released  from  re- 
sponsibility on  account  of  the  future  acts  or  defaults  of  such 
executor,  administrator,  guardian  or  trustee,  such  surety  or 
sureties  may  make  application  to  the  orphans'  court  of  the 
county  in  which  the  letters  testamentary  or  of  administration, 

2«0rphans'  Court  Act,  sec.  143.  28i3ickerson  v.  Dickenson,  31  N. 

3   Comp.   Stat.,  3867.  J-    Eq.,   652. 

2^4  Comp.  Stat.,  5669,  sec.  6. 


334  Probate  Law  and  Practice. 

or  of  guardianship,  were  granted,  or  appointment  made,  for 
relief ;  and  the  said  court  shall  thereupon  direct  to  be  issued 
a  citation  to  such  executor,  administrator,  guardian  or  trustee, 
requiring  him  to  appear  before  said  court,  at  a  time  and  place 
to  be  therein  specified,  to  state  and  settle  his  account  of  the 
estate  that  has  come  into  his  hands,  and  of  the  claims  pre- 
sented to  him  against  the  same,  and  to  give  new  sureties,  in 
the  usual  form,  for  the  discharge  of  his  duties  ;  and  if  such  ex- 
ecutor, administrator,  guardian  or  trustee  shall  appear  and 
give  new  sureties  to  the  satisfaction  of  said  court,  the  court 
may  thereupon  make  order  that  the  surety  or  sureties,  who  ap- 
plied for  relief  in  the  premises,  shall  not  be  liable  on  their 
bond  for  any  subsequent  act,  default  or  misconduct  of  such 
executor,  administrator,  guardian  or  trustee.-^ 

Right  of  Sureties  to  Relief. 

The  right  of  sureties  to  be  relieved  from  responsibility  for 
the  future  acts  or  defaults  of  executors  is  absolute,  and  on 
a  proper  application  such  relief  must  be  granted ;  but  where 
the  sureties  do  not  appear  on  the  day  set  for  the  hearing,  their 
application  may  be  treated  as  abandoned  and  dismissed. ^° 
Sureties  who  have  taken  advantage  of  this  statute  are  not. 
however,  discharged  from  liability  for  the  acts,  defaults  or 
misconduct  of  their  administrator  prior  to  their  discharge.  So 
where  a  guardian  had  wasted  the  estate  of  his  ward  before 
the  giving  of  new  sureties  pursuant  to  the  applications  of  the 
old  ones  for  their  discharge,  the  original  sureties  were  held 
liable  notwithstanding  the  demand  for  the  wasted  funds  was 
not  made  until  the  new  sureties  had  been  given. ^^ 

Discharge  of  Sureties  after  Administration  Completed. 

At  any  tirne  after  the  expiration  of  three  months  from  the 
filing  of  any  final  decree  of  distribution  made  after  the  pass- 
ing by  any  orphans'  court  or  other  competent  court  of  this 

s^Orphans'  Court  Act.  sec.  144.  soAllen  v.  Sanders.  34  N.  J.  Eq.. 

3  Comp.  Stat..  3867.     See  also,  4      203. 

Comp.  Stat..  5051,  sec.   I.  si^o^Q^.^^'g  q^^^    ^e,  N.  J.  Eq.. 

108. 


Relief  oe  Sureties.  335 

state  of  the  final  account  of  any  administrator,  executor,  as- 
signee for  the  benefit  of  creditors,  trustee  under  any  will,  or 
guardian  of  any  minor,  the  court  which  passed  such  final  ac- 
count shall,  upon  application  on  behalf  of  any  person  interested, 
upon  such  notice  to  the  other  interested  persons  as  the  court 
may  prescribe,  and  upon  proof  being  made  to  the  satisfac- 
tion of  said  court  that  the  entire  trust  estate  has  been  dis- 
tributed according  to  law,  and  that  no  appeal  from  such  orders 
of  distribution  is  pending,  make  an  order  discharging  the  sure- 
ties or  bondsmen  of  such  administrator,  executor,  assignee, 
trustee  or  guardian,  as  the  case  may  be,  from  any  and  every 
liability  by  reason  of  their  having  become  such  sureties ;  from 
and  after  the  making  of  such  order  all  liability  of  every  such 
surety  named  in  such  order,  and  his,  her  or  their  heirs,  ex- 
ecutors and  administrators,  under  or  by  virtue  of  his,  her  or 
their  undertaking  as  such  surety,  shall  cease,  terminate  and  be 
at  an  end,  but  the  personal  liability  of  such  administrator,  ex- 
ecutor, assignee,  trustee  or  guardian,  as  the  case  may  be,  shall 
nevertheless  be  and  remain  as  if  no  such  order  had  ever  been 
made.^- 

Proceedings  by  Surety  to  Ascertain  Liability. 

In  case  any  bond  given  by  executors  or  administrators,  in 
pursuance  of  the  act  to  which  this  is  a  supplement,  has  or  shall 
become  forfeited,  and  has  been  or  may  be  caused  by  the  ordi- 
nary to  be  prosecuted  to  judgment,  in  any  court  of  record,  and 
it  shall  be  made  to  appear  to  the  ordinary,  by  petition  filed  by 
any  surety,  against  whom  judgment  has  been  or  shall  have 
been  rendered  upon  such  bond,  that  the  damages  sustained  by 
the  non-performance  of  the  condition  of  such  bond,  together 
with  the  costs  of  suit  and  execution  fees  thereon,  have  been 
fully  satisfied  so  far  as  such  surety  shall  have  been  able  to 
ascertain  such  damages,  the  ordinary,  upon  application  of  such 
surety,  may  make  an  order  directing  such  surety  to  give  public 
notice  to  the  creditors  of  the  decedent  and  any  persons  ag- 
grieved by  the  forfeiture  of  such  bond,  to  bring  in  their  debts. 

320rphans'  Court  Act,  sec.   145.      Comp.  Stat.,  5052,  sec.  3  and  4- 
3  Comp.   Stat.,  3867.     See  also,  4 

23 


336  Probate  Law  and  Practice. 

demands  and  claims  against  the  estate  of  the  decedent,  under 
oath,  within  three  months  from  the  date  of  such  order,  by  ad- 
vertising such  notice  for  six  weeks  successively,  once  in  each 
week,  in  one  or  more  of  the  newspapers  of  this  state,  as  may 
be  directed  in  said  order,  and  any  further  notice,  in  case  the 
ordinary  shall  judge  the  same  necessary,  and  such  notice  shall 
be  advertised  within  twenty  days  after  the  date  of  such  order. ^^ 

Presentation  of  Claims  to  Surety. 

When  any  order  to  bring  in  debts  and  claims  shall  be  made, 
in  pursuance  of  the  preceding  section,  all  claims  and  demands 
of  the  creditors  of  the  deceased,  and  of  all  persons  aggrieved 
by  the  forfeiture  of  such  bond,  shall  be  presented  in  writing, 
specifying  the  amount  claimed  and  the  particulars  of  the  claim, 
and  shall  be  verified  under  oath,  or  the  bringing  in  of  the 
same  shall  be  of  no  effect.^* 

Exceptions  to  Claims. 

The  surety  or  sureties  may  except  to  any  claim,  debt  or 
demand,  and  thereupon  the  same  shall  be  tried  in  such  manner 
as  the  ordinary  may  direct,  and  the  ordinary  may,  if  the 
same  be  not  proved  on  such  trial  to  his  satisfaction,  disallow 
and  reject  the  same.^^ 

Satisfaction  of  Judgment  against  Surety. 

After  the  expiration  of  the  time  in  such  order  limited,  the 
ordinary,  upon  proof,  to  his  satisfaction,  that  such  notice  has 
been  advertised  as  directed,  and  that  no  claims  or  demands 
have  been  presented,  or  that  all  claims  which  have  been  pre- 
sented and  allowed,  have  been  fully  paid  and  satisfied  by  such 
surety,  or  otherwise,  may  order  satisfaction  of  such  judgment 
to  he  entered,  pursuant  to  the  provisions  of  the  act  entitled 
"An  act  concerning  judgments,"  (Revision),  approved  March 
twenty-seventh,  one  thousand  eight  hundred  and  seventy-four.^^ 

330rphans'  Court  Act,  sec.  188.  ssQrphans'  Court  Act,  sec.  190. 

3  Comp.  Stat.,  3882.  3  Comp.  Stat.,  3883. 

3<0rphans'  Court  Act,  sec.  189.  ^eOrphans'  Court  Act,  sec.  191. 

3  Comp.   Stat.,  3883.  3  Comp.  Stat.,  3883. 


CHAPTER  XIX 
ASSETS. 

In  General. 

All  of  the  goods  and  chattels,  rights  and  credits,  moneys 
and  effects,  actions  and  commodities,  which  were  of  the  dece- 
dent, all  rights  of  action  or  possession  that  are  his  own  at  the 
"time  of  his  death,  pass  upon  his  death  to  his  executor  or  ad- 
ministrator. The  next  of  kin  of  decedent  do  not  become  their 
owners,  but  acquire  only  that  qualified  equitable  right  to  dis- 
tribution of  what  shall  remain  after  payment  of  the  just  debts, 
funeral  charges  and  expenses  of  settling  his  estate  which  is  con- 
ferred upon  them  by  the  will  or  statute  of  distributions,  as 
the  case  may  be. 

It  is  a  general  rule  of  law  and  equity  that  an  executor  has 
absolute  power  of  disposal  over  the  whole  of  his  testator's 
personal  effects,  including  such  things  as  are  given  by  way  of 
specific  legacies.  It  is  his  duty  to  get  in  the  whole  of  his  tes- 
tator's personal  estate,  as  well  those  things  which  are  specifi- 
cally given  as  other  parts  of  the  estate ;  but  he  should  preserve 
and  keep  such  things  as  are  specifically  given  so  that  they  may 
be  delivered  up  to  the  legatees  in  kind,  unless  their  conversion 
into  money  for  the  payment  of  his  testator's  debts  is  absolutely 
necessary.  The  power  of  an  executor  to  dispose  of  things 
given  by  way  of  specific  legacies  was  at  one  time  questioned ; 
but  modern  adjudications  have  placed  it  beyond  dispute. 

So  rigorous  is  the  rule  requiring  an  executor  to  take  posses- 
sion of  the  whole  of  his  testator's  personal  property  and  make 
an  account  of  it,  so  that  it  may  be  applied  in  due  course  of 
administration,  that  in  a  case  where  a  testator  had  directed 
that  certain  sealed  parcels  should  be  delivered  by  his  executor 
unopened  to  the  persons  to  whom  they  were  directed,  it  was 
held  that  the  executor  could  not  safely  obey  the  direction  of  his 
testator,  for  if  he  sliould  be  called  to  make  an  inventory,  he 

337 


338  Probate  Law  and  Practice. 

could  not  make  it  on  oath,  without  knowing  what  the  parcels 
contained ;  and  if  he  should  make  delivery  of  the  parcels, 
he  would  hy  the  delivery  assent  to  them  as  legacies,  and  then 
if  there  should  not  be  sufBcient  assets  to  pay  debts,  he  would 
be  guilty  of  a  devastavit.^  So  where  at  the  time  of  testator's 
death  securities  belonging  to  him,  which  were  given  by  the 
will  to  his  wife,  were  in  a  compartment  of  a  trust  company's 
vault,  the  compartment  having  been  taken  in  the  name  of 
testator  and  wife,  and  she  refused  to  give  the  executor  the 
key,  and  the  trust  company  refused  to  surrender  the  securities, 
it  was  held  that  a  bill  by  the  executor  for  discovery  and  re-, 
lief  would  lie.- 

PERSONAL  ASSETS. 

Choses  in  Action. 

All  choses  in  action  belonging  to  a  testator  at  the  time  of 
his  death  pass  on  his  death  to  his  executor,  even  though  they 
are  specifically  bequeathed  f  and  a  promissory  note  taken 
in  the  name  of  the  intestate  should  not  be  omitted  from  the 
inventory  upon  the  claim  of  the  wife  that  it  is  hers,  being 
in  payment  of  a  sale  or  a  gift  to  her  from  her  husband;* 
but  the  notes  of  a  debtor,  who  is  non-resident  and  insolvent, 
may  be  omitted  from  both  the  inventory  and  account  with  per- 
fect propriety,  and  no  inference  unfavorable  to  the  executor 
should  be  drawn  from  such  omission.'  The  proceeds  of  a 
bond  of  which  decedent  was  a  joint  obligee  belong  to  the  sur- 
viving co-obligees  and  the  personal  representatives  of  the  de- 
ceased.*' 

^Hayes  v.  Hayes,  45  N.  J.  Eq.,  J.   Eq.,   461.     Affirmed,   47    X.   J. 

461.     Affirmed,  47  N.  J.  Eq.,  567.  Eq.,  567. 

Buchanan  v.  Buchanan,  75   N.  J.  ^Dii^g  y.  Stevenson,  17  N.  J.  Eq.. 

Eq..   274.  407. 

^Schrafft   V.   Woltcrs,   61   N.  J.  ^Black  v.  Whitall,  9  N.  J.  Eq  , 

Eq..  467.  572. 

^Miller  v.  Henderson,   10  N.  J.  ^Stevens  v.  Bowers,  16  N.  J.  I.., 

Eq..  320.     Hayes  v.  Hayes,  45  N.  16. 


Assets.  339 

Legacies  and  Distributive  Shares. 

The  vested  right  of  a  legatee  is,  upon  his  death,  transmitted 
to  his  personal  representatives.  The  next  of  kin  are  not  the 
personal  representatives,  and  cannot,  as  such,  come  into  court 
representing  the  ancestor;"  but  where  the  legacy  is  to  "A," 
or  his  "representatives,"  those  will  take  who  have  the  right  to 
represent  the  primary  legatee  as  next  of  kin  under  the  statute 
of  distributions,  and  not  his  executor  or  administrator.^ 

Debts  Due  from  Legatees  or  Devisees. 

A  legatee  indebted  to  his  testator  must  pay  his  debt  or  his 
legacy  may  be  applied  in  discharge  of  the  same  f  and  an  as- 
signee of  a  legatee  or  distributee  takes  the  legacy  or  dis- 
tributive share  subject  to  the  equity  which  existed  against  it  in 
the  hands  of  the  assignor. ^°  But  a  debt  owing  by  a  devisee 
to  his  testator  is  not  a  charge  upon  the  lands  devised  to  him 
by  the  latter,  in  the  absence  of  language  in  the  will  making 
such  debt  a  charge;"  and  the  principle  of  equitable  retainer 
does  not  apply  to  a  fund  arising  from  the  sale  of  real  estate 
which  descended  to  the  debtor  as  one  of  the  heirs  at  law  of 
the  testator,  which  realty  has  been  converted  into  personalty 
by  accident,  or  because  the  will  could  not  be  carried  into  effect 
in  any  other  way  than  by  the  sale  of  the  land.^- 

W'here  an  executor  holds  the  notes  of"  his  testator's  legatee, 
although  at  law  they  cannot  be  set-off  against  interest  due  such 
legatee,  yet  a  court  of  equity  will  allow  them  to  be  used  in 
payment  of  the  interest  during  his  life;  but  where  a  legacy  is 
left  to  A  for  life,  with  remainder  over  to  his  children,  a  debt 
due  from  A  to  the  testator  cannot  be  set-off  against  the  prin- 

'Shaver  v.  Shaver,  i  N.  J.  Eq.,  Brokaw  v.  Hudson,  2y  N.  J.  Eq., 

437.    Cohen  v.  Moss,  29  Atl.  Rep.,  135.     Denise  v.   Denise,  37  N.  J. 

194-  Eq.,    163. 

*Brokaw    v.    Hudson,   27    N.   J.  '°Smith  v.  Kearney,  2  Barb.  Cli.. 

Eq.,  135.     Huston  v.  Reed,  32  N.  533. 

J.  Eq.,   591-597-  "La   Foy  v.   La   Foy,  43   N.  J. 

"Snyder  v.  Warbasse,   11   N.  J.  Eq.,  206. 

Eq.,  463.     Voorhees  v.  Voorhees,  i-Smith  v.  Kearney,  2  Barb.  Ch., 

18   N.   J.   Eq.,   223.     Youmans   v.  533. 
Youmans,     26     N.     J.     Eq.,     149. 


340  Probatu  Law  and  Practice. 

cipal  of  the  trust  fund,  but  the  whole  must  be  invested  for  the 
benefit  of  the  tenants  in  remainder.^^ 

When  Legacy  to  Creditor  Will  be  Construed  to  be  in  Pay- 
ment. 

A  legacy  or  devise  given  by  a  debtor  to  his  creditor  will,  in 
the  absence  of  any  statement  to  that  eflfect  in  the  will,  be  pre- 
sumed to  have  been  given  in  payment  of  the  debt,  if  the  legacy 
is  as  great  as  or  greater  than  the  debt ;  but  no  such  presumption 
will  be  made  when  the  debt  is  contracted  subsequent  to  the  date 
of  the  will,  or  where  the  testator  by  his  will  directs  that  his 
debts  and  legacies  shall  be  paid.^*  This  rule  is,  however,  re- 
garded with  great  disfavor,  and  courts  almost  universally  man- 
ifest a  strong  disinclination  to  enforce  it ;  consequently,  very 
slight  circumstances  .are  considered  sufficient  to  take  a  case  out 
of  its  operation.  Thus,  where  a  testator  directs  that  his  debts 
shall  be  paid,  or  charges  them  upon  his  real  estate,  the  inference 
is  that  a  bequest  to  a  creditor  is  meant  to  be,  as  it  appears,  a 
gift,  and  that  it  is  not  to  operate  as  payment.  The  rule  rests 
entirely  upon  presumption.  It  attributes  to  a  testator  who 
gives  a  legacy  to  his  creditors  an  intention  which  he  has  never 
expressed  or  intimated,  and  so  cannot  be  applied  to  a  case 
where  there  is  nothing  to  sustain  the  presumption  on  which 
the  rule  rests. ^^  So  the  gift  of  goods  and  chattels  of  uncer- 
tain value  will  not  be  regarded  as  having  been  intended  to 
satisfy  the  debt,  nor  will  a  devise  of  land  be  presumed  to  have 
been  made  in  discharge  of  a  hond  secured  by  a  mortgage  on 
the  lands  devised.^''  So  where  a  testator  gave  one  thousand 
dollars  absolutely,  and  the  interest  on  eight  thousand  dollars 
during  her  lifetime,  to  a  housekeeper,  who  had  occupied  that 
position  in  his  family  for  twenty  years,  and  she  presented  to 

^^Voorhees  v.  Voorhees,   i8  N.  Affirmed,  45  N.  J.  Eq.,  367.  Deich- 

J.    Eq.,    223,    and    see    "Suits    for  man  v.  Arndt,  49  N.  J.  Eq.,   106. 

Legacies — Defenses,"  p.  723-  infra.  Adams   v.   Adams,   55   N.  J.   Eq., 

i^Van  Riper  v.  Van  Riper,  2  N.  42. 

J.  Eq.,  I.     Petrie  v.  Voorhees,  18  i^Heisler  v.  Sharp,  44  N.  J.  Eq., 

N.  J.  Eq.,  285.     Rogers  v.  Hand,  167.     Affirmed,  45  N.  J.  Eq.,  367. 

39    N.    J.    Eq.,    270.      Rusting    v.  isDeichman  v.  Arndt,  49  N.  J. 

Rusting.    42    N.    J.    Eq.,    594-601.  Eq.,  106. 
Heisler  v.  Sharp.  44  N.  J.  Eq..  167. 


Assets.  341 

the  executors  a  claim  for  three  thousand  dollars  and  interest, 
for  services  to  the  testator,  it  was  held  that  the  testamentary 
gifts  to  her  were  not  in  satisfaction  of  her  claim  for  services.^' 

Advancements. 

An  advancement  forms  no  part  of  the  estate  of  decedent ;  it 
cannot  be  resorted  to  for  the  payment  of  debts,  nor  can  the 
child  advanced  be  compelled  to  refund  for  any  purpose  con- 
nected with  the  settlement  of  the  estate.  It  follows,  there- 
fore,  that   an   advancement    should   not   be   inventoried.^* 

Debts  Due  from  Executor. 

The  statute  provides  that  the  appointment  of  a  debtor  as 
executor  or  executrix  shall  not,  unless  otherwise  expressed  in 
the  said  will,  be  construed  so  as  to  discharge  such  executor  or 
executrix  from  the  payment  of  the  debt,  but  the  said  debt  shall 
be  considered  assets  in  his  or  her  hands,  to  be  accounted  for  in 
the  same  manner  as  any  other  part  of  the  personal  estate.^^ 

A  debt  due  by  an  executor  to  the  testator  is  so  far  assets  as 
to  come  within  the  jurisdiction  of  the  orphans'  court. -'^  So 
where  an  executor  or  administrator  owes  the  estate,  and  is 
solvent  and  able  to  pay,  the  amount  of  the  debt  wall  be  con- 
sidered as  so  much  money  in  his  hands;  but  if  it  is  shown  that 
he  has  been  and  is  unable  to  pay,  and  has  not  paid,  he  w-ill  not 
be  charged  with  the  debt  as  cash.  The  proof  of  his  inability 
to  pay  must,  however,  be  complete  and  satisfactory."^  But 
where  an  executor  indebted  to  the  estate  shows  that  he  has 
not  been  able  to  pay  the  principal,  but  does  not  show  that  he 
is  unable  to  pay  the  interest,  he  will  be  charged  with  the  in- 
terest ;--  and  where  it  is  shown  that  a  debt  existed  from  ac- 
countant to  deceased,  the  burden  is  upon  the  accountant  to 

"Rogers  v.  Hand,  39  N.  J.  Eq.,  2oWood  v.  Tallman.  i  N.  J.  L.. 

270.  177-     Davison   v.   Davison,    17  N. 

isBlack  V.  Whitall,  9  N.  J.  Eq.,  J.   L..    169-179. 

572-586.     Metcalfe  v.  Colles,  43  N.  ^'Ordinary  v.  Kershaw.  14  N.  J. 

J.  Eq.,  148-152.     As  to  what  con-  Eq.,  527.    Terhiine  v.  Oldis.  44  N. 

stitutes  an  advancement,  see  "Dis-  J.  Eq.,   146. 

tribution — Advancements  and  Set-  22Tgj.j,y,,g  y  Oldis.  44  N.  J.  Eq., 

tlements,"  p.  690-  infra.  146. 

^^2  Comp.  Stat.,  p.  2261,  sec.  8. 


342  Probate  Law  and  Practice. 

prove  that  the  debt  lias  been  paid,  even  where  the  bill  or  note 
evidencing  such  debt  cannot  be  found  among  the  papers  of  the 
deceased.-" 

An  executor  who  was  liable  to  the  testator  for  rent  of  land 
at  the  time  of  the  latter 's  death  cannot,  upon  the  settlement  of 
his  accounts,  claim  that  the  liability  for  rent  accrued  six  years 
before  the  proceeding  to  compel  the  account ;  upon  the  accept- 
ance of  the  executorship,  it  was  his  duty  to  collect  all  debts  due 
the  estate,  as  well  from  himself  as  from  others,  and  his  posi- 
tion in  relation  thereto  is  that  of  a  trustee.-* 

Proceeds  of  Insurance  Policies. 

The  proceeds  of  a  life  insurance  policy  taken  out  by  decedent 
upon  his  own  life,  and  expressed  to  be  payable  to  assured  or 
to  his  estate,  belong  to  his  estate  as  assets.  Where,  however, 
the  policy  is  payable  to  another,  the  proceeds  are  not  assets, 
but  are  payable  directly  to  the  beneficiary.-^  In  the  latter  case, 
the  interest  of  the  beneficiary  in  the  policy  is  a  chose  in  action ; 
and  if  the  beneficiary  dies  before  the  assured,  the  executor  or 
administrator  of  the  deceased  beneficiary  will  be  entitled  to  the 
proceeds  of  the  policy  upon  the  death  of  the  assured.-^ 

Increase  and  Accretions. 

Increase  among  stock,  wool  clipped,  and  the  net  proceeds  of 
the  sale  of  produce  from  a  farm  after  the  death  of  the  de- 
cedent, go  to  the  executor.-^ 

Crops  and   Products   of  Land. 

Growing  crops  on  lands  devised  go  to  the  devisee  f^  where, 
however,  the  land  is  not  devised,  they  go  to  the  executor.-^  But 
a  tenant  of  farm  land,  whether  for  a  term  certain  or  uncertain, 

'sClark  v.   Hornbeck,    17  N.  J.  Eq.,  594.     In  re  Grattan's  Estate, 

Eq.,  430.    McGill  V.  O'Connell,  33  78  N.  J.  Eq.,  225. 

N.  J.  Eq.,  256.  27Merchant's  Case,  39  N.  J.  Eq., 

-*Haines  v.  Haines,  15  Atl.  Rep.,  506.     Affirmed,  41  N.  J.  Eq.,  349. 

839.  28Budd  V.  Hiler,  27  N.  J.  L.,  43- 

^sSchouler    on    Executors,    sec.  ^oWestbrook  v.  Eager,  16  N.  J. 

202,  211.  L.,  81-85.    Budd  V.  Hiler,  27  N.  J 

26Brown   v.   Murray,    54   N.   J.  L.,  43. 


Assets.  343 

is  entitled  to  the  grain  which  he  has  sown,  but  which  was  not 
ripe  when  his  term  expired.^"  This  rule  does  not,  however, 
apply  to  spring  crops,  where  the  tenancy  expires  at  the  usual 
termination  of  the  agricultural  year.'''  The  proceeds- of  the 
sale  of  building  stone  taken  by  executors  from  quarries  on 
testator's  land,  opened  and  worked  by  him,  are  part  of  the 
income  from  the  lands,  and  are  subject  to  the  same  rules  as 
to  ownership  as  other  rents  and  profits  of  lands. ^- 

A  widow  whose  dower  has  not  been  assigned,  and  who  re- 
mains on  the  homestead  farm  of  her  husband,  is  entitled  to 
crops  grown  thereon  after  her  husband's  death."" 

Mortgages. 

Before  foreclosure,  a  mortgage  is  considered,  in  equity,  as 
a  chattel  interest,  and  goes  to  the  executor  or  administrator 
of  the  mortgagee.^"* 

Leases  of  Decedent. 

The  residue  of  the  term  of  an  unexpired  lease  for  years 
is  a  chattel,  and  goes  to  the  executor  or  administrator,  and 
not  to  the  heirs,  as  do  also  a  privilege  to  renew  and  an  un- 
exercised  option  to  purchase  contained  in  the  lease. ^^ 

30Van  Doren  v.  Everitt,  5  N.  J.  J.  Eq..  14.    Smith  v.  Trenton  Del- 

L.,  539.     Debow  V.  Colfax,  10  N.  aware  Falls  Co.,  4  N.  J.  Eq..  505. 

J.  L..  128.    Howell  V.  Schenck,  24  Woodruff  v.  Mutschler.  34  N.  J. 

N.  J.  L.,  89.    Corle  v.  Monkhouse,  Eq.,  33,  and  see  Reporter's   Note 

47  N.  J.  Eq.,  73.    Reeves  v.  Han-  to  Woodruff  v.  Mutschler.  34  N. 

nan,  65  N.  J.  L.,  249.  J.  Eq..  33-34.    Grant  v.  Chambers. 

31  Howell   V.   Schenck,  24  N.  J.  7  N.  J.  Eq.,  223.     Miller  v.  Hen- 

Iv.  89.  derson,  10  N.  J.  Eq.,  320.     Mont- 

32Mulford  V.  Mulford.  42  N.  J.  gomery  vi  Bruere,  4  N.  J.  L..  260. 

Eq.,   68.     Gaines    v.   Green    Pond  Osborne  v.  Tunis,  25  N.  J.  L.,  633. 

Iron  Mining  Co..  33  N.  J.  Eq.,  603.  As    to    disposition    of    mortgaged 

s^Merchant's  Case,  39  N.  J.  Eq.,  lands    purchased    on    foreclosure. 

506.     Affirmed.  41  N.  J.  Eq.,  349.  see  "Lands  Purchased  by  Exccu- 

s^Terhune  v.  Bray,  16  N.  J.  L.,  tor,  &c.,  at  Foreclosure   Sale,"   p. 

53-    Osborne  v.  Tunis,  25  N.  J.  L.,  424.  infra. 

633.    Greenwood  v.  Law.  55  N.  J.  36\fcCormick  v.  Stephany,  57  N. 

L.,  168-176.     Copper  V.  Wells,  i  N.  J.  Eq.,  257. 
J.  Eq.,   10.     Kinna  v.  Smith,  3  N. 


344  Probate  Law  and  Practice. 

Separate  Property  of  Wife. 

It  is  provided  by  statute  that  the  widow  of  a  decedent  shall 
be  entitled  to  demand  and  receive  from  his  executors  or  ad- 
ministrators all  such  goods  and  chattels,  choses  in  action,  or 
other  personal  property  which  at  or  immediately  before  the 
coverture  between  the  deceased  and  his  said  widow  belonged 
to  her,  or  which,  during  coverture,  came  to  her  by  bequest,  gift 
or  inheritance,  and  which  at  the  time  of  the  death  of  the  de- 
ceased remained  in  his  possession ;  provided,  that  this  act 
should  not  be  construed  to  affect  the  claims  of  creditors  whose 
debts  had  been  contracted  previous  to  the  time  the  act  took 
effect.^*'  So  where  a  sum  stood  to  the  credit  of  testator's 
widow  on  the  books  of  a  firm  of  which  testator  was  a  member, 
such  sum  was  held  to  be  no  part  of  testator's  estate;''  but  a 
verbal  direction  by  testator  during  his  last  illness  that  after  his 
death  his  widow  should  have  certain  personal  property,  then 
unfinished  and  not  paid  for,  will  not  authorize  the  executor 
after  the  testator's  death  to  deliver  the  property  to  the  widow. 
If  he  makes  such  delivery,  he  will  be  charged  with  the  value 
thereof.'^ 

Wife's  Paraphernalia. 

At  common  law,  the  husband  is  bound  to  maintain  the  wife, 
and  to  provide  her  with  suitable  clothing  appropriate  to  their 
degree  and  his  own  circumstances  and  social  position.  As  a 
corollary  to  this  obligation,  the  common  law  recognized  that 
articles  of  clothing  and  personal  ornaments  appropriate  for 
the  wife,  which  are  purchased  with  the  husband's  money,  or 
upon  his  credit,  are  his  property,  notwithstanding  the  fact  that 
they  are  selected  and  purchased  by  the  wife,  or  are  intended 
for  her  personal  and  exclusive  use.  The  wife's  clothing  and 
ornaments  are  called  her  paraphernalia ;  and  the  common  law 
rule,  that  the  ownership  thereof  during  the  life  of  the  hus- 
band is  in  him,  was  not  abrogated  in  this  state  by  the  Mar- 

3«2   Comp.    Stat.,   2266,   sec.   24.  s^In  re  Flaacke's  Estate,  64  Atl 

See  also,  3  Comp.  Stat.,  3223,  sec.      Rep..  1020. 

I,  et  seq.  ssRoberts  v.  Wills,  20  N.  J.  I... 

591. 


Assets.  345 

ried  Woman's  Act,  except  in  cases  where  the  wife  herself  pur- 
chased the  paraphernaha  witli  her  own  separate  money  or 
earnings.^^ 

The  common  law  rule,  as  above  stated,  remained  in  full 
force  in  this  state  until  the  enactment  of  the  statute  of  1915,*'^ 
whereby  it  is  provided  that  the  paraphernalia  of  a  married 
woman,  being  the  suitable  ornaments  and  wearing  apparel  of  a 
married  woman  which  have  come  to  her  through  her  husband 
during  coverture,  now  possessed  by  her  and  which  she  may 
hereafter  obtain,  shall  be  her  sole  and  separate  property  as 
though  she  were  a  single  woman. 

Damages  Recovered  under  Death  Act. 

The  fund  recovered  under  the  Death  Act,  providing  for 
the  recovery  of  damages  in  cases  where  the  death  of  a  person 
is  caused  by  the  wrongful  act  of  another,  is  no  part  of  the 
estate  of  the  deceased ;  and  the  administrator  receiving  it, 
whether  the  husband  of  the  deceased  or  a  stranger,  is  a  mere 
trustee  for  its  distribution  to  the  next  of  kin  in  the  method 
pointed  out  by  the  statute.*^ 

Pensions. 

A  pension  is  not  a  part  of  the  assets  of  the  pensioner's 
estate;  and  if  it  is  paid  to  his  executor  or  administrator,  the 
latter  only  holds  it  in  trust  for  the  widow  and  children.*- 

Joint  Bank  Accounts. 

The  general  rule  is  well  settled  that  where  a  deposited  fund 
is  the  property  of  A,  the  mere  issuing  by  a  bank,  at  the  di- 
rection of  A,  of  a  pass  book  to  A  or  B,  either  to  draw,  or  in  a 
similar  manner,  will  not  constitute  a  present  gift  to  B  of  the 
fund  evidenced  by  the  bank  book,  and  that  the  balance  remain- 
ing on  deposit  at  A's  death  is  part  of  the  assets  of  his  estate. 
The  question  whether  the  intention  of  the  depositor  is  to  make 
a  gift  of  the  fund,  or  merely  to  make  B  his  agent  for  con- 

39Farrow   v.   Farrow,   72   N.   J.  ■''Gottlieli    v.    N.    Jersey    Street 

Eq.,  421.  Railway  Co.,  72  N.  J.  L.,  480. 

♦op.  L.  1915,  p.  27.  ■•-In  re  Van  Horn.  5  N.  J.  L.  J., 

372. 


346  Probate  Law  and  Practice. 

venience  in  drawing  the  money,  is  to  be  determined  by  the  cir- 
cumstances of  the  case,  and  the  conduct  and  declarations  of 
the  depositor.*^  In  order  to  legaHze  such  a  gift,  there  must 
be  not  only  donative  intention,  but  also  in  conjunction  there- 
with a  complete  stripping  of  the  donor  of  all  dominion  or 
control  over  the  thing  given.  This  is  the  crucial  test.**  So 
where  an  account  is  opened  and  money  deposited  by  a  father 
in  the  joint  names  of  himself  and  his  child  in  a  savings  bank 
whose  by-laws  provide  for  the  issuing  of  a  pass  book  to  each 
depositor  and  require  its  production  when  the  money  is  drawn, 
if  it  clearly  appears  that  such  deposit  is  merely  for  the  con- 
venience of  the  parent  in  drawing  money,  and  not  with  the 
intention  of  making  a  gift  to  the  child  in  case  of  its  surviving 
the  parent,  a  subsequent  change  of  intention  and  a  determina- 
tion to  make  a  gift  to  the  child  must  be  proven  by  clear  and 
satisfactory  evidence  ;  merely  permitting  the  account  to  remain 
in  the  joint  names  and  loose  declarations  indicating  a  gift,  are 
not  sufftcient.*^  So  where  testatrix  a  short  time  before  her 
death  was  in  possession  of  a  bank  book  showing  a  balance  due 
to  her,  and  had  her  daughter's  name  entered  therein,  so  that 
the  account  appeared  to  be  payable  either  to  her  or  the 
daughter,  but  the  book  remained  in  testatrix's  possession  until 
the  day  of  her  death,  when  she  asked  her  daughter  for  the 
satchel  containing  it,  and  after  taking  it  handed  it  back  to  the 
daughter,  saying  that  the  bank  book  was  in  there,  and  the 
daughter  put  it  down  again  and  did  not  take  it  out  of  the 
satchel  until  a   week   later,  it   was   held   that   the   transaction 

"Schick  V.  Grote,  42  N.  J.  Eq.,  N.  J.  Eq.,  685.    Nicklas  v.  Parker, 

352.     Skillman  v.  Wiegand,  54  N.  71  N.  J.  Eq.,  ^^^.    Taylor  v.  Cori- 

J.  Eq.,  198.     Taylor  v.  Coriell,  66  ell,  66   N.   J.   Eq.,   262.     Cook  v. 

N.   J.   Eq.,   262.     Parker   v.    Cop-  Lum,  55  N.  J.  L.,  2,Tl-    Gordon  v. 

land.  70  N.  J.  Eq.,  685.    Schippers  Toler,  83  N.  J.  Eq.,  25.     McCul- 

V.    Kemphes,    ^2    N.    J.    Eq.,   948.  lough  v.  Forrest,  92  Atl.  Rep.,  595. 
Crane   v.   Brewer,   73   N.   J.   Eq.,  ^sskillman  v.  Wiegand,  54  N.  J. 

558.     Gordon  v.  Toler,  83   N.  J.  Eq.,  198.     Schick  v.  Grote,  42  N. 

Eq.,  25.     McCullough  v.  Forrest,  J.  Eq.,  352.     Crane  v.  Brewer,  T2> 

92  Atl.  Rep.,  595.  N.  J.  Eq.,  558.    Schippers  v.  Kem- 

** Stevenson    v.    Earl,    65    N.   J.  phes,  72  N.  J.  Eq.,  948. 
Eq.,  721.     Parker   v.   Copland,   70 


Assets.  347 

was  not  a  gift  causa  mortis,  and  that  the  deposit  was  a  part  of 
the  estate  of  the  testatrix.^'' 

Testamentary  Disposition  of  Bank  Deposit. 

The  general  rule  is  laid  down  that  where  a  depositor  opens 
an  account  in  a  savings  bank  in  the  name  of  himself  and  an- 
other, the  survivor  to  take,  that  the  disposition  thus  made  of 
the  moneys  remaining  to  the  depositor's  credit  at  his  death  is 
testamentary  in  character,  and  invalid  because  not  made  in 
the  manner  prescribed  by  the  statute  of  wills. ^'  In  the  case  of 
Stevenson  v.  Barl*^  a  deposit  was  made  in  the  name  of  the 
depositor,  with  direction  to  pay  to  his  wife,  in  the  event  of 
his  death,  all  deposits  which  should  then  be  standing  to  his 
credit.  In  delivering  the  opinion  of  the  Court  of  Errors  and 
Appeals,  Chief  Justice  Gummere  used  this  language:  "The  ex- 
press intention  of  the  deceased  was  only  to  bestow  upon  his 
wife  so  much  of  his  deposit  as  should  remain  undrawn  by  him 
at  the  time  of  his  death.  Such  a  gift,  it  seems  to  us,  is  purely 
testamentary  in  its  character.  If  it  is  not,  then  it  is  a  per- 
fectly easy  thing  for  a  person  to  retain  the  absolute  control  and 
dominion  over  his  money  and  personal  securities  during  his 
life  and  transfer  that  dominion  to  another  at  his  death,  with 
total  disregard  of  the  requirements  contained  in  the  statute 
of  wills,  by  the  simple  device  of  depositing  such  moneys  and 
securities  under  an  agreement  with  the  depositary  that  he  shall 
have  the  right  to  use  them,  or  deal  with  them  as  he  pleases  dur- 
ing his  life,  and  that  at  his  death  so  much  of  them  as  may  re- 
main shall  be  delivered  to  such  person  as  is  named  in  the 
agreement,  who  shall  then  become  the  owner  thereof,  and  then 
deliver  the  agreement  to  the  beneficiary,  with  a  statement  of 
the  same  purport  as  that  made  by  the  deceased  to  his  wife 
when  he  gave  the  pass  book  to  her.  To  hold  that  such  a  meth- 
od of  disposing  of  property  by  the  owner  at  his  death  is  valid 

*Hn  re  Beliring's  Case,  80  N.  J.  N.    J.    Eq.,    635-640.      Gordon    v. 

Eq.,  165.  Toler,  83  N.  J.  Eq.,  25. 

<7Stevenson    v.    Earl,    65    N.    J.  ""^as  N.  J.  Eq.,  721. 

Eq.,  721.     ScliHchcr  v.  Keeler,  67 


348  Probate  Law  and  Practice. 

would  be  to  practically  repeal  the  statute  of  wills  in  its  opera- 
tion upon  personal  property,  so  far  as  its  mandatory  provisions 
are  concerned." 

So  where  a  depositor  in  a  bank  executed,  in  the  presence 
of  witnesses,  an  instrument  reciting,  "this  is  to  certify  that  in 
case  of  my  death  any  money  in  the  bank  at  the  time  of  my  de- 
cease standing  in  my  name  shall  be  the  sole  property"  of  a  per- 
son named,  it  was  held  to  be  a  testamentary  disposition  of  the 
deposit  remaining  at  the  testator's  death,  and  insufficient  to  en- 
title the  person  named  to  the  money  remaining.*^  But  the  doc- 
trine that  an  attempt  by  a  grantor  to  make  disposition  of  his 
estate  after  his  death,  without  complying  with  the  requirements 
of  the  statute  of  wills,  is  void,  has  no  application  to  a  case 
where  the  grantor  has  by  his  conveyance  divested  himself  of 
his  property  in  his  lifetime ;  it  applies  only  to  the  disposition 
in  his  lifetime  of  property  of  which  he  retains  the  title  and 
use,  but  which  he  intends,  at  his  death,  shall  pass  to  the  donee. ^^ 

In  the  case  of  Hoboken  Bank,  &c.  v.  Schzvoon,^^  Vice-Chan- 
cellor  Pitney  sought  to  uphold  a  deposit  in  joint  names,  sur- 
vivor to  take,  on  two  theories;  first,  that  the  joint  estate  or 
interest  is  thereby  created  with  an  express  right  of  survivorship, 
which  operates  naturally  and  legally  upon  whatever  of  the 
fund  remains  unused  at  the  death  of  the  donor,  and  secondly, 
on  the  ground  of  a  complete  trust.  This  case,  however,  was 
decided  before  the  case  of  Stcz'oison  v.  Barl.^~ 

Deposits  in  Trust. 

A  deposit  in  a  bank  in  the  name  of  a  decedent  as  "trustee." 
"surrogate,"  "county  clerk,"  or  the  like,  may  be  drawn  by  the 
personal  representative  of  such  decedent.  The  appendage  to 
the  name  of  the  depositor  is  held  to, be  merely  descriptio  per- 
sonae,  and  does  not  imply  that  the  money  that  he  deposited  was 
held  in  trust ;  and  even  though  the  addendum  implied  a  trust 
it  would  not  defeat  the  right  of  the  personal  representative  of 
the  depositor  to  withdraw  the  deposit ;   the  trust  which  inhered 

*9White    V.    Grossman,    64    Atl.  5152  N.  J.  Eq.,  503. 

Rep.,    168.  5265  N    J    £q^  721 

soRobeson  v.  Duncan,  74  N.  J. 
Eq.,  745. 


Assets.  349 

in  the  depositor,  passes  upon  his  death  to  his  personal  repre- 
sentative, who  would  be  bound  to  administer  all  the  assets  of 
the  deceased  as  trustee  of  whatever  kind,  and  to  administer  the 
trust  with  which  those  assets  are  charged.^^  So  where  a  dece- 
dent has  during  his  lifetime  made  a  deposit  in  a  savings  bank- 
in  his  own  name  in  trust  for  another  who  was  a  mere  friend, 
over  which  deposit  decedent  exercises  complete  control  during 
his  lifetime,  this  is  insufficient  to  establish  a  gift  of  the  de- 
posit inter  z'ivos,  or  to  create  a  trust  entitling  the  alleged  bene- 
ficiary to  the  deposit  as  against  intestate's  administrator.  The 
right  of  the  person  named  as  cestui  que  trust  to  have  the  fund 
on  deposit  must  rest  upon  one  of  two  theories  ;  either  that  it 
was  a  gift  ijiter  viz'os  by  the  depositor  to  him,  or  that  it  was  a 
valid  trust  enforceable  by  him.  In  either  event,  the  intention 
must  be  clearly  proven,  and  such  intention  must  be  shown  to 
have  been  carried  out  by  the  donor  or  settlor  f*  and  so  where 
the  trust  was  for  the  benefit  of  a  nephew  of  the  depositor.*^ 

Foreign  Assets. 

Where  letters  of  administration  are  granted  in  ditifereni 
jurisdictions,  the  administrator  in  this  state  is  only  accountable 
for  the  property  within  this  state,  which  alone  must  be  included 
in  his  inventory. °° 

Proceedings  to  Obtain  Possession  of  Foreign  Assets. 

Where  administration  has  been  granted  in  the  place  of  the 
domicile  of  the  intestate,  and  ancillary  administration  has  been 
granted  elsewhere  for  the  purpose  of  collecting  debts,  if  the 
fund  in  the  hands  of  the  foreign  administrator  is  needed  for 
the  purpose  of  due  administration  in  the  place  of  the  domicile, 
the  mode  of  reaching  it  would  be  to  require  its  transmission  or 
distribution  after  all  claims  against  the  foreign  administration 
have  been  ascertained  and  settled.^' 

53Scudder    v.    Trenton    Savings  s^Banta  v.  Moore,  15  N.  J.  Eq., 

Fund  Society,  58  N.  J.  Eq.,  154.  97.     Normand  v.  Grognard,  17  N. 

s^Nicklas    v.    Parker,    69    N.   J.  J.  Eq.,  425. 
Eq.,  743.     Affirmed,  71  N.  J.  Eq.,  ^^Normand  v.  Grognard,   17  N. 

777-  J-  Eq.,  425- 

ssSmith  V.  Speer,  34  N.  J.  Eq., 
336. 


350.  Probate  Law  and  Practice. 

REAL    PROPERTY    AND    INTERESTS    THEREIN. 

In  General. 

Real  property,  unlike  personal,  at  the  death  of  its  owner 
vests  in  his  heirs  at  law  or  devisees.  It  is  not  in  a  primary- 
sense  assets  for  the  payment  of  debts,  and  the  executor  or  ad- 
ministrator has  no  inherent  power  over  it.  The  statute,  how- 
ever, permits  the  lands  of  a  decedent,  when  necessary,  to  be 
sold  to  pay  his  debts  under  order  of  the  orphans'  court  f^  and 
when  so  sold,  the  proceeds  of  such  sale  received  by  the  executor 
or  administrator  will  be  considered  assets.^® 

When  Will  Directs  Lands  to  be  Sold. 

When  a  will  directs  land  to  be  sold  absolutely  and  positively, 
without  any  time  fixed  for  the  sale,  it  is  considered  as  con- 
verted into  money  from  the  death  of  the  testator ;  but  for  this 
the  direction  must  be  imperative. ^"^  If  it  is  optional  with  the 
executor  whether  or  not  to  sell,  or  if  he  has  only  a  naked  au- 
thority to  sell,  without  any  direction,  then  the  land  descends 
to  the  heirs  and  retains  its  character  as  realty  until  it  is  ac- 
tually sold  f^  nor  will  a  fraudulent  sale  by  executors  to  one 
of  themselves  operate  as  a  conversion.®- 

''*See  "Sale  of  Lands  for  Pay-  ^iSnowhill  v.  Snowhill,  2^  N.  J. 

ment  of  Debts,"  p.  470,  infra.  L.,  447.  "Probasco  v.  Creveling,  25 

s^Haines  v.  Price,  20  N.  J.  L.,  N.  J.  L..  449.     Moores  v.  Moores. 

480.  41   N.  J.  L.,  440-445.     Herbert  v. 

eoScudder  v.  Vanarsdale,  13  N.  Tuthill,  i  N.  J.  Eq..  141.  Gest  v. 
J.  Eq.,  109.  Wurts  v.  Page,  19  N.  Flock,  2  N.  J.  Eq..  108.  Fluke  v. 
J.  Eq.,  365-375.  Cook  V.  Cook,  20  Fluke,  16  N.  J.  Eq.,  478.  Cook  v. 
N.  J.  Eq.,  375.  Smith  v.  First  Cook,  20  N.  J.  Eq.,  375.  Romaine 
Church,  26  N.  J.  Eq.,  132.  Welsh  v.  Hendrickson,  24  N.  J.  Eq., 
V.  Crater,  32  N.  J.  Eq.,  177.  Af-  231.  Hill  v.  Smith,  32  N.  J.  Eq.. 
firmed,  33  N.  J.  Eq.,  362.  Dutton  473.  Baldwin  v.  Vreeland,  43  N. 
V.  Pugh,  45  N.  J.  Eq.,  426.  Af-  J.  Eq.,  446-449.  Todd  v.  Wort- 
firmed  sub  110)11  Jones  v.  Jones,  46  man,  45  N.  J.  Eq.,  723.  Morse  v. 
N.  J.  Eq.,  554.  Roy  V.  Monroe,  47  Hackensack  Savings  Bank,  47  N. 
N.  J.  Eq.,  356.  Crane  v.  Bolles,  J.  Eq.,  279.  Bonnell  v.  Bonnell, 
49  N.  J.  Eq.,  373-  47  N.  J.  Eq.,  540. 

62Romaine    v.    Hendrickson,    24 
N.  J.  Eq.,  231. 


Real  Property  as  Assets.  351 

If  the  directions  of  the  will  as  to  proceeds  require  a  sale,  it 
is  equivalent  to  a  positive  direction  to  sell,  and  the  land  is 
deemed  personal  property  from  the  death  of  the  testator  f^ 
but  where  testator's  will  provided  that  after  the  payment  of  all 
debts  the  residue  of  his  real  and  personal  estate  should  be 
gathered  into  one  general  fund  and  divided  into  six  equal 
parts,  one  of  which  he  gave  to  each  of  his  children,  it  was  held 
that  an  implied  power  of  sale  of  the  realty  was  not  given  to 
the  executors.''* 

If  a  testator  directs  lands  to  be  sold  and  converted  into 
money  to  pay  his  debts,  the  proceeds  become  a  fund  which  is 
liable  for  his  debts  f^  but  where  the  conversion  of  the  land 
into  money  is  ordered  in  the  will  for  a  specific  purpose,  such  as 
to  pay  a  legacy,  the  creditors  cannot  claim  the  money  as  per- 
sonal estate  f^  and  if  any  of  the  purposes  for  which  land  was 
directed  sold  fail,  so  that  the  money  does  not  pass  under  the 
will,  it  will  in  equity  be  considered  land,  and  given  to  the 
heir.^^ 

Where  a  will  ordered  executors  to  sell  real  estate  in  B,  and 
use  the  proceeds  to  pay  a  certain  debt,  and  devised  to  another 
any  surplus  remaining  after  the  payment  of  such  debt,  and  on  an 
application  to  the  orphans'  court  for  an  order  to  sell  lands  on 
a  deficiency  of  personal  property  to  pay  debts,  that  court  re- 
fused the  application  on  the  ground  that  the  surplus  from  the 
sale  of  the  real  property  in  B  was  personal  estate,  and  must  be 
applied  to  the  payment  of  the  debts  of  the  estate,  the  pre- 
rogative court,  in  reversing  this  decision  of  the  orphans'  court, 
held  that  the  proceeds  of  the  sale  of  the  real  estate  in  B  could 

«3Lindley  v.  O'Reilly,  50  N.  J.  e^Smalley  v.  Smalley,  54  N.  J. 

L.,  637.     Vanness  v.  Jacobus,    17  Eq.,  591,  and  see  "Implied  Power 

N.  J.  Eq.,  153.    Wurts  v.  Page,  19  .  of  Sale,"  p.  431,  infra. 

N.  J.  Eq.,  365-375.    Cook  v.  Cook,  ssWtnants  v.  Terhune,  15  N.  J. 

20  N.  J.  Eq.,  375-377.     Belcher  v.  Eq.,  185.     See  Brearley  v.  Brear- 

Belcher,  38  N.  J.  Eq..  126.    Roy  v.  ley,  9  N.  J.  Eq..  21. 

Monroe.    47    N.    J.    Eq..    356-359.  ^^winants  v.  Terhune,  15  N.  J. 

Cruikshank   v.    Parker.    51    N.    J.  Eq.,   185. 

Eq.,  21.     Reversed.  52  N.  J.  Eq..  e^Cook  v.   Cook.  20  N.  J.  Eq.. 

310.     Moore  v.  Robbins,  53  N.  J.  375-    Roy  v.  Monroe.  47  N.  J.  Eq.. 

Eq.,  137-139.    Parker  v.  Seeley,  56  356.     Moore  v.  Robbins.  53  N.  J. 

N.  J.  Eq..  no.  Eq.,    I37- 
24 


3|?  Probate  Law  and  Practice. 

Qtil-y  be  regarded  as  personalty  for  the  specific  purposes  desig- 
nated in  the  will,  and  that  an  order  should  be  made  to  sell  lands 
to  pay  the  general  debts. ^^ 

Lands  Purchased  by  Executor,  &c.,  at  Foreclosure  Sdle. 

.Where  executors  or  administrators,  purchase  lands  cov- 
ered by  a  mortgage  forming  part  of  the  assets  in  their  hands, 
upon  a  foreclosure  of  such  mortgage,  the  lands  so  conveyed 
to  them  are  assets  in  their  hands  and  may  be  sold  and  conveyed 
by  them  without  any  order  of  the  court,  and  they  shall  be  ac- 
countable for  and  pay  over  the  proceeds  of  such  sales  as  other 
estate  moneys  in  their  hands. *^'' 

Where  an  executor,  after  the  death  of  a  beneficiary,  and 
in  order  to  save  the  expense  of  a  foreclosure,  took  a  con- 
veyance of  premises  covered  by  a  mortgage  belonging  to  the 
estate,  such  lands  will  be  considered  personalty  as  to  the  de- 
ceased beneficiary,  but  where  lands  were  acquired  under  fore- 
closure, being  bought  in  to  protect  the  estate,  before  such  bene- 
ficiary's death,  they  will,  as  to  such  beneficiary,  be  treated  as 
realty ;  the  test  being  whether  the  property  was  personalty  or 
realty  ^t  the  time  of  death. '° 

Lands  Purchased  by  Trustee. 

In  case  any  trustee  has  heretofore  or  shall  hereafter  be- 
come the  purchaser  of  any  land,  tenements  or  hereditaments, 
at  a  sale  upon  the  foreclosure  of  any  mortgage  held  by  such 
trustee,  such  lands,  tenements  or  hereditaments  shall  be  assets 
of  the  trust  estate  in  his  hands,  and  may  be  sold  and  conveyed 
by  him  without  order  of  the  court,  and  he  shall  receive,  he  ac- 
countable for  and  pay  over  the  proceeds  of  such  sale  the  same 
as  the  other  assets  of  the  trust  estate  in  his  hands. ^^ 

Proceeds  of  Sale  of  Lands.  • 

«Where  there  is  a  conversion  of  realty  by  any  court  of  com- 
petent jurisdiction,  the  proceeds  retain  the  character  of  real 
estate  for  the  purposes 'of  devolution  and  transmission...  So 

1  «'8Winahts  v.  iTethunfe, -iiS  N.  J.  '^Barclay   v.    Cooper,   42   N.   J. 

Eq:,  185.                      ■  Eq.,  516.                                 •' 

«9P.   L.    1898,  p.  42.     i-Cotnp.  7ip,  L,   igoo,  p.  384.  ;4:Comp. 

Stat.,  p.  2264.  sec.  17,  p.  424,  infra.  Stat.,  5671,  sec.  13. 


Real  Property  as  Assets.  353 

where  lands  of  an  infant  are  sold ;'-  so  with  the  surplus  pro- 
ceeds of  lands  of  a  decedent  sold  by  order  of  the  orphans' 
court  for  the  payment  of  debts  ;'■'  so  where  lands  are  sold  in 
the  exercise  of  the  right  of  eminent  domain  \'^  and  so  with  the 
proceeds  of  the  sale  of  lands  under  partition  proceedings.'"^^ 

The  rule  is  that  such  proceeds  retain  their  character  as  real 
estate  until  they  vest  in  some  person  who  is  not  an  infant  or 
a  lunatic,  and  who  has  capacity  to  change  the  nature  of  the 
estate,  and  who,  by  accepting  it  as  money,  or  by  some  act  recog- 
nizing it  as  personal  estate,  gives  it  the  character  of  per- 
sonalty."" So  where  lands  of  a  non-resident  monomaniac 
were  sold  under  partition  proceedings,  and  her  share  of  the 
proceeds  paid  into  court,  and  she  was  for  four  years  confined 
in  an  insane  asylum,  but  thereafter  resided  at  her  own  home 
in  Pennsylvania  for  the  period  of  two  years,  and  was  never 
declared  a  lunatic  by  virtue  of  any  commission,  and  it  was 
proved  that  she  was,  except  on  one  subject,  perfectly  sane,  and 
that  she  sought  to  get  the  money  and  was  indignant  when  it 
was  kept  away  from  her  by  having  been  paid  into  court,  it  was 
held  that  the  fund,  including  the  accrued  interest,  was  per- 
sonalty, and  payable  to  her  administrator." 

In  considering  the  question  whether  the  proceeds  of  the 
sale  of  lands  of  a  decedent  will  be  considered  realty  or  per- 
sonalty, the  test  is  whether  the  property  was  realty  or  per- 
sonalty at  the  time  of  his  death.  So  when  testator  gave  his 
executors  a  general  power  of  sale,  and  devised  all  of  the  residue 
of  his  estate  to  one  who  died  intestate,  and  the  personal  prop- 

"-Wetherill  v.  Hough,  52  N.  J.  '•"•Oberly  v.  Lerch,  18  N.  J.  Eq., 

Eq.,  683.    The  case  of  Snowhill  v.  346.    Affirmed,  ih..  575.    McCarthy 

Snowhill,  3  N.  J.  Eq.,  20.  contra,  v.    McCarthy,   57   N.   J.   Eq.,   587- 

was    overruled    by    the    court    of  589. 

errors  and  appeals  in  an  unreport-  ^"Qberly  v.  Lerch,  18  N.  J.  Eq.. 

ed   decision.     See   vS.   C,  2,   N.  J.  346.     Affirmed,  ib.,  575.     Smith  v. 

Eq.,  30-34-  Bayright.   34   N.   J.   Eq.,   424.    Ja- 

^^Oberly  v.  Lerch,  18  N.  J.  Eq.,  cobus    v.   Jacobus,   36    N.   J.    Eq., 
346.     Affirmed,  ib.,  575.     Cook  v.  248.     Affirmed,  ib.,  317.     Wether- 
Cook,  20  N.  J.   Eq.,   375-     Fidler  ill  v.  Hough,  52  N.  J.  Eq.,  683. 
V.  Higgins,  21  N.  J.  Eq.,  138.  '^Smith    v.    Bayright,    34    N.   J. 

'■•Wetherill  v.  Hough,  52  N.  J.  Kq.,   424. 
Eq.,  683. 


354  Probate  Law  and  Practice. 

erty  of  testator  having  been  found  insufficient  to  pay  his  debts, 
the  realty  was  sold  by  the  executor  under  his  power  of  sale, 
after  the  death  of  the  residuary  legatee,  the  surplus  proceeds  of 
such  sale  will  be  considered  realty,  and  will  pass  to  the  heirs 
of  the  residuary  legatee  and  not  to  his  personal  representa- 
tives.^® So  where  one  having  an  interest  in  the  proceeds  of 
lands  sold  under  partition  proceedings  during  his  lifetime, 
dies,  such  interest  is  personal  estate,  and  not  realty. '*'  And  so, 
where  after  sale  of  land,  payment  of  part  of  the  price,  and  plac- 
ing of  the  deed  in  escrow,  pending  the  happening  of  a  certain 
event,  before  which  the  vendor  died,  the  vendor's  heirs  made  a 
deed  to  the  purchaser,  and  delivered  it,  together  with  the  deed 
in  escrow,  and  the  purchase  money  was  paid  to  the  vendor's 
administrator,  the  latter  did  not  hold  it  as  part  of  the  estate, 
but  as  trustee  for  the  heirs. ^^ 

Interest  on  Proceeds  of  Sale  of  Lands. 

The  interest  accruing  prior  to  the  death  of  the  owner  of  the 
proceeds  of  lands  sold  by  order  of  court,  and  which  are  treated 
as  realty,  is  personal  property.®^ 

Estate  per  Autre  Vie. 

Although  an  estate  per  autre  vie  vests  in  the  administrator 
of  the  deceased  tenant,  yet  he  takes  it  in  trust  for  the  next  of 
kin  after  payment  of  debts,  and  they  may  be  fairly  presumed 
to  hold  as  next  of  kin.  by  his  appointment,  until  the  contrary 
is  shown.^- 

Contracts  for  Sale  of  Real  Property. 

Where  decedent  has  entered  into  a  contract  for  the  sale  of 
lands,  which  equity  would  enforce  at  the  suit  of  the  vendor 
against  an  unwilling  purchaser,  the  lands  will  be  regarded  in 
equity  as  personalty.     The  cases  in  which  the  court  has  re- 

78Cook  V.   Cook,  20  N.  J.   Eq..  25.    See,  also,  "Contracts  for  Sale 

375.     Barclay  v.  Cooper,  42  N.  J.  of   Real   Property,"  this  note,   in- 

Eq.,   516.  fra. 

79Jacobus  V.  Jacobus,  37  N.  J.  siQberly  v.  Lerch,  18  N.  J.  Eq.. 

Eq.,  17.     Affirmed,  sub  nom.    Cox  346.     Affirmed,  ib.,  575. 

V.  Roome,  38  N.  J.  Eq.,  259.  saWatson  v.  Kelty,  16  N.  J.  L.. 

sf^Teneick  v.  Flagg,  29  N.  J.  L.,  517-1525. 


Real  Property  as  Assets.  355 

fused  to  decree  that  a  contract  for  sale  works  an  equitable 
conversion  are  those  in  which  the  contract  was  such  as  equity 
would  not  enforce  ;*^  and  an  agreement  between  two  partners, 
that  at  the  end  of  three  months  after  the  death  of  either,  a 
valuation  of  all  their  firm  assets,  including  real  estate,  should 
be  made,  and  that  the  survivor  should  have  one  year  thereafter 
in  which  to  take  and  pay  the  value  of  such  share  to  the  legal 
representatives  of  decedent,  constitutes  an  equitable  conversion 
of  the  realty.®* 

Rents  and  Profits. 

Rents  of  real  estate  of  decedent  accruing  before  his  death 
do  not  vest  in  the  heir,  but  pass  to  the  personal  representative.^' 

Whoever  is  entitled  to  the  beneficial  interest  of  the  land, 
from  the  death  of  the  testator,  is  entitled  to  the  rents  and 
profi-ts.  Rents  and  profits  of  a  decedent's  estate  accruing  after 
his  death  do  not  go  to  his  personal  representatives,  but  vest  in 
the  heirs  and  devisees  f*^  and  a  devise  by  the  testator  of  "all 
the  rest  and  residue  of  my  estate,  real,  personal  and  mixed," 
will  pass  rents  accruing  after  his  death.®"  Rents  accruing  pend- 
ing a  suit  in  chancery,  collected  by  a  receiver  appointed  in  that 
suit,  are  assets  to  be  applied  to  the  payment  of  debts.®®  When 
executors  have  only  a  naked  power  of  sale,  the  legal  title  de- 
scends to  the  heir  until  such  power  is  exercised  by  the  ex- 
ecutor, and  the  heir  is  entitled  to  the  rents  and  profits  while 

83King  V.  Ruckman,  21  N.  J.  Eq.,  ^cAHen  v.  Van  Houten,  19  N.  J. 

599.     Haughwout   V.    Murphy,   22  L.,  47.     Whitehead  v.  Gibbons,  10 

N.  J.  Eq.,  531.     Miller  v.  Miller,  N.  J.  Eq.,  230.     Current  v.  Cur- 

25  N.  J.  Eq.,  354,  and  cases  cited  rent,  11  N.  J.  Eq.,   186.     Lyon  v. 

on  p.  365.    Case  reversed,  27  N.  J.  Church  of  the  Redeemer,  41  N.  J. 

Eq.,  514.     Keep  v.   Miller,  42  N.  Eq.,  389.     Brokaw  v.  Brokaw,  41 

J.  Eq.,   100.     Coles  V.  Fecney,  52  N.  J.  Eq.,  304. 

N.  J.  Eq.,  493.  s^Whitehead  v.  Gibbons,   10  N. 

"Maddock  v.  Astbury,  32  N.  J.  J.  Eq.,  230. 

Eq.,  181.  ss^oddington  v.  Bispham,  36  N. 

850berly  v.  Lerch,  18  N.  J.  Eq.,  J.  Eq.,  574. 
346.     Affirmed,  ib.,  575. 


356 


Probate  Law  and  Practice. 


such  title  is  so  vested  in  him  p"^  but  where  the  will  imperatively 
required  executors  to  sell  realty  after  a  short  time,  and  during 
that  time  to  control  the  property,  pay  taxes,  insurance,  &c., 
and  made  no  other  disposition  of  the  property,  it  was  held  that 
the  fee  went  to  the  executors. ^° 


s»Moores   v.    Moores,   41    N.   J.      J.    Eq.,    478.      Hill    v.    Smith,    32 


L.,  440-445.  Herbert  v.  Tuthill,  i 
N.  J.  Eq.,  141.  Todd  v.  Wortman. 
45  N.  J.  Eq.,  723.  See  also  Snow- 
hill  V.  Snowhill.  22,  N.  J.  L.,  447- 
Probasco  v.  Creveling,  25  N.  J.  L., 
449-452.  Gest  V.  Flock.  2  N.  J. 
Eq.,   108.     Fluke  v.   Fluke,   16  N. 


N.  J.  Eq.,  473.  Morse  v.  Hacken- 
sack  Savings  Bank,  47  N.  J.  Eq., 
279.  Bonnell  v.  Bonnell,  47  N.  J. 
Eq..  540. 

soCrane  v.  Bolles.  49  ^^  J-  Eq., 


■v'.    .'.6f. 

CHAPTER  XX 
PROCEEDINGS  FOR  DISCOVERY. 
Against  Executor,  &c. 

Whenever  application  shall  be  made  to  the  orphans'  court 
of  the  county  in  which  letters  testamentary,  of  administration 
or  of  guardianship,  were  issued,  by  petition  by  or  in  behalf 
of  any  person  interested  in  the  estate  in  the  hands  of  any  ex- 
ecutor, administrator,  guardian  or  trustee,  verified  by  affidavit, 
alleging  that  such  executor,  administrator,  guardian  or  trus- 
tee has  wasted,  embezzled  or  misapplied  the  estate  entrusted 
to  him,  the,  said  court,  by  an  order,  may  compel  discovery  to 
be  made  of  the  condition  of  the  estate,  by  the  production  of 
books,  papers,  securities  and  documents  relating  to  the  estate, 
or  the  examination  of  such  executor,  administrator,  guardian 
or  trustee  and  witnesses,  and  may  take  such  proceedings  for 
the  protection  of  such  estate,  by  order  or  decree,  as  may  be 
taken  in  like  cases  in  the  court  of  chancery,  and  compel  obedi- 
ence to  such  order  or  decree  by  the  same  process  and  in  the 
same  manner  as  orders  or  decrees  of  the  court  of  chancery 
are  enforced.^ 

Jurisdiction  of  Orphans'  Court. 

This  section  is  remedial,  and  is  therefore  to  be  liberally  con- 
strued. Its  object  is  to  protect  estates  against  the  misconduct 
of  the  trustees  thereof  in  embezzling,  wasting,  or  misapplying 
them,  by  compelling  such  trustees,  when  such  conduct  has  been 
established,  to  make  restitution.  Where  an  executor  or  trus- 
tee under  a  will  applies  to  his  own  use  the  money  of  the 
estate,  or  the  fund  entrusted  to  him  for  investment,  giving  as 
security  for  its  repayment  only  an  insufficient  pledge  of  his 
own  property,  it  is  no  stretch  of  construction  to  hold  that  he 

;CI    .T    .7.  ■  .    : 

'Orphans'  Court  Act,  sec.  139.  3 
Comp.  Stat..  3865.  :  .! 

357 


358  Probate  Law  and  Practice. 

has  been  guilty  of  misapplication  within  the  meaning  of  this 
section,  and  that  there  is  ample  power  of  protection.  What- 
ever the  Court  of  Chancery  might  do  in  such  case,  the  orphans' 
court  may  do.  Chancery  may  require  the  faulty  fiduciary  to 
account  for  the  money  and  bring  it  into  court,  and  the  or- 
phans' court  has  like  power.-  This  section  does  not,  however, 
confer  upon  the  orphans'  court  all  of  the  powers  which  the 
Court  of  Chancery  has  over  cases  of  administration,  guardian- 
ship or  trust,  and  confers  no  jurisdiction  to  make  a  decree 
against  any  person  not  an  executor,  administrator,  guardian  or 
trustee,  and  already  subject  to  the  jurisdiction  of  the  court.* 
It  does,  however,  confer  upon  the  orphans'  court  as  ample 
jurisdiction  over  executors,  administrators,  guardians  and  trus- 
tees as  the  Court  of  Chancery  possesses.* 

Proceedings  by  Executor,  &c.  for  Discovery  of  Assets. 

Whenever  application  shall  be  made  to  the  orphans'  court 
of  the  county  in  which  letters  testamentary,  of  administration, 
or  of  guardianship  were  issued,  by  petition  by  any  executor, 
administrator  or  guardian,  alleging  that  he  believes  that  any 
person  has  in  his  or  her  possession  personal  property  of  the 
estate  of  the  testator,  intestate  or  ward  of  such  executor, 
administrator  or  guardian,  or  alleging  that  he  believes  that  any 
person  has  knowledge  of  the  existence  or  whereabouts  of  any 
personal  property  of  the  estate  of  such  testator,  intestate  or 
ward,  the  court  may,  by  order,  require  such  person  to  appear 
before  it  and  make  discovery  as  to  his  possession  of,  or 
knowledge  of  the  whereabouts  or  existence  of  any  personal 
property  of  such  testator,  intestate  or  ward  by  the  produc- 
tion of  books,  papers  or  securities  relating  to  such  estate,  or 
the  examination  of  such  person  and  other  witnesses,  and  may 
take  such  proceedings  for  the  recovery  of  any  assets  of  the  said 
estate  so  discovered  by  order  or  decree,  as  may  be  taken  in 
like  cases  in  the  court  of  chancery,  and  may  compel  obedience 
to  such  order  or  decree  by  the  same  process  and  in  the  same 

^Perrine  v.  Petty,  34  N.  J.  Eq.,  ^Perrine  v.  Petty,  34  N.  J.  Eq., 

193-  193-195. 

^Hunt  V.  Mayberry,  29  N.  J.  h., 
403-406. 


Proceedings  for  Discovery.  359 

manner  as  orders  or  decrees  of  the  court  of  chancery  are  en- 
forced.^ 

Practice. 

The  method  of  proceeding  to  obtain  discovery  is  to  present 
to  the  orphans'  court  a  verified  petition,  fully  setting  up  all  of 
the  facts  supporting  the  petitioner's  application.  It  is  not, 
for  example,  sufficient  to  simply  allege  that  petitioner  verily  be- 
lieves that  the  executor  has  wasted  or  misapplied  the  estate  en- 
trusted to  him,  or  that  a  certain  person  has  in  his  possession 
personal  property  of  the  estate  of  the  decedent  or  ward  of  pe- 
titioner. The  facts  upon  which  such  belief  is  founded  must 
be  recited.  The  petition  should  also  show  that  petitioner 
has  such  an  interest  in  the  estate,  as  executor,  administrator 
or  guardian,  legatee,  next  of  kin  or  otherwise,  as  entitles  him 
to  call  upon  the  executor  or  other  person  to  make  discovery. 

Upon  the  presentation  of  the  petition,  if  the  facts  therein 
stated  make  out  a  prima  facie  case,  the  court  will  grant  a  rule 
requiring  such  executor  or  person  complained  of  to  show  cause 
before  the  court,  on  a  day  therein  named,  why  he  should  not 
make  discovery  as  prayed,  and,  if  he  is  unable  to  show  such 
cause,  an  order  directing  him  to  appear  and  make  discovery 
will  be  allowed. 


sp.  L.   1909,  p.  284.     3  Comp. 
Stat.,  p.  3866,  sec.   139a. 


:r:>ox.H. 


CHAPTER  XXI. 
INVENTORIES. 

Inventories  Must  be  Specific. 

The  statute  provides  that  no  inventory  shall  be  received  or 
admitted  to  be  proved  which  is  not  full  and  specific  in  its  de- 
tails.^ The  inventory  presented  to  the  surrogate  by  an  executor 
should  contain  a  specific  enumeration  of  the  goods,  chattels 
and  credits  of  the  testator.  A  paper  containing  items  such  as 
"Cash,  bonds  and  notes"  and  "Household  goods  and  kitchen 
furniture,"  is  not,  strictly  speaking,  an  inventory,  and  may 
properly  be  rejected  as  such  by  the  surrogate.-  The  practice 
of  filing  with  the  surrogate  general  inventories,  instead  of  those 
which  are  specific  in  their  details,  is  strongly  disapproved.  The 
fact  that  the  executor  or  administrator  retains  in  his  own  cus- 
tody a  more  specific  inventory  does  not  answer  the  design  of 
the  law ;  the  parties  in  interest  are  entitled  to  the  information 
as  well  as  the  executor.^ 

BY  EXECUTORS  AND  ADMINISTRATORS. 

Inventory  and   Appraisement  by   Executor   or   Adminis- 
trator. 

The  statute  provides  that  every  executor  and  administrator 
shall  make  a  true  and  perfect  inventory  of  the  goods  and 
chattels,  rights  and  credits  and  effects  of  the  deceased,  and 
cause  a  just  appraisement  of  the  same  to  be  made  by  two  dis- 
creet and  impartial  persons,  which  inventory  shall  be  filed 
with  the  surrogate  within  three  months  after  grant  of  letters 
testamentary  or  of  administration,  unless  the  orphans'  court, 
for  good  cause  shown,  shall  allow  further  time  therefor.* 

^Orphans'  Court  Act,  sec.  57.   3  sp^j-sgi  y    Pursel,  14  N.  J.  Eq., 

Comp.  Stat.,  3830.  514. 

^Vanmeter  v.  Jones,  3  N.  J.  Eq.,  ^Orphans'  Court  Act,  sec.  58.    3 

520.  Comp.  3tat.,  3830. 

360 


Inventories.  361 

Appointment  of  Appraisers. 

The  appraisers  b}^  whom  the  appraisement  of  the  goods, 
chattels,  rights,  credits  and  effects  of  any  testator  or  intestate 
shall  be  made,  shall  be  chosen  by  the  executor  or  adminis- 
trator subject  to  the  approval  of  the  surrogate,  unless  in  cases 
where  it  shall  be  necessary  to  set-off  goods  and  chattels  for 
the  benefit  of  the  family  of  the  deceased.^ 

Method  of  Proving  Inventory. 

The  inventory  of  every  executor,  or  administrator,  shall  be 
proved  by  the  oath  of  the  executor,  or  administrator,  that  the 
same  is  just  and  true,  and  by  oath  of  the  appraisers,  or  one 
of  them,  that  the  goods  and  chattels,  rights,  credits  and  effects 
in  said  inventory  specified  were  appraised  at  their  just  and 
true  respective  values,  according  to  the  best  of  their,  or  his, 
(as  the  case  may  be),  judgment;  and  if  one  only  of  the  ap- 
praisers be  sworn  thereto,  it  shall  be  added  that  the  other  ap- 
praiser was  present  at  the  same  time  and  consented  to  the 
said  valuation  and  appraisement ;  which  oaths  shall  be  taken 
before  the  surrogate,  deputy-surrogate,  or  a  master  in  chan- 
cery,*' and  the  same  shall  be  endorsed  on  the  said  inventory 
which  shall  be  filed  with  the  surrogate  ;  and  in  case  goods  and 
chattels,  or  property,  of  the  deceased,  shall  have  been  set-off 
for  the  benefit  of  the  family,  the  executor,  or  administrator, 
shall  also  verify  by  his  oath  the  list  of  property  selected  for 
the  use  of  the  family,  and  file  the  same  with  the  inventory.^ 

^Orphans'  Court  Act,  sec.  59.  3  provisions  of  the  Orphans'  Court 
Comp.  Stat.,  3831.  For  appoint-  Act  to,  upon  or  in  connection  with 
ment  of  appraisers  where  it  is  de-  any  inventory,  may  be  taken  be- 
sired  to  set  oflf  exemption  for  fore  any  person  qualified  to  ad- 
family  of  decedent,  see  "Allow-  minister  oaths  in  the  state  of  New 
ance  to  Family  of  Decedent,"  p.  Jersey."  This  act  further  provides 
366,  infra,  and  "Appraisers  Must  that  any  and  all  such  oaths  there- 
Be  Appointed  by  Surrogate."  p.  tofore  taken  before  'any  person 
368,  infra.  qualified  at  the  time  of  such  tak- 

''By    a    supplement    enacted    in  ing  to  administer  oaths  in  the  state 

1915,  it  is  provided  that  "hereafter  of  New  Jersey,  are  thereby  vali- 

the  oath   or  oaths  of   any   execu-  dated.     P.  L.  1915,  p.  350. 
tors,    administrator    or    appraiser  ^Orphans'  Court  Act,  see.  62.   3 

required    to    be    taken    under    the  Comp.   Stat.,   383^4.  U;  ,.t»iJ<4  .»i»'»,.  1 


36?  Probate  Law  and  Practice. 

Property  to  be  Inventoried. 

The  inventory  must  contain  a  full  description  of  all  the  chat- 
tels, real  and  personal,  in  possession  and  in  action,  of  which 
decedent  died  possessed.^ 

Proceedings  in  Case  of  Neglect  to  File  Inventory. 

The  statute  provides  that  if  any  executor  or  administrator 
shall  fail  to  file  such  inventory  with  the  surrogate  within  the 
time  aforesaid,  the  surrogate  shall  report  such  neglect  to  the 
orphans'  court,  and,  if  the  said  court  so  direct,  shall  cite  him 
to  render  such  inventory ;  and  if  he  continue  in  default,  the 
orphans'  court  shall  revoke  the  letters  testamentary  or  of  ad- 
ministration, and  grant  letters  to  some  other  person.''  It  is, 
however,  provided  by  the  Act  of  1911,^"  that  the  surrogate 
shall  not  be  required,  except  upon  the  written  request  of  some 
person  interested  in  the  estate,  to  report  to  the  orphans'  court 
the  failure  of  any  executor  or  administrator  to  file  an  inventory 
within  the  time  limited  by  law. 

Excuse  for  Not  Filing  Inventory. 

Where  testatrix  gave  all  her  furniture  and  clothing  to  her 
sister,  who  was  co-executrix  with  complainant,  and  the  only 
other  personal  property  left  by  testatrix  was  a  debt  of  $400, 
secured  by  notes  and  deeds  by  way  of  mortgage  and  notes  for 
small  sums  against  several  beneficiaries  which  were  not  col- 
lected, but  were  deducted  from  their  legacies,  it  was  held  that 
the  failure  of  the  executors  to  file  an  inventory  was  excusable, 
and  that  in  proceedings  for  an  accounting  they  would  not  be 
penalized  therefor.^^ 

When  Unnecessary  to  File  Inventory. 

The  statute  provides  that  it  shall  not  be  necessary  for  any 
executor  or  administrator  who  is  entitled  to  all  the  personal 
estate  of  his  testator  or  intestate,  after  payment  of  debts  and 

82  Williams  on  Executors,  846.  '<*?.  L.  191 1,  p.  734- 

As  to  what  constitutes  assets,  see  ^^Mulford   v.   Mulford,   53   Atl. 

"Assets,"  p.  337,  supra.  Rep.,  79. 

'Orphans'  Court  Act,  sec.  58.    3 
Comp.  Stat.,  3830. 


Inventories.  363 

legacies,  to  file  any  inventory,  but  any  person  interested  in  the 
estate  may  apply  to  the  orphans'  court,'  on  notice  to  the  ex- 
ecutor or  administrator,  for  an  order  requiring  him  to  file  an 
inventory.^-  It  is  further  provided  that  where  an  exemplified 
copy  of  the  record  of  probate  of  the  will  of  a  non-resident  has 
been  admitted  to  probate  in  this  state,  and  letters  testamentary, 
or  of  administration  with  such  will  annexed,  issued  thereon, 
such  executor  or  administrator  c.  t.  a.,  is  not  required  to  file 
an  inventory,  unless  the  ordinary  or  orphans'  court  so  order.^^ 

Penalty  for  Failure  to  File  Inventory. 

The  act  provides  that  if,  after  having  been  cited  to  file  an 
inventory,  the  executor  or  administrator  fails  or  neglects  so  to 
do,  the  orphans'  court  may  remove  him  and  grant  letters  to 
some  other  person  ;^^  and  an  executor  or  administrator  so  in 
default  is  liable  to  attachment  for  contempt. ^^ 

Method  of  Objecting  to  Inventories. 

The  statute  confers  upon  the  orphans'  court  general  juris- 
diction to  inquire  into  the  fairness  of  inventories,'"  and  the 
fairness  of  an  inventory  may  be  attacked  by  filing  exceptions 
thereto. ^^  The  general  rule  is,  however,  laid  down  that  a 
probate  court  ought  not  to  reject  an  inventory,  or  order  it  mod- 
ified, because  it  contains  property  the  title  to  which  is  disputed ; 
for  the  adjudication  of  ti^le  belongs  to  common  law  tribunals, 
and  the  probate  court  cannot  conclude  the  question.'^  This 
question  was  considered  in  the  case  of  In  re  estate  of  James 
McSpirit,^^  in  which  the  orphans'  court  had  stricken  from  an 
inventory  bonds  and  mortgages  to  the,  testator  appearing 
therein,  on  the  ground  that  they  were  not  in  fact  testator's 
property.     The  Prerogative  Court,  on  appeal,  found  from  the 

^^Orphans'  Court  Act.  sec.  120.  '"Orphans'  Court  Act,  sec.  2.    3 

3  Comp.   Stat,  3855.  Comp.  Stat.,  3813- 

i^Orphans'   Court   Act.   sec.   23.  ^'Dilts   v.    Stevenson,    17   N.   J. 

3   Comp.  Stat.,  3820.  Eq..   407.     Picket   v.   Alpaugh,  42 

'••Orphans'   Court   Act,   sees.   58  N.  J.  Eq.,  630. 

and   149.     3  Comp.  Stat.,  3831.     3  "'Schouler    on    Executors,     (3(J 

Comp.   Stat.,  3868.  edition),  sec.  236. 

'•'"Orphans'  Court  Act,  sec.  183.  ^''73  N.  J.  Eq.>  613. 
3  Comp.  Stat.,  3880. 


s 

364  Probate  liAW:  .and.  Practice. 

evidence  that  the  bonds  and  mortgages  in  question  were  in 
fact  the  property  of  the  testator,  but  called  attention  to  the 
fact  that  the  question  of  the  jurisdiction  of  the  orphans'  court 
to  deal  with  the  matter  had  not  been  raised  either  in  the  court 
below  or  in  the  Prerogative  Court,  and  cautioned  the  bar  that 
this  decision  must  not  be  construed  to  indicate  the  court's  view 
that  the  orphan's  court,  under  its  jurisdiction  to  pass  upon  the 
fairness  of  an  inventory,  may  determine  the  title  to  choses  in 
action  which  the  executors  have  found  in  the  testator's  posses- 
sion and  placed  in  the  inventory,  and  stated  that  a  claim  to  such 
jurisdiction  is  unprecedented.  But,  granting  that  the  inventory 
cannot  be  impeached,  this  only  affects  proceedings  relating 
to  the  inventory  itself  ;  and  it  may  be  showai  on  the  accounting 
of  the  executor  or  administrator  that  assets  were  omitted 
which  ought  to  have  been  accounted  for,  and  that  the  assets 
yielded,  or  should  have  yielded,  more  than  they  were  appraised 
at ;  and  so  vice  versa,  on  the  accounting  the  inventory  may  be 
shown  to  have  included  what  should  have  been  omitted,  or  to 
have  appraised  specific  things  at  more  than  they  could  fairly 
bi*ing.2o 

There  can  be  no  question  that  upon  the  settlement  of  the 
account  of  an  executor  or  administrator,  the  fairness  of  the 
inventory  may  be  attacked  by  exceptions.  Accountant  is  re- 
quired to  charge  himself  with  the  amount  of  the  inventory 
filed  by  him,-^  which  is  therefore  incorporated  into  the  account, 
and  is  consequently  subject  to  exceptions  in  the  same  manner 
as  other  items  of  the  account;  and  upon  such  exceptions  the 
orphans'  court  has  jurisdiction  to  determine  what  are  assets, 
as  between  the  executor  or  administrator  and  those  interested 
in  the  estate  in  his  hands. -^ 

GUARDIANS'    INVENTORIES. 

Inventory  by  Guardians. 

Every  testamentary  guardian,  guardian  in  socage,  or  other 
guardian,  shall,  within  three  months  after  his  acceptance  of  or 

20Schouler    v.    Executors,     (3d  14    N.    J.    Eq..   496.      Tichenor   v. 

Edition),    sec.   236.     Montgomery  Tichenor,  45  N.  J.  Eq.,  303.    Hunt 

V.  Dunning,  2  Bradf.  Sum,  220.  v.  Smith.  58  N.  J.  Eq.,  25. 

2iVanpelt   v.   Veghte,    14   N.   J.  -^Budd  v.  Hiler,  27  N.  J.  L.,  43. 

L.,  207-210.    Cooley  V.  Van  Syckle, 


Inventories. 


6^D 


appointment  to  his  office,  deliver  to  the  clerk  of  the  orphans' 
court  an  inventory,  upon  oath,  of  all  the  estate,  real  and  per- 
sonal, which  he  shall  have  received  or  taken  possession  of.-^ 
It  is  to  be  noted  that  the  statute  does  not  require  that  guard- 
ians' inventories  be  proved  by  the  oath  of  appraisers;  nor,  in- 
deed, do  appraisers  appear  necessary. 

Penalty  for  Neglect  to  File  Inventory-Proceedings. 

If  any  guardian  fail  to  deliver  to  the  surrogate  an  inventory 
of  the  estate  of  the  ward  in  the  time  and  manner  required  by 
law,  such  surrogate  shall  report  such  neglect  to  the  orphans' 
court,  and  if  the  said  court  so  direct,  shall  cite  such  guardian 
to  deliver  such  inventory  at  the  ensuing  term  of  the  orphans' 
court,  and  the  costs  of  such  citation  and  of  the  proceedings 
thereon  shall  be  paid  by  such  guardian  out  of  his  own  private 
estate;  and  if  he  fail  to  deliver  such  inventory,  according  t(j 
such  citation,  the  court  shall  revoke  the  letters  of  guardian- 
ship, and  remove  him  from  office,  and  appoint  some  suitable 
person  in  his  place,  who  shall  have  all  the  powers  of  the  per- 
son so  removed ;  and  the  person  so  removed  shall  not  be  en- 
titled to  any  commissions  or  compensation  for  his  past  serv- 
ices.-* A  guardian  who  fails  to  file  an  inventory,  after  having 
been  cited  so  to  do,  is  liable  to  attachment  for  contempt.-^ 

The  Act  of  191 1,  however,  provides  that  the  surrogate  shall 
not  be  required,  except  upon  the  written  request  of  some 
person  interested  in  the  estate,  to  report  to  the  orphans'  court 
the  failure  of  any  guardian  to  file  an  inventory  within  the  time 
prescribed  by  law.-*^ 

230rphans'    Court   Act,  sec.   63.  ^sQrphans'  Court  Act,  sec.   183. 

3  Comp.  Stat.,  3832.  3  Comp.  Stat.,  3880. 

^*Orphans'   Court   Act,  sec.   64.  -*''P.  L.  191 1.  P-  734- 

3  Comp.  Stat.,  3832. 


CHAPTER  XXII. 

ALLOWANCE  TO  FAMILY  OF  DECEDENT. 

Statutory  Provisions. 

The  wearing  apparel  of  any  person  who  shall  die,  leaving  a 
family  residing  in  this  state,  and  goods  and  chattels,  money 
and  effects  of  the  estate  of  such  deceased  to  the  value  of  two 
hundred  dollars,  shall  be  reserved  to  and  for  the  use  of  the 
family,  against  all  creditors,  and  before  any  distribution  or 
other  disposition  thereof.^ 

Who  Deemed  to  Have  Left  a  Family. 

Every  person  residing  in  this  state  at  the  time  of  his  death, 
dying  testate  or  intestate,  and  leaving  a  widow  or  a  child  or 
children  who  shall  reside  in  his  family  at  his  death,  him  sur- 
viving, shall  be  deemed  and  taken  to  have  left  a  family  entitled 
to  the  benefits  of  the  last  preceding  section ;  but  nothing  in 
that  section  contained  shall  be  permitted  to  conflict  with  the 
provisions  of  any  last  will.- 

Nature  and  Purpose. 

The  provisions  of  these  sections  of  the  statute  are  the  es- 
tablishment of  a  pure  bounty  of  the  law  for  the  preservation 
of  the  immediate  family  of  a  decedent,  presumably  dependent 
upon  him,  from  the  distress  o^^  extreme  poverty  at  his  death. 
It  has,  for  its  objects,  defined  individuals,  whom  it  intends  to 
assist,  or  relieve,  personally.  It  does  not  purpose  to  augment 
the  estate  of  those  individuals  for  the  benefit  of  others,  who 
may  be  entire  strangers  to  the  decedent.  In  many  cases,  the 
bounty  is  accorded  at  the  expense  of  creditors,  who  suffer  from 
the  insolvency  of  their  debtor.  It  is  apparent,  from  its  scheme 
and  the  detriment  it  may  be  to  creditors,  that  while  the  courts 

^Orphans'    Court    Act,    sec.    60.  ^Orphans'  Court  Act,  sec.  61.   3 

3  Comp.  Stat.,  p.  3831.  Comp.  Stat.,  p.  3831. 

366 


Allowance  to  Decedent's  Family.  367 

should  construe  the  statute  with  sufficient  liberality  to  accom- 
plish its  charitable  intent,  they  should  not  be  too  ready,  in  the 
absence  of  a  clear  manifestation  in  the  law  itself  of  a  pur- 
pose to  the  contrary,  to  give  it  an  interpretation  which  will  tend 
to  facilitate  injustice  to  creditors  for  the  benefit  of  others  than 
the  objects  of  the  bounty.  So  where  a  testator  in  his  will 
disposed  of  his  entire  estate,  and  bequeathed  and  devised  the 
entire  residue  thereof,  after  the  payment  of  debts  and  legacies, 
to  his  children,  but  made  no  provision  for  his  wife,  who  died 
six  days  after  him,  and  whose  executors  claimed  the  two  hun- 
dred dollar  exemption  provided  by  the  statute,  it  was  held  that 
the  will  left  nothing  undisposed  of  from  which  the  bounty 
could  be  paid,  and  that  the  bounty  was  lost,  the  word,  "con- 
flict," as  used  in  this  section  of  the  act,  meaning  that  the  will 
shall  be  supreme,  where  complete  execution  of  its  provisions 
does  not  admit,  expressly  or  impliedly,  the  bestowal  of  the 
bounty.^  So  where  testator  gave  one-half  of  the  income  of  his 
estate  to  his  wiie  for  life,  and  the  other  half  to  his  son  until  he 
became  thirty  years  old,  followed  by  a  gift  to  his  wife  and 
son,  during  the  years  above  limited,  of  the  use  and  oc- 
cupancy of  his  mansion  house,  furniture,  &c.,  the  widow  is  not 
entitled  to  the  two  hundred  dollar  exemption,  because  such 
reservation  would  conflict  with  the  will.* 

Proceedings  to  Set  Off  Exemption  for  Family. 

When  it  is  desired  to  set  off  goods  and  chattels  for  the 
benefit  of  the  family  of  the  deceased,  it  is  the  duty  of  the  ex- 
ecutor or  administrator  of  such  deceased  to  apply  to  the  sur- 
rogate of  the  county  where  such  deceased  resided  at  the  time 
of  his  death,  and  the  said  surrogate  shall  thereupon  appoint  two 
discreet  and  judicious  persons  of  said  county,  not  interested  in 
the  estate  of  said  deceased,  and  not  of  kin  to  his  widow  or 
children,  who  shall,  before  they  enter  upon  the  duties  of  their 
appointment,  be  severally  sworn  before  the  surrogate,  or  any 
person  lawfully  authorized  to  administer  an  oath,  faithfully, 
honestl}-  and  impartially  to  appraise  such  property,  according 

3Carey  v.  Monroe,  54  N.  J.  Eq.,  *Mulford   v.  Mulford,  42  N.  J. 

632.     Mulford  V.  Mulford,  42  N.       Eq.,  68. 
J.   Eq..  68-73. 

25 


368  Probate  I^w  and  Practice; 

to  the  true  and  intrinsic  value  thereof,  without  reference  to 
what  the  same  might  be  supposed  to  bring  at  a  sale  by  vendue ; 
and  said  appraisers,  being  so  appointed  and  sworn*  shall  make 
an  inventory  and  appraisement,  in  manner  aforesaid,  of  the 
goods  and  chattels,  moneys  and  effects,  whereof  such  deceased 
died  possessed ;  which  inventory  and  appraisement  shall  in- 
clude all  the  property  required  to  be  inventoried  and  appraised 
by  the  executors  or  administrators  of  any  deceased  person ; 
and  the  widow  of  the  deceased,  or  his  executor  or  adminis- 
trator, may  select  from  such  inventory,  goods  and  chattels, 
money  or  effects,  to  the  value  of  two  hundred  dollars,  and  an- 
nex to  said  inventory  a  list  thereof  ;  and  the  goods  and  chattels, 
money  or  effects,  so  selected,  shall  thereupon  become  the 
property  of  said  family  and  remain  for  their  use.^ 

Appraisers  Must  be  Appointed  by  Surrogate. 

It  will  be  noted  that  the  statute  provides  that  where  pro- 
ceedings are  to  be  taken  to  set  off  the  statutory  exemption  for  a 
decedent's  family,  the  inventory  must  be  made  by  appraisers 
appointed  by  the  surrogate,  not  selected  by  the  executor  or  ad- 
ministrator, and  who  must  be  sworn  before  entering  upon  the 
performance  of  their  duties  to  execute  their  office  in  pursuance 
of  the  requirements  of  the  act.® 

List  of  Property  Selected  to  be  Verified  by  Oath. 

The  statute  requires  the  executor  or  administrator  to  verify 
by  his  oath  the  list  of  property  selected  for  the  use  of 
the  family  of  the  deceased,  and  to  file  the  same  with  the  in- 
ventory.'' 

Necessity  for  Making  Selection. 

Unless  property  to  the  amount  of  two  hundred  dollars  is  ac- 
tually appropriated  for  the  widow  and  family  of  a  deceased 
debtor  pursuant  to  the  provisions  of  the  statute,  that  sum  can- 
n<6t  be  retained  by  the  executor  on  a  settlement  of  his  ac- 
cdUnt.P 

.'fiilni. 

^Orphans*  Court  Act,  sec.  60.    3  ^Orphans'  Court  Act,  sec.  62.    3 

Cojpp.  Stat.,  p.  3831.  Comp.  Stat.,  p.  3832. 

"Dilts  V.  Stevenson.  17  N.  J.  Eq.,  ^Cooley  v.  Vansyckle,  ,14  N-   T 

407-  Eq.,   49^-  ;,, 


Allowance  to  Decedent's  Family.  369 

When  Family  of  Decedent  Takes  Title. 

The  family  of  a  decedent  does  not  take  title  to  the  reservation 
which  is  contemplated  in  this  section  of  the  Orphans'  Court  Act 
until  selection  has  been  made  as  the  statute  requires." 


^Carey  v.  Monroe,  54  N.  J.  Eq., 
632. 


CHAPTER  XXIII. 

CUSTODY  AND  MANAGEMENT  OF  ESTATE. 

DUTIES     AND     LIABILITIES     OF     PERSONAL     REPRE- 
SENTATIVE. 

In  General. 

An  executor  may  do  anything  within  the  scope  of  his  pow- 
ers, without  risk  of  personal  Hability  for  his  acts,  provided  he 
exercises  the  care  and  judgment  of  a  man  of  ordinary  prudence 
and  sagacity ;  and  so  long  as  he  acts  in  good  faith  and  with 
ordinary  prudence,  his  acts  cannot  be  successfully  assailed.^ 
The  court  is  prompt  to  protect  an  executor  or  administrator 
against  loss  resulting  from  an  honest  mistake,  but  will  not  re- 
lieve him  from  loss  resulting  from  measures  adopted  solely  with 
a  view  to  his  own  interest.-  So  where  securities  which  came 
to  the  hands  of  executors  were  honestly  appropriated  by  them 
in  the  proper  discharge  of  their  duties  and  it  afterward  trans- 
pires that  such  securities  were  not  the  property  of  deceased, 
the  executors  will  be  protected  from  loss.^  So  in  respect  to 
claims  of  his  intestate  upon  third  persons,  an  administrator  is 
only  responsible  for  the  exercise  of  such  diligence  and  prudence 
as  men  of  discretion  would  employ  in  their  own  afifairs ;  if  cir- 
cumstances require  him  to  employ  a  legal  adviser,  and  he  makes 
the  selection  in  good  faith  and  with  reasonable  prudence,  he 
will  not  be  responsible  for  errors  or  mistakes  of  counsel  so  em- 
ployed.*    So  an  executor  or  administrator  may  compromise  a 

iVoorhees  v.  Stoothoflf,  ii  N.  J.  Eq.,  537.     In  re  N.  J.  Trust,  &c.. 

L.,  145-     Kirby  v.  Coles,  15  N.  J.  Co..  -jz  N.  J.  Eq.,  628. 

L.,    441.      Vanderpool    v.    Daven-  ^Cooi^y  ^    Vansyckle,   14  N.  J. 

port,  3  N.  J.  Eq.,  120.    Hamburgh  Eq.,  496. 

Mfg.  Co.  V.  Edsall,  12  N.  J.  Eq..  ^Mulford  v.  Mulford,  40  N.  J. 

392.     Heisler  v.   Sharp,  44  N.  J.  Eq.,  163. 

Eq.,  167.     Affirmed,  45  N.  J.  Eq.,  *In  re  Sharp's  Estate,  61  N.  J. 

367.    Corle  V.  Monk-house,  50  N.  J.  Fq..   601. 


.370 


Duties  and  Liabilities  of  Executors,  Etc.         371 

law  suit ;  he  may  buy  the  peace  of  the  estate  he  represents,  and 
extinguish  even  doubtful  claims  against  it^  provided  he  acts 
discreetly  and  in  good  faith. ^ 

It  is  a  general  principle  that  a  trustee  has  no  power  to  change 
the  character  of  the  trust  fund.  If  he  assumes  the  power  of 
converting  real  estate  into  personal,  or  personal  into  real,  he 
acts  at  his  peril,  and  will  be  held  personally  accountable  for 
any  loss  which  may  ensue,  and  will  not  be  permitted  to  compel 
the  beneficiary  to  accept  the  property  after  the  conversion,  or 
to  impose  upon  him  any  loss  which  may  result  from  such  con- 
version of  the  trust  fund;  and  if  the  loss  has  been  sustained 
by  reason  of  the  trustee  exceeding  his  authority  by  an  unau- 
thorized and  illegal  disposition  of  the  trust  funds  in  his  hands, 
he  is  liable  for  the  loss.  If  the  change  in  the  character  of  the 
funds  be  deemed  necessary,  or  for  the  interest  of  the  benefi- 
ciary, it  should  be  made  only  with  the  permission  and  by  the 
sanction  of  the  court.  This  rule  applies  not  only  to  executors, 
administrators,  guardians  of  infants  and  lunatics,  and  other 
trustees  specially  constituted  by  law,  but  to  all  bare  trustees 
having  charge  of  the  property  of  others  and  not  especially  in- 
vested with  peculiar  or  extraordinary  powers.® 

Where  an  executor  or  administrator  appears  to  have  acted 
honestly  and  in  good  faith,  he  who  would  impeach  his  conduct 
has  the  burden  of  showing  fraud,  mistake,  or  acts  without  au- 
thority or  contrary  to  law." 

Liability  of  Administrator  in  Case  a  Will  is  Found. 

All  lawful  acts  done  bona  fide,  by  any  administrator,  before 
notice  of  a  will,  and  all  purchases  made  of  such  administrator 
bona  fide,  before  such  notice,  shall  remain  good,  and  shall  not 
be  impeached  or  altered  by  any  executor  or  executors,  on  such 
will  afterwards  appearing;  provided,  akvays,  that  when  at  any 
time  after  such  will  shall  appear,  the  executor  or  executors 
shall  have  the  same  remedy  against  such  administrator  or  ad- 

^Meeker   v.   Vanderveer,   15   N.  802.     Smith  v.  Robinson,  83  N.  J, 

J.  L.,  392.    Rogers  v.  Hand,  39  N.  Eq.,  384. 

J.  Eq.,  270.    Manns  v.  A.  E.  San-  'Meeker   v.   Vanderveer,    15    N. 

ford  Co.,  82  N.  J.  L.,  124.  J.  L.,  392.    Rogers  v.  Hand,  39  N, 

®Quick   V.   Fisher,  9   N.  J.   Eq.,  J.  Eq.,  270. 


3/2  Probate  Law  and  Practice. 

niinistrators  for  the  goods  and  chattels,  rights  and  credits,  re- 
maining unadministered,  as  he,  she,  or  they  might  have  had 
before  the  making  of  this  act.® 

CONTINUING  DECEDENT'S  BUSINESS. 

General  Rule. 

An  executor  or  administrator  who  continues  the  business  of 
his  decedent,  either  as  a  sole  trader  or  in  a  partnership,  with 
the  testator's  assets,  though  he  does  it  as  executor,  and  not 
for  his  individual  benefit,  will  be  personally  liable  for  debts 
contracted  in  the  business;  and  this,  although  he  does  so  in 
compliance  with  directions  in  the  testator's  will,  or  in  con- 
formity with  articles  of  partnership,  to  which  the  testator  is 
a  party,  providing  that  on  the  death  of  a  partner  his  executor 
or  personal  representative  should  be  admitted  to  the  firm.^ 

Liability  for  Debts. 

Although  executors  empowered  by  testator  to  carry  on  his 
business  are,  as  has  been  seen,  personally  liable  for  the  debts 
contracted  thereby,  they  have  a  right  in  equity  to  indemnify 
themselves  for  the  payment  of  such  debts  from  the  property 
lawfully  embarked  in  the  trade. '^  Only  the  fund  employed  in 
the  business  is  answerable  to  the  subsequent  creditors,  unless 
the  testator  by  clear  and  unambiguous  language  designates  or 
authorizes  any  other  portion  of  his  estate  to  be  embarked  in 
such  trade,  in  which  case  creditors  may  also  resort  to  the  fund 
so  appropriated.^^  Where  executors  carrying  on  a  business 
imder  a  will,  without  authority  used  the  proceeds  of  the  busi- 
ness to  improve  the  lands  of  testator  not  subject  to  the  risks 
of  trade,  and  which  under  the  will  went  to  remaindermen,  this 
will  not  justify  the  court  in  charging  the  estate  of  these  remain- 

^2  Comp.  Stat.,  p.  2258,  sec.   i.  T.  L.,  398.     Laible  v.  Ferry,  32  N. 

^Wild  V.  Davenport.  48  N.  J.  L.,  J.  Eq.,  791. 

129.      Doolittle    V.    Willet,    57    N.  ^^Laible  v.  Ferry.  32  N.  J.  Eq., 

J.  L.,  398,    Laible  v.  Ferry,  32  N.  791.     Ballantine  v.  Frelinghuysen, 

J.  Eq.,  791.  38  N.  J.  Eq.,  266.    Paul  v.  Wilson, 

loWild  V.  Davenport,  48  N.  J.  79  N.  J.  Eq.,  204. 
L.,  129.    Doolittle  V.  Wilkt,  57  N. 


Duties  and  Liabilities  of  Executors,  Etc.         ^j^ 

dermen  with  the  trade  debts  ;^-  but  debts  contracted  by  the  tes- 
tator himself  in  the  conduct  of  the  business  are  payable  out 
of  the  general  assets  of  the  estate/^ 

,    Partnership. 

A  provision  in  articles  of  partnership  that  on  the  death 
of  a  partner  his  executor,  or  personal  representative,  or  some 
other  person,  shall  be  entitled  to  the  place  of  such  deceased 
partner  in  the  firm,  with  the  capital  of  the  deceased  in  the 
firm's  business,  or  some  part  of  it,  is  binding  upon  the  surviv- 
ing partner  to  admit  the  executor,  personal  representative  or 
nominee  of  the  deceased  partner,  but  does  not  bind  the  latter 
to  come  in ;  he  has  an  option  to  come  in  or  not,  and  a  reason- 
able time  within  which  to  elect.  An  executor  coming  in  under 
such  a  provision  in  partnership  articles  comes  in  as  a  partner, 
with  all  the  rights  and  liabilities  of  a  partner,  and  consequently, 
as  said  above,  becomes  personally  liable  for  debts  contracted 
in  the  business.^*  On  the  other  hand,  a  stipulation  in  part- 
nership articles,  that  upon  the  death  of  a  partner  his  capital 
shall  remain  in  the  business  until  the  expiration  of  the  pre- 
scribed term  of  the  partnership,  is  binding  as  well  upon  the 
estate  of  the  deceased  as  upon  the  surviving  partner.  Under 
such  circumstances  the  control  of  the  business  is  with  the  sur- 
viving partner,  and  the  executor  cannot  withdraw  the  capital 
of  the  deceased  partner. ^^ 

Liability  of  Executors. 

In  continuing  decedent's  business  without  authority,  an  ex- 
ecutor assumes  the  risk  of  loss  therein  from  any  cause,  includ- 
ing payment  for  his  services  or  additional  expense  in  settling 
his  accounts. ^"^  Legatees  cannot  be  required  to  pay  him  com 
pensation  for  services  in  conducting  the  business,  or  expenses 
in  settling  its  accounts,  including  counsel  fees  incurred  by  liti- 

i2Laible  v.  Ferry,  32  N.  J.  Eq.,  i^Wild   v.  Davenport,   48  N.  J. 

59I-.  L.,  129.     Braddock  v.  Hinchman, 

laPaul  V.  Wilson,  79  N.  J.  Eq.,  78  N.  J.  Eq..  270.           :;.,'     i-  ;' 

204.  i«Gilligan  v.  Daly,  79  N.  J.  Eql, 

'*Wild   V.   Davenport,  48  N.  J.  36.                                   ;  i^.  '   ;  ,!vl 

L.,  129.  '<■'''  •■h'  ■                    HficTlA     .<)o5 


374  Probate  Law  and  Practice. 

gation  necessary  in  settling  the  accounts,  from  property  other 
than  that  coming  to  his  hands.^^  So  where  a  business  continued 
without  authority  by  an  executor  after  testator's  death,  though 
mortgaged,  had  a  substantial  value  when  taken  over  by  him, 
but  was  afterwards  sold  by  him  for  a  nominal  price,  the  ex- 
ecutor is  chargeable  for  any  further  claim  on  the  mortgage 
debt,  if  the  purchaser  did  not  assume  it/** 

As  a  rule,  the  beneficiaries  may  either  charge  an  executor 
continuing  decedent's  business  without  authority  with  the  value 
of  the  estate  and  interest,  or,  at  their  option,  with  the  net  profit 
realized,  they  being  entitled  to  an  accounting  of  profits  to  de- 
termine which  they  shall  elect.  In  estimating  the  net  profits 
of  a  business  continued  by  an  executor  without  authority,  in 
order  to  charge  him  therewith,  only  profits  resulting  from  the 
employment  of  testator's  estate  should  be  considered,  making 
allowance  for  the  business  skill  and  credit  of  the  executor  in 
conducting  the  business.^''  So  administrators  are  chargeable 
with  the  net  profits  of  a  milk  route  owned  by  their  decedent, 
during  the  time  the  business  continued  to  be  carried  on  after 
the  taking  out  of  letters,  down  to  the  sale  of  the  personal 
property  of  the  estate.-'^ 

CONTRACTS  OF  EXECUTORS,  &c. 

Liability  of  Executor. 

An  executor  or  administrator  cannot  bind  his  decedent's 
estate  by  contract  or  negotiable  instrument;  and  if  he  signs 
such  an  instrument,  even  though  he  describes  himself  therein 
as  executor  or  administrator,  and  the  same  is  entered  into  by 
him  for  the  benefit  of  the  estate  he  represents,  he  will  be  per- 
sonally liable  thereon.-^  A  person,  therefore,  who  advances 
money  to  an  executor  or  administrator,  acquires  no  right  either 

i^Gilligan  V.  Daly,  79  N.  J.  Eq.,  ^iDo^little  v.  Willett,  57  N.  J. 

36.-  L.,  398.    Hellier  v.  Lord,  55  N.  J 

^sGilligan  v.  Daly,  79  N.  J.  Eq.,  L.,    367.      DeConcillio    v.    Brown- 

36.  rigg,  SI  N.  J.  Eq.,  532.     Laible  v. 

isGilligan  v.  Daly,  79  N.  J.  Eq.,  Ferry,  32  N.  J.  Eq.,  791.    WiW  v 

36.  Davenport,   48   N.   J.    L.,    129. 

-^Merchant's  Case,  39  N.  J.  Eq., 
506.    Affirmed.  41  N.  J.  Eq..  349. 


Duties  and  Liabilities  of  Executors,  Etc.         375 

at  law  or  in  equity,  as  against  the  estate.  His  equity  only  arises 
in  case  the  money  advanced  has,  in  fact,  been  applied  to  the 
payment  of  debts  for  which  the  estate  was  justly  and  legally 
bound.  In  such  cases,  the  creditor  of  the  administrator  will 
be  permitted  to  take  the  latter's  place,  and  will  be  subrogated 
to  his  rights,  but  precedent,  as  well  as  sound  policy,  require 
that  it  should  be  shown  by  the  clearest  evidence  that  the  estate 
has  been  benefited,  or,  in  other  words,  that  the  money  has  been 
applied  to  the  payment  of  debts.--  So  where  a  guardian  gave 
a  personal  order  for  goods  for  his  wards,  expecting,  to  the 
knowledge  of  the  seller,  to  pay  for  them  from  funds  in  his 
hands  as  guardian,  such  fact  will  not  relieve  him  of  personal 
liability  therefor.-^ 

EMPLOYMENT  OF  AGENTS,  &c. 
In  General, 

An  executor  may  employ  and  pay  from  the  estate  such  as- 
sistants as  are  necessary  in  transacting  the  business  of  the 
estate.-*  So  where  an  administrator  employed  a  society  to 
obtain  money  from  intestate's  debtor  in  Germany,  and  received 
one-half  of  the  proceeds,  the  balance  being  remitted  to  intestate's 
father,  he  was  entitled  to  credits  for  money  paid  the  society  for 
obtaining  the  money  and  for  sums  expended  in  taking  the  pro- 
ceedings necessary  to  compel  the  father  to  pay  over  the  money 
irregularly  remitted  to  him.--^  So,  where  executors  were  in- 
vested with  a  power  to  sell  a  factory  belonging  to  decedent's 
estate,  they  had  authority  to  pay  the  expenses  of  the  superin- 
tendence of  the  factory  until  they  were  able  to  make  the  sale.-'' 
So,  executors  will  be  allowed  the  reasonable  charges  paid  by 
them  to  an  agent  employed  in  the  management  of  the  estate, 
if  the  circumstances  rendered  the  employment  of  such  agent 
beneficial  to  the  estate,  and  this  whether  the  employment  of  an 

22DeConcilHo  v.  Brownrigg,  51  24pari^er   v.   Johnson,   yj   N:  J. 

N.  J.  Eq.,  532-535-    First  National  Eq.,  366. 

Bank  v.  Thompson,  61  N.  J.  Eq.,  -sprey's  Case,  T},  N.  J.  Eq;,  346. 

^°°-  -'^Howard   v.   Francis,  30  N.  J. 

23Gallagher  v.  McBride,  66  N.  J.  Eq.,  444. 
L.,  360. 


376  Probate  Law  and  Practice. 

agent  is  authorized  by  will  or  not  f  but  executors  cannot  em- 
ploy one  of  their  own  number  as  a  clerk  and  allow  him  a 
salary,-*  and  they  will  not  be  allowed  for  money  paid  to  assist- 
ants for  such  work  as  they  in  contemplation  of  law  are  bound 
to  perform  themselves.-^ 

Detective's  Services. 

A  claim  for  services  rendered  by  a  detective  employed  by 
the  counsel  of  the  principal  legatee,  such  services  being  valuable 
in  establisl^ing  the  will,  may  be  allowed.^" 

Broker's  Commissions. 

Where  executors  empowered  to  sell  real  estate  of  the  tes- 
tator employ  real  estate  agents  to  procure  purchasers  of  real 
estate,  the  commissions  paid  to  such  agents  may  be  allowed.^^ 
The  court  will,  however,  take  into  consideration  commissions 
so  paid  for  services  by  others,  in  fixing  the  compensation  of  ac- 
countant.^^ 

Accountant's  Services. 

It  is  the  duty  of  executors  and  administrators  to  keep  ac- 
counts, and  to  render  an  account  of  their  trusteeship  at  the 
times  required  by  law ;  their  commissions  compensate  them 
for  this  work,  and  they  will  not  be  allowed  for  the  expenses  of 
an  accountant.^^ 

-'McWhorter  v.  Benson,  Hopk.  — For     Services     in     Performing 

Ch.,  28.     Van  Derheyden  v.  Van  Representative's    Duties,"    p.    408, 

Derheyden,  2  Paige  Ch.,  287.    Will-  infra, 

cox  V.  Smith.  26  Barb.,  316,  330.  ^''Lewis's  Case,  35  N.  J.  Eq.,  99. 

-^Lent  V.  Howard,  89  N.  Y.  169,  •''iBrown    v.    Brown,    72    N.    J. 

179.  Eq.,  667.  In  re  Wiley,  65  Atl.  Rep., 
29Wolfe's    Case,   34   N.   J.    Eq.,  212.    Dey  v.  Codman,  39  N.  J.  Eq., 

223-227.      Kingsland    v.    Scudder,  258.      Babbitt    v.    Fidelity    Trust 

36  N.  J.  Eq.,  284-286.     Personette  Co.,  72  N.  J.  Eq.,  745. 

V.    Johnson,    40    N.    J.    Eq.,    173-  ssgabbitt  v.  Fidelity  Trust  Co., 

180.  Hurlbut  V.  Hutton,  44  N.  J.  72  N.  J.  Eq.,  745. 

Eq.,  302.     Pyatt  v.  Pyatt,  44  N.  J.  ^sWoIfe's    Case,    34    N.   J.    Eq., 

Eq.,  491-495.  Reversed,  46  N.  J.  223.  Pyatt  v.  Pyatt,  44  N.  J.  Eq.. 
Eq.,  285.     And  see  "Counsel  Fees       491.    Reversed,  46  N.  J.  Eq.,  285..  . 


Investments.  z17 

Expenses  of  Safe-Keeping  of  Securities. 

The  expenses  incident  to  the  safe-keeping  of  the  securities 
of  the  estate  are  compensated  for  by  the  commissions  allowed 
the  administrator,  and  he  will  not  be  allowed  in  his  account 
for  moneys  expended  by  him  for  that  purpose.^* 

INVESTMENTS. 

By  Executors  or  Administrators. 

The  general  duties  of  an  executor  or  administrator  are  to 
collect  the  effects  of  decedent,  to  pay  the  claims  against  his 
estate,  and  to  distribute  the  residue  to  those  entitled  thereto.  It 
is  therefore  apparent  that  it  is  no  part  of  his  duty  to  invest  funds 
belonging  to  the  estate."^  It  sometimes  happens,  however,  that 
duties  are  imposed  upon  executors  by  will,  in  addition  to  those 
above  enumerated,  the  performance  of  which  requires  them 
to  invest  the  funds  of  the  estate.  In  such  case,  however,  even 
though  they  are  called  executors  throughout  the  will,  they  are 
in  fact  acting  as  trustees,  even  if  otherwise  intended  by  the 
testator,  as  it  is  impossible  to  alter  in  any  respect  the  sub- 
stantial qualities  and  attributes  of  the  office  which  was  in  fact 
created  by  the  will.  No  matter  what  the  designation  in  the  will 
may  be,  the  character  of  the  ofifice — executor  or  trustee^will 
be  determined  by  the  character  of  the  estate  confided  to  and 
the  powers  to  be  exercised  by  the  representative  of  the  de- 
ceased.'^ 

DUTY  TO  INVEST. 

In  General. 

Executors,  administrators,  guardians  or  trustees,  required  to 
retain  money  in  their  hands  shall  put  it  at  interest,  or  apply 
to  the  orphans'  court  for  an  order  so  to  do ;  and  in  case  they 
shall  not  be  able  to  find  proper  investment  therefor,  they  shall 
report  the  fact  to  the  court  within  sixty  days  after  they  shall 
have  received  it,  or  after  they  shall  be  required  to  retain  it 

3<Hartson  v.  RIden,  58  N.  J.  Eq.,  sepjtney   v.    Everson,   42    N.   J. 

478.  Eq.,  361-366.    In  re  Kibbler's  Case, 

"^In  re  Kibbler's  Case,  78  N.  J.  78  N.  J.  Eq..  217-220. 
l-'.q.,  217. 


378  Probate  Law  and  Practice. 

or  to  invest  it ;  and  in  case  of  their  neglect  so  to  do,  they  shall 
be  accountable  for  the  interest  thereon.^' 

NATURE  OF  INVESTMENT  OR  SECURITY. 

Statutory  Provisions. 

Any  executor,  administrator,  guardian  or  trustee  whose 
duty  it  may  be  to  loan  or  invest  money  intrusted  to  him  as  such, 
may,  without  any  special  order  of  any  court,  invest  the  same  or 
any  part  thereof  in  any  of  the  following  securities : 

United  States  Bonds. — In  bonds  or  interest-bearing  notes 
or  obligations  of  the  United  States,  or  those  for  which  the 
faith  of  the  United  States  is  distinctly  pledged  to  provide  for 
the  payment  of  the  principal  and  interest  thereof; 

State  Bonds. — In  bonds  or  interest-bearing  notes  or  obliga- 
tions, of  this  state ; 

Bonds  of  Other  States. — In  bonds  of  any  state  in  the  union 
which  has  not  within  ten  years  previous  to  the  making  of  such 
investment  defaulted  in  the  payment  of  any  part  of  either  prin- 
cipal or  interest  on  any  of  its  bonds  issued  by  authority  of  the 
legislature  of  such  state; 

Municipal  or  School  Bonds. — In  the  bonds  or  interest-bear- 
ing notes  or  obligations  of  any  county,  city,  town,  township, 
borough,  village  or  public  school  district  of  this  state  issued 
pursuant  to  the  authority  of  any  law  of  this  state,  or  of  the  city 
of  New  York  or  of  the  city  of  Philadelphia;  provided,  the 
indebtedness  of  the  county,  city,  town,  township,  borough  or 
village  does  not  exceed  in  the  aggregate  fifteen  per  centum  of 
the  assessable  valuation  of  all  taxable  property  within  such 
county,  city,  town,  township,  borough  or  village,  exclusive 
of  obligations  issued  for  public  school  purposes ; 

Railroad  Bonds. — In  first  mortgage  bonds  of  any  railroad 
company  which  has  paid  dividends  of  not  less  than  four  per 
centum  per  annum  regularly,  on  its  entire  capital  stock,  for  a 
period  of  not  less  than  five  years  next  previous  to  the  purchase 
of  such  bonds,  or  in  any  consolidated  mortgage  bonds  of  any 
such  company  authorized  to  be  issued  to  retire  the  entire 
bonded  debt  of  such  company. 

3^0rphans'   Court   Rule  25. 


Investments.  379 

Bonds  Secured  by  First  Mortgages;  Exceptions. — In  bonds 
secured  by  first  mortgage  upon  real  estate  :  provided,  the  amount 
loaned  upon  any  such  bond  and  mortgage  shall  not  at  the  time 
of  making  such  loan  exceed  sixty  per  centum  of  the  estimated 
worth  of  the  real  estate  covered  by  such  mortgage ;  provided, 
also,  that  the  rate  of  interest  upon  any  of  the  above  enumerated 
securities  in  which  such  investments  may  be  made  shall  not  be 
less  than  three  per  centum  nor  more  than  six  per  centum  per 
annum;  this  act  shall  not  apply  where  the  deed  of  trust,  or  the 
last  will  and  testament  of  any  testator,  or  any  court  having 
jurisdiction  of  the  matter  specially  directs  in  what  securities 
the  trust  funds  shall  be  invested,  and  every  such  court  is  hereby 
given  power  to  specially  direct  by  order  or  orders,  from  time  to 
time,  additional  securities  in  its  discretion  in  which  trust  funds 
may  be  invested  and  any  investment  thereof  made  in  accord- 
ance wuth  any  such  special  direction  shall  be  legal,  and  no  ex- 
ecutor, administrator,  guardian  or  trustee  shall  be  held  liable 
for  any  loss  resulting  in  any  such  case.''^ 

A  supplement  to  this  section  provides  that  any  executor, 
administrator,  guardian,  or  trustee,  whose  duty  it  may  be  to 
loan  money  intrusted  to  him,  in  addition  to  the  securities  in 
which  he  may  invest  the  same  under  the  provisions  of  the  act 
to  which  this  is  a  supplement,  may  invest  the  same  in  any  loans 
or  securities  in  which  savings  banks  of  this  state  may  invest 
their  funds  by  the  provisions  of  any  general  law  of  this 
state.^^ 

In  General. 

Executors,  administrators,  guardians  or  trustees  have  no 
right,  without  authority  from  a  competent  court,  to  invest  the 
funds  of  an  estate  otherwise  than  authorized  by  statute.*'' 
This  section,  however,  merely  designates  in  what  securities 
executors  may  invest  without  the  consent  of  the  court,  and  does 

380rphans'  Court  Act,  sec.  137,  <'>Tucker  v.  Tucker,  33  N.  J.  Eq., 

as  amended  by  P.  L.  1907,  p.  3^3-  235.     Affirmed,  34  N.  J.  Eq.,  292. 

3  Comp.  Stat.,  p.  3864,  sec.  137.  Williams  v.  Williams,  35  N.  J.  Eq.. 

'»P.  L.  1913,  p.  447.    See  also  2  100. 
Comp.  Stat.,  p.  2272.  sec.  37. 


380  Probate  Law  and  Practice. 

not  Hmit  the  court  as  to  secuniits  f^  yet,  to  afford  complete 
indemnity  to  the  executors  against  the  hazard  of  responsibiUty 
for  loss,  investments  must  be  made  in  the  securities  designated 
by  the  statute.*- 

Executor,  &c.,  May  Continue  Testator's  Investments. 

Whenever  any  testator  shall  have  made,  in  his  lifetime,  any 
investment  of  money  in  municipal  bonds  or  on  bond  secured 
by  mortgage,  or  in  the  bonds  or  stock-shares  of  any  corpora- 
tion, and  the  same  bonds,  mortgages  or  stock-shares  shall 
come  or  shall  have  come  into  the  hands  of  the  executor  of  or 
trustee  under  the  will  of  such  testator  or  of  the  administrator 
with  the  will  annexed,  to  be  administered,  and  such  executor, 
administrator  or  trustee  may,  in  the  exercise  of  good  faith  and 
reasonable  discretion,  have  continued  such  investment,  or  may 
hereafter  continue  the  same,  he  shall  not  be  accountable  for  any 
loss  by  reason  of  such  continuance.^^  If  the  trustee  is  doubtful 
as  to  the  propriety  of  continuing  to  hold  any  of  the  invest- 
ments of  his  testator,  he  may  make  application  to  the  orphans' 
court  for  directions  as  to  his  duty  in  the  premises.^*  The  act 
also  provides  that  it  shall  not  apply  where  the  deed  of  trust 
or  the  last  will  and  testament  of  any  testator,  or  any  court 
having  jurisdiction  of  the  matter,  specially  directs  in  what 
manner  the  trust  funds  shall  be  invested.*^ 

This  enactment  has  been  held  to  be  retroactive  and  to  apply 
to  investments  made  before  the  passage  thereof.*^ 

Application  of  Statute. 

Executors  and  trustees,  who,  in  the  exercise  of  good  faith 
and  reasonable  discretion,  continue  to  hold  stocks  and  bonds 
bequeathed  by  the  testator,  will  be  protected  from  any  loss  by 

'♦^Tucker   v:    Tucker.    33    N.    J.  ^^See  "Power  of  Orphans' Court 

Eq.,  235.     Affirmed,  34  N.  J.  Eq.,  to    Order   Continuance   of   Testa- 

?92.  :  tor's  Investments,"  p.  390,  infra. 

*2pufford  V.  Smith,  46  N.  J.  Eq.,  ^^p    l    1899,  p.  236,  sec.  3.     2 

216.  ,  Brewster  v.  Demarest*  48  N.  Comp.  Stat.,  p.  2271,  sec.  36. 

J.  Eq.,  559.  *« Parker  v.  Glover,  42  N.  J.  Eq.. 

<3P.   L.   1899,   p.   36",   sec.    I.     2  559. 
Comp.  Stat.,  p.  2271,  sec.  34. 


Investments.  381 

the  statute.*'  So  where  testator  made  an  investment  in  stock, 
and  the  executor  continued  such  investment,  and  such  stock 
subsequently  depreciated  in  value  by  reason  of  loss  by  fire,  the 
executor  was  held  not  chargeable  with  the  loss  ;*®  but  the  fact 
that  securities  coming  to  the  hands  of  a  trustee  from  the  estate 
of  his  testator  have  steadily  depreciated  in  value  from  the  tak- 
ing of  the  trust  until  such  depreciation  amounted  to  nine-tenths 
of  such  value,  makes  a  prima  facie  case  against  the  trustee  for 
lack  of  good  faith  or  failure  to  exercise  reasonable  discretion, 
and  calls  for  an  explanation  by  him  of  his  action  in  holding  the 
securities  through  such  depreciation.  The  mere  fact  that  there 
was  a  shrinkage  in  the  securities  would  not  have  given  rise 
to  any  inference  of  lack  of  good  faith,  or  of  failure  to  exercise 
reasonable  discretion  on  the  part  of  the  trustee ;  it  is  the  ex- 
traordinary shrinkage  of  those  securities,  taking  place  under 
the  eyes  of  the  trustee,  not  sudden  in  their  decline,  but  gradual, 
until  some  of  them  had  lost  ninety  per  cent,  of  their  value, 
and  that  they  were  still  held  by  the  trustee,  when  he  might  have 
disposed  of  them  to  the  great  advantage  of  the  estate,  which 
calls  for  an  explanation.**^ 

LIABILITY  OF  EXECUTORS,  ETC.,  IN  CASE  OF  LOSS. 
In  General. 

In  assuming  his  duties,  where  not  controlled  by  statutes, 
rules  of  court  or  provisions  in  the  will,  an  executor  or  other 
trustee  is  not  bound  to  extraordinary  care,  nor  is  he  an  in- 
surer against  loss  under  all  circumstances.  If  he  is  careful, 
faithful  and  discreet,  the  duty  imposed  on  him  by  law  will  be 
discharged;^''  but  it  is  a  well  settled  rule  that  if  executors,  ad- 
ministrators, guardians  or  trustees  loan  money  upon  their  own 

*7Brown  v.  Brown,  72  N.  J.  Eq..  «Beam    v.    Paterson    Safe    De- 

667.  posit  &  Trust  Company,  81  N.  J. 

<*Coddington  v.  Stone,  36  N.  J.      Eq.,  195. 
Eq.,  361 ;   see  also  Parker  V.  Glov-  s^Monroe  v.  Osborne,  43  N'.  J. 

er,  42  N.  J.  Eq.,  559-  Eq.,  248.     Beam  v.  Paterson  Safe 

Deposit,  &c.,  Co.,  83  N.  J.  Eq.,  628. 
•i-    ,]-■•      .      ■^'.    ..i 
;  .1  .1,  M  bt>.  .ilur.u: 


382  Probate  Law  and  Practice. 

responsibility  upon  securities  other  than  those  mentioned  in 
the  act,  they  are  liable  in  case  of  loss.^^ 

The  fact  that  in  making  an  investment  upon  security  other 
than  one  of  those  designated  in  the  act  the  trustee  acted  in 
good  faith  will  not  protect  him.  So  where  an  executrix  and 
trustee,  in  good  faith,  loaned  money  of  the  estate  with  some 
of  her  own  on  the  borrower's  promissory  note,  secured  by  a 
policy  of  insurance  on  his  life,  and  he  failed  to  pay  the  subse- 
quent premiums,  and  she  afterward  surrendered  the  policy  for 
a  paid-up  one  of  one-fourth  the  amount  of  the  original,  the 
borrower  being  insolvent,  it  was  held  that  she  was  personally 
liable  to  the  estate  for  the  full  amount  of  the  loss.^- 

The  fact  that  an  improper  investment  made  by  an  executor 
is  stated  in  his  accounts  in  the  orphans'  covirt  will  not  exoner- 
ate him  f^  but  where  an  executor,  acting  in  good  faith  and 
under  the  advice  of  counsel,  retained  a  trust  fund  after  it  was 
payable  to  one  entitled  to  it  by  the  will,  and,  in  good  faith,  in- 
vested it,  after  a  time  when  it  should  have  been  paid  over,  in 
a  mortgage  on  property,  then  worth  three  times  the  amount  of 
the  loan,  but  which  later  so  depreciated  in  value  that  the  execu- 
tor was  obliged  to  buy  it  under  foreclosure,  in  order  to  pro- 
tect the  fund,  it  was  held  that  he  was  guilty  of  no  breach  of 
trust,  and  that  he  should  be  allowed  to  turn  over  the  land  in 
lieu  of  the  fund.^* 

When  Liability  Limited  by  Will. 

The  liability  imposed  upon  and  accepted  by  a  trustee  may  be 
limited  by  the  terms  of  the  instrument  creating  the  trust.  If 
there  is  such  a  clause  of  limitation,  the  rule  for  measuring  the 
trustee's  liability  is  to  be  sought  in  that  clause,  properly  con- 
strued. In  construing  such  a  clause,  the  meaning  to  be  at- 
tributed to  it  should  be  consistent  with  the  purpose  and  object 

5iVreeland  v.  Vreeland,  16  N.  J.  52Sherman   v.   Lanier,  39  N.  J. 

Eq.,  512.     Perrine  v.  Petty,  34  N.  Eq.,  249. 

J.  Eq.,   193.     Sherman  v.   Lanier,  ^spgrrine  v.  Petty,  34  N.  J.  Eq.. 

39  N.  J.  Eq.,  249.     Craven's  Case,  193. 

43    N.    J.    Eq.,    416.      Duflford    v.  5*Perrine  v.  Vreeland,  33  N.  J. 

Smith,  46  N.  J.  Eq.,  216.     Brew-  Eq..  102.    Affirmed,  ib.,  596.     Por- 

ster  V.  Demarest,  48  N.  J.  Eq.,  559.  ter  v.  Woodruff,  36  N.  J.  Eq.,  174. 


Investments.  383 

of  the  trust,  and  a  strict  rule  of  construction  should  be  applied 
as  against  the  claims  of  restriction;  but  if.  when  so  construed, 
a  limitation  on  the  liability  of  the  trustee  was  clearly  intended, 
the  trustee  is  entitled  to  the  benefit  of  it.  So  a  clause  which 
exempts  from  all  liability,  except  for  wilful  and  intentional 
breaches  of  trust,  will  not  exonerate  the  trustee  from  all 
breaches  of  trust  except  such  as  the  trustee  commits  with  a 
view  to  his  personal  advantage.  It  is  obvious  that  such  a  con- 
struction adds  terms  to  the  clause  not  contained  therein,  and 
inconsistent  with  its  plain  purpose.  It  is  a  breach  of  trust  for 
the  trustee  to  speculate  with  trust  funds  for  his  own  account, 
but  it  is  no  less  a  breach  of  trust  to  make  unauthorized  in- 
vestments, or  to  take  speculative  risks,  though  for  the  benefit  of 
the  fund  and  not  of  the  trustee.  To  do  so  knowingly  is  a  wilful 
and  intentional  breach  of  trust.  So  it  is  a  wilful  and  inten- 
tional breach  of  trust,  within  the  meaning  of  such  a  clause,  to 
knowingly  do  any  act  hazarding  trust  funds  in  violation  of  a 
duty  imposed  on  the  trustee ;  and  he  will  not  be  protected  by 
such  an  indemnity  clause.^^ 

Second  Mortgages. 

An  executor  should  not,  as  a  general  rule,  invest  in  second 
mortgages.  If  he  does,  he  takes  the  risk  of  being  personally 
answerable,  in  case  loss  ensues.  He  is  not,  however,  liable 
simply  because  he  has  made  such  an  investment,  if  no  loss  has 
been  sustained,  and  in  the  absence  of  evidence  that  any  will  be 
sustained. ^"^  The  mere  taking  of  a  second  mortgage  is  not 
a  breach  of  trust.  There  are  cases  where  the  taking  of  such 
mortgages  might  be  judicious,  and  under  some  circumstances  it 
is  possible  an  investment  therein  might  be  proper ;  but  to  jus- 
tify the  investment  of  the  funds  of  an  estate  in  such  securities, 
there  should  exist  peculiar  circumstances  which  nianifostlv 
justify  such  a  departure  from  a  safe  rule.'" 

"Tuttle    V.    Gilmore,    36    N.    J.  Tuttlc,    32    N.    J.    Eq.,    611.      Rt- 

liq.,  617.    Babbitt  v.  Fidelity  Trust  versed,  36  N.  J.  Eq.,  617.     Mon- 

Co.,  72  N.  J.  Eq.,  745.  roe  v.  Osborne,  43  N.  J.  Eq.,  248. 

sePorter  v.  Woodruff,  36  N.  J.  s^Tuttle  v.  Gilmore,  36  N.  J.  Eq., 

Eq.,  174,  186.     Sherman  v.  Lanier,  617-623.      Sherman    v.    Lanier,   39 

39  N.  J.  Eq..  249,  255.    Gilmore  v.  N.  J.  Eq.,  249. 
26 


384.;,  Probate  Law  and  Practice. 

Each  case  must,  however,  stand  on  its  own  circumstances, 
but  the  general  rule,  applicable  to  all  cases,  is,  as  has  been 
seen,  that  a  trustee  must  use  the  same  care,  skill,  diligence  and 
prudence  in  the  management  of  the  tfust,  and  his  dealings  with 
the  trust  property,  that  a  man  of  ordinary  care,  skill  and 
prudence  would  use  in  his  own  transactions  and  with  his  own 
property  under  like  circumstances/'®  Thus,  the  act  prescribing 
the  character  of  securities  to  be  taken  by  executors  and  trus- 
tees in  loaning  money  intrusted  to  them  has  been  held  not  to 
apply  to  a  mortgage  taken  by  an  executor  to  secure  a  part  of 
the  purchase  money  on  a  sale  of  lands  as  directed  or  authorized 
by  testator's  will/^  So  where  testator  ordered  that  his  farm 
should  be  sold  to  the  best  advantage  and  highest  bidder,  one- 
third  of  the  purchase  money  being  secured  by  bond  and  mort- 
gage, with  the  interest  payable  to  his  wife  for  life,  and  referred 
to  this  money  "as  secured  on  the  farm  for  her  benefit,"  and 
charged  it  with  the  payment  of  her  debts  and  funeral  expenses, 
and  gave  the  balance  to  his  children,  it  was  held  that  the  will 
did  not  require  a  first  mortgage  lien  on  the  amount  of  the 
third  of  the  purchase  money  but  that  if  the  executors  were  able 
to  procure  a  more  advantageous  sale  for  the  farm  by  taking 
a  second  mortgage  for  the  one-third  of  the  purchase  money, 
they  were  justified  in  so  doing.'^*' 

The  true  test  in  considering  the  sufficiency  of  a  security  in 
which  a  trust  fund  is  invested  is  the  price  which  the  property 
would  bring  at  a  forced  sale."^ 

Personal  Security. 

A  trustee  is  not  permitted  to  loan  money  of  the  estate  upon 
the  personal  security  of  the  borrower.  Such  loans  are  at  the 
risk  of  the  trustee,  who  is  personally  answerable  if  .the  se- 

ssTuttle  V.  Gilmore.  32  N.  J.  Eq..  «oCumberland  Trust  Co.  v.  Pad- 

611.     Reversed,  36  N.  J.  Eq.,  617.  gett,  70  N.  J.  Eq.,  349-     See  also, 

Monroe  v.  Osborne,  43  N.  J.  Eq.,  Woodruff  v.  Lounsberry, '40  N.  J. 

248.  Eq.,  545- 

ssCumberland  Trust  Co.  v.  Pad-  "iPerrme  v.  Petty,  34  N.  J.  Eq., 

gett,  70  N.  J.  Eq.,  349-  I93- 


Investme^nts.  385 

curity  prove  defective  and  loss  ensues.^-  So  where  an  ex- 
ecutor, without  authority,  lends  a  fund  to  his  co-executor  on 
inadequate  security,  he  will  be  held  liable  for  the  amount  of 
the  principal  and  compound  interest  f'-^  and  so  where  he  per- 
mits his  co-executor  to  borrow  funds  of  the  estate,"^  or  to  bor- 
row them  for  his  firm."'''  It  is  otherwise,  however,  where  such 
loan  is  without  his  knowledge  or  consent.""^ 

Corporate  Stocks  and  Bonds. 

A  trustee  has  no  authority  to  invest  any  part  of  the  estate 
in  bank  stock,  without  authority  from  the  court,  and  he  is  liable 
for  any  losses  by  reason  of  such  investments."' 

Municipal  Bonds. 

A  trustee  who  invests  funds  of  the  estate  in  municipal  bonds, 
other  than  those  authorized  by  \a.\v,  will  be  liable  for  any  loss 
w'hich  the  estate  may  suffer  by  reason  of  such  investment.*^* 

Mortgages  on  Lands  in  Other  States. 

The  general  rule  is  that  investments  beyond  the  jurisdic- 
tion of  the  court  will  not  be  sustained,  unless  in  rare  and  ex- 
ceptional cases,  and  under  very  unusual  and  peculiar  cir- 
cumstances. This  rule  should,  however,  not  be  made  arbitrary 
and  inflexible,  and  so  rigid  as  to  admit  of  no  possible  excep- 
tions,  for  it  is  merely  an  outgrowth  or  consequence  of  the 

*^-Gray  v.  Fox,  i  N.  J.  Eq.,  259.  •"•"Wilmerding  v.  McKesi^on,  10,^ 

Vreeland    v.    Vreeland,    16    N.    J.  N.  Y.,  329.     Matter  of   Cocks,    1 

Eq.,  512.     Perrine  v.  Petty,  34  N.  Connoly,  347,  9  N.  Y.   Sup..  462, 

J.   Eq.,    193.     Sherman   v.   Lanier.  and    see   "Liability   of   Co-Execu- 

39  N.  J.  Eq.,  249.     Craven's  Case,  tors  for  Acts  of  Each  Other."  p. 

43    N.    J.    Eq.,    416.      Dufford    v.  416,  infra. 

Smith,  46  N.  J.  Eq.,  216.     Brew-  -fi'Tucker    v.    Tucker,    33    N.   J. 

ster    V.    Demarest,    48    N.    J.    Eq..  l^q.,  235.     Affirmed.  34  N.  J.  Eq., 

559.  292.     Woodruff  V.  T<ounsberry,  40 

03 Perrine  v.  Petty.  34  N.  J.  Eq.,  N.   J.   Eq.,   545-      Affirmed.   42   N. 

193.  J.  Eq.,  699- 

o^Matter  of  Cozzens,  2  Connoly,  o*Tucker  v.  Tucker.  33  N.  J.  Eq.. 

622.  IS  N.  Y.  Sup..  771.  235.     Affirmed.  34  N.  J.  Eq.,  292. 

"■'Estate    of    Daly,    i    Tuck..   95.  Woodruff  v.  Lounsh^rry,  '40  N.  J. 

Wilmerding  v.  McKesson,   103  N.  Eq.,  545.     Affirmed.  42  N.  J.  Eq., 

Y..  329.  699. 


386  Probate  Law  and  Practice. 

broader  rule  that  a  trustee  in  making  investments  is  to  employ 
such  diligence  and  such  prudence  as  prudent  men  of  discre- 
tion and  intelligence  in  such  matters  employ  in  their  own  like 
affairs.*'^  In  a  case  where  the  estate  in  the  hands  of  trus- 
tees is  very  large,  and  in  the  fair  discretion  of  the  executors 
some  of  the  investments  must  probably  be  large,  unless  mort- 
gages are  excluded  altogether,  and  such  loans  were  not  readily 
jjrocurable  except  in  a  large  city,  it  was  held  that  trustees  were 
justified  in  taking  mortgages  upon  New  York  City  property Z** 
On  the  other  hand,  in  the  case  of  McCuUougJi  v.  McCul- 
loitgh/^  where  the  trustees  resided  in  Minnesota,  although  act- 
ing under  a  will  admitted  to  probate  in  this  state,  where  they 
would  be  required  to  account,  and  the  ccstuis  que  trttsterit  re- 
sided in  this  and  in  other  states  than  Minnesota,  it  was  held, 
under  all  the  circumstances  of  the  case,  that  the  trust  funds 
should  have  been  invested  in  this  state ;  but  it  has  been  held 
that  executors  do  not  commit  a  breach  of  trust  by  investing  in 
New  York  City  mortgages  and  are  not  bound,  at  their  own 
expense,  on  turning  the  estate  over  to  the  trustee,  to  convert  the 
mortgages  into  cash  or  be  responsible  for  a  deficiency,  but  that 
if  the  trustee  claims  the  securities  are  insufficient,  the  court 
should,  before  directing  the  investments  to  be  turned  over, 
inquire  into  and  determine  their  sufificiency  as  investments  of 
the  trust  funds. '- 

Real  Estate. 

A  trustee  must  invest  the  trust  fund  as  directed  by  statute, 
and,  in  the  absence  of  authority  conferred  by  the  will  of  his 
testator,  he  may  not  purchase  real  estate,  and  thereby  burden 
the  trust  fund  with  the  annual  payment  of  taxes,  interest,  in- 
surance, water  rents  and  repairs."" 

f'S'Macy  v.  Mercantile  Trust  Co.,  "Macy  v.  Mercantile  Trust  Co.. 

68  N.  J.  Eq.,  235.  68  N.  J.  Eq.,  235. 

'•Macy  V.  Mercantile  Trust  Co..  ^'Smith   v.   Robinson,  83   N.  J. 

68  N.  J.  Eq.,  235.  Eq.,  384.    Quick  v.  Fisher,  9  N.  J. 

^»44  N.  J.  Eq.,  313.  Eq.,  802. 


Investments.  387 

Testamentary  Directions  as  to  Investments. 

It  is  the  duty  of  the  executors  to  follow  the  directions  of 
their  testator  as  nearly  as  circumstances  will  permit.'^  So 
an  executor  authorized  to  invest  personal  estate  for  the  use 
and  heneht  of  a  grandchild  cannot  purchase  real  estate  there- 
with.'•' 

A  direction  to  invest  "in  productive  funds  ui)on  good  securi- 
ties" means  only  those  that  are  designated  by  law  and  a  dis- 
regard of  such  requirement  renders  the  executor  personally 
liable  in  case  of  loss  or  depreciation.'"  So,  where  a  testator 
vested  his  executors  and  trustees  with  power  to  invest  in  im- 
proved and  productive  real  estate,  or  in  sound  productive  se- 
curities, as  they  might  deem  best,  the  executors  will  not  be 
exonerated  on  investing  money  in  stock  which  depreciated, 
thereby  causing  a  loss  to  the  estate,  as  the  authority  conferred 
did  not  merely  bind  them  to  the  exercise  of  goo^  faith  and 
reasonable  judgment.''  So  where  testator  directed  his  ex- 
ecutors to  invest  certain  funds  in  "first-class  interest-paying 
securities,"  and  at  testator's  death  the  funds  left  by  him  were 
•railroad  stocks  and  bank  bonds,  it  was  held  that  it  was  tes- 
tator's intention  that  the  dividend-paying  stocks  held  by  him 
should  be  sold  and  the  proceeds  invested  on  mortgage ;' ^  but 
a  specific  legacy  may  remain  invested  in  the  stocks  set  apart  and 
designated  for  the  purpose  in  the  will.^*'  Where  trustees  under 
a  will,  who  were  authorized  to  continue  any  investments  of 
the  testator,  hold  legal  title  to  stock  in  a  corporation  which 
pays  very  large  dividends  and  has  accumulated  a  very  large 
surplus,  they  are,  upon  the  declaration  of  an  extraordinarv 
cash  dividend,  justified  in  investing  the  dividends  in  a  new  is- 
sue of  stock  which  the  corporation  at  the  same  time  offers  to  its 
stockholders  at  i)ar.**" 

-■^Voorhees   v.   Stoothoff.    ii    N.  '•''Brown  v.  Brown,  72  N.  J.  Kq., 

J.  L.,  145-  667. 

^•■'Fisher  v.  Quick.  8  N.  J.  Eq.,  '^sWoodruff  v.  Ward,  35   N.  J. 

674.     Affirmed,  ib..  778.     S.  C,  9  Eq.,  467. 

N.  J.  Eq.,  802.  toward  v.  Kitchen,  30  N.  J.  Eq.. 

^"Ward    V.    Kitchen,    30    N.    J.  31. 

Eq.,  31.  sogallantine  v.  Young,  79  N.  J. 

Eq.,  70. 


388  Probate  Law  and  Practice.  - 

A  direction,  "to  fund,"  signifies  to  capitalize  with  a  view  to 
the  production  of  interest;^*'  and  a  gift  of  a  fund  with  its  in- 
crease from  accumulations  amounts  to  a  direction  to  the  ex- 
ecutor to  invest,  and  this  direction  must  be  held  to  apply  to 
the  interest  as  well  as  to  the  principal.®-  A  direction  by  a 
testator  to  invest  in  productive  real  estate  does  not  authorize 
the  executors  to  purchase  vacant  lots  and  erect  buildings  upon 
them  f^'  nor  is  a  lot  of  land  good  for  nothing  except  to  be 
used  in  the  manufacturing  of  brick  "productive  real  estate."®* 
An  executor  authorized  by  the  will  to  purchase  real  estate  for 
investment  cannot  sell  his  own  land  to  himself  as  executor  for 
such  a  purpose.®^ 

Where  an  executor  was  instructed  to  invest  a  sum  sufficient 
to  produce  an  annual  income  of  $i,ooo,  which  was  to  be  paid 
to  a. son  during  his  lifetime,  and  the  executor  invested  a  sum 
which  was  then  sufficient,  but  which  afterwards,  by  reason 
of  a  reduction  in  the  rate  of  interest,  became  insufficient  to 
produce  such  annuity,  it  was  held  that  testator  intended  to 
provide  from  his  estate  the  annuity  for  the  life  of  his  son, 
and  that  the  fact  that  the  son  knew  the  amount  invested  and 
accepted  the  income  thereof  did  not  estop  him  from  objecting 
to  it  as  insufficient.®''  So  a  direction  to  invest  $20,000  in  some 
safe  investment  is  held  to  mean  that  sum  in  money,  not  at  the 
nominal  value  of  the  stocks  or  securities  in  which  the  testator 
had  invested  the  bulk  of  his  estate.®' 

Where  the  will  authorizes  executors  to  invest  as  soon  after 
testator's  death  as  seems  for  the  best  interest  of  the  estate,  it  is 
the  duty  of  the  executor  to  make  temporary  investments  until 
the  trust  can  be  executed.®®     An  executor  apprehending  a  de- 

^^Stephens   v.   Milnor,  24   N.  J.  eciitor    to    Purchase   at    His   Own 

Eq.,  358.  Sale,"  p.  450,  infra. 

s-Fowler  v.  Colt,  22  N.  J.  Eq.,  scMerritt    v.    Merritt,   48   N.   J. 

44-  Eq.,    I.     Affirmed,    51    N.   J.   Eq.. 

s3Holcomb  V.  Coryell,   10  N.  J.  638. 

Eq.,  392.    S.  C,  II  N.  J.  Eq.,  281.  s^Halsted   v.   Meeker,    18   N.  J. 

s*Holcombe  v.  Holcombe,  11  N.  Eq.,  136. 

J.  Eq.,  281.     S.  C,  ib.,  476.  ssHolcombe  v.  Holcombe,  11  X 

«''Holcombe  v.  Holcombe,  11  N.  J.  Eq.,  281.    S.  C,  ib.,  476. 
J.  Eq..  281,  and  see  "Right  of  Ex- 


Investments.         ■<■  ;  389 

preciation  in  the  stocks  in  which  a  specific  legacy  is  vested 
should  protect  the  estate  by  converting  them.*^ 

No  investments  can  be  made  without  the  consent  of  all  of 
several  joint  executors.^'^ 

DIRECTIONS  OF  COURT  AS  TO  INVESTMENTS. 

Executor  May  Seek  Court's  Advice  as  to  Investment  of 
Funds.  ,., .. 

Executors,  administrators,  guardians  or  trustires  may,  by 
direction  of  the  orphans'  court,  put  out  at  interest  all  moneys 
in  their  hands  which  they  are  or  may  be  lawfully  required  to 
retain,  whether  the  same  belong  to  minors,  legatees  or  other 
person  or  persons,  upon  such  security,  and  for  such  length  of 
time  as  the  said  court  will  allow,  and  if  the  security  so  taken, 
J?oiia  fide  and  without  fraud,  shall  prove  insufficient,  it  shall  be 
the  loss  of  the  minors  or  other  person  entitled  thereto,  and  it 
shall  be  the  duty  of  executors,  administrators,  guardians  and 
trustees,  in  cases;  where  the  estates  of  minors  or  other  persons  in 
their  hands  may  be  materially  benefited  thereby,  to  make  ap- 
plication to  the  orphans'  court  for  such  direction,  and  in  case 
they  shall  neglect  so  to  do  they  shall  be  accountable  for  the  in- 
terest that  might  have  been  made  thereby;  but  if  no  person 
who  may  be  willing  to  take  the  said  money  at  interest,  giving 
such  security,  can  be  found  by  the  said  executors,  adminis- 
trators, guardians  or  trustees,  nor  by  an  other  frif^nd  or 
friends  of  such  minors  or  others,  then  the  said  executors, 
administrators,  guardians  or  trustees  shall,  in  such  cases,  be 
accountable  for  the  principal  money  only,  until  it  can  be 
put  out  at  interest  as  aforesaid ;  provided,  ncvertlicless,  that 
in  any  case  where  executors,  administrators,  guardians  or 
trustees  use  the  money  of  minors  or  others  which  shall  come 

89Ward  V.  Kitchen,  30  N.  J.  Eq.,  v.   Hearn,  26   N.  J.   Eq.,  378-382, 

31.  and    see    "Co-Kxecutors — Invest- 

''^'Holcombe  v.  Holcombe,  11  N.  ments,"  p.  415,  infra. 
J.  Eq.,  281.     S.  C,  ib.,  476.    Crane 


390  Probate  Law  and  Practice. 

to  their  hands,  they  shall  be  accountable  not  only  for  the  prin- 
cipal, but  for  the  interest  thereon.^^ 

Powers  o£  Court. 

The  137th  section  of  the  Orphans'  Court  Act,'''  does  not 
limit  the  court  as  to  securities.  It  merely  designates  in  what 
securities  executors,  administrators,  guardians  or  trustees  may 
invest  without  the  consent  of  the  court  ;^^  but  the  only  se- 
curities in  which  the  court  will  ordinarily  authorize  executors, 
administrators,  guardians  or  trustees  to  invest  are  securities 
of  this  state  and  of  the  United  States,  and  landed  securities.^* 

Practice  on  Obtaining  Directions  of  Court  as  to  Invest- 
ment. 

The  proper  course  to  pursue  is  to  obtain  the  leave  and  di- 
rection of  the  court  before  investing  the  money,  and  not  to  put 
out  the  money  first  and  obtain  a  decree  of  confirmation  after- 
wards."^ A  decree  of  the  orphans'  court  approving  all  loans 
previously  made,  without  specification,  will  not  relieve  a  guard- 
ian from  personal  liability ;  the  statute  applies  only  to  fu- 
ture investments  to  be  made  upon  securities  to  be  submitted  to 
and  approved  by  the  orphans'  court."" 

Power  of  Court  to  Order  Continuance  of  Testator's  In- 
vestments. 

Whenever  any  bonds,  mortgages,  stock-shares  or  other  se- 
curities shall  come,  or  shall  have  come  into  the.  hands  of  any 
executor,  guardian  or  trustee,  as  part  of  the  assets  which  he 
is  to  administer,  or  as  part  of  the  estate  and  fund  he  is  to  con- 
trol or  manage,  it  shall  be  lawful  for  such  executor,  guardian 
or  trustee  to  present  a  petition  to  the  court  by  which  he  was 

''^Orphans'  Court  Act,  sec.  136.  35  N.  J.  Eq.,  100-103.     Woodruff 

3  Comp.  Stat.,  3863.  V.    Ward,   35    N.   J.   Eq.,   467-471 

^2Page  378,  supra.  Dufford   v.   Smith,   46  N.   J.  Eq. 

^^Tucker   v.    Tucker,    33    N.    J.  216-220. 
Eq.,  235.     Affirmed,  34  N.  J.  Eq.,  "^Q^ay  v.  Fox,  i  N.  J.  Eq.,  259 

292.  Shepherd  v.  Newkirk,  21  N.  J.  L. 

''^Tucker    v.    Tucker,    33    N.    J.  302. 
Eq.,  235-237.     Affirmed,  34  N.  J.  ^^Shepherd  v.  Newkirk,  21  N.  J 

Eq.,   292.     Williams   v.   Williams,  L.,  302. 


Investments.  391 

appointed,  or  to  the  court  by  law  authorized  to  pass  on  his  ac- 
counts, setting  forth  the  nature  and  amount  of  such  bonds, 
mortgages,  stock-shares  and  other  securities  that  have  so  come 
into  his  hands  and  to  pray  the  direction  of  said  court  as  to 
the  sale  and  conversion  of  such  bonds,  mortgages,  stock-shares 
and  other  securities,  or  as  to  their  retention  as  an  investment, 
and  the  said  court,  upon  a  consideration  of  all  the  circum- 
stances of  the  case  and  the  evidence  produced,  may  make  such 
order  touching  the  sale  or  retention  of  such  bonds,  mortgages, 
stock-shares  and  other  securities,  or  any  part  thereof,  as  in  the 
judgment  and  discretion  of  the  said  court  will  be  most  ad- 
vantageous to  the  trust  fund  and  to  the  interest  of  the  j^ersons 
entitled  to  share  therein  ;  and  any  executor,  guardian  or  trus- 
tee continuing  to  hold  any  such  bonds,  mortgages,  stock- 
shares  or  other  securities  as  an  investment,  in  pursuance  of 
such  order  and  direction,  shall  be  fully  protected  thereby  and 
shall  not  be  accountable  for  any  loss  by  reason  of  such  con- 
tinuance; that  no  notice  of  any  such  application  under  this 
act  shall  be  necessary,  unless  the  court  to  whom  the  same  is 
made  shall  otherwise  order,  and  in  that  case  such  notice 
shall  be  given  as  said  court  shall  then  direct ;  provided,  Jiozu- 
ever,  that  nothing  herein  contained  shall  apply  to  cases  where 
the  deed  of  trust  or  the  last  will  and  testament  of  any  testator, 
or  the  court  having  jurisdiction  of  the  matter,  specially  directs 
in  what  manner  the  trust  funds  shall  be  invested.^' 

APPORTIONMENT    OF    LOSS    BETWEEN    LIFE-TENANT 
AND  REMAINDERMAN. 

In  General. 

When  a  fund  is  held  in  trust  for  the  benefit  of  one  person 
for  life  and  another  in  remainder,  and  part  of  that  fund  is  lost 
because  of  the  insecurity  of  a  particular  investment,  such  loss 
is  to  be  apportioned  between  the  life  tenant  and  remainderman 
in  the  proportion  which  the  principal  sum  involved  in  the  in- 
sufficient security  bears  to  the  interest  due  ui)on  it  at  the  time 
when  the  security  is  realized  upon,  and  the  amount  of  the  loss 

^^2  Comp.  Stat.,  p.  2267,  sec.  28.  tinue  Testator's  Investments,"  p. 
See  also  "Executor,  &c.,  may  Con-      380,  supra. 


392  Probate  Law  and  Practice. 

is  determined ;  and  when  the  loss  is  not  ascertained  until  after 
the  death  of  the  life-tenant,  the  interest  upon  the  principal  sum 
involved  from  the  death  of  the  life-tenant  to  the  date  of  ,the 
ascertainment  of  the  loss  is  added  to  and  forms  a  part  of  such 
principal  sum."®  So  where  an  investment  was  upon  bond  and 
mortgage,  which  it  became  necessary  to  foreclose  by  reason  of 
a  default  in  interest,  and  the  property  was  purchased  by  the 
trustee,  and  finally  sold,  realizing  only  a  profit  over  the  original 
investment,  and  leaving  a  large  deficiency  of  income,  it  was 
held  that  this  deficiency  should  be  apportioned  between  the 
life-tenant  and  the  remainderman.''" 

LIABILITY  OF  EXECUTOR,  &c.,>  FOR  INTEREST  ON 
FUNDS  OF  ESTATE. 

In  Case  of  Failure  to  Invest. 

Executors,  administrators,  guardians  or  trustees  required  to 
retain  money  in  their  hands  shall  put  it  out  at  interest,  or  apply 
to  the  orphans'  court  for  an  order  so  to  do  ;  and  in  case  they 
shall  not  be  able  to  find  proper  investment  therefor,  they  shall 
report  the  fact  to  the  court  within  sixty  days  after  they  shall 
have  received  it,  or  after  they  shall  be  required  to  retain  it 
or  to  invest  it ;  and  in  case  of  their  neglect  so  to  do.  they  shall 
be  accountable  for  the  interest  thereon.^ 

Where  an  executor  negligently  sufifers  trust  moneys  in  his 
hands  to  lie  idle,  he  will  be  charged  with  interest ;-  and  where 
it  is  the  duty  of  executors  to  invest  a  legacy  with  a  view  to 
accumulation,  their  neglect  of  such  duty  makes  them  charge- 
able with  interest  at  the  legal  rate."  So  where  the  will  au- 
thorizes the  executor  to  invest  as  soon  after  the  testator's  death 

9«Tuttle's    Case,    49    N.   J.    Eq.,  Eq.,  71.     McKnight  v.  Walsh,  21 

259.    Hagan  v.  Piatt,  48  N.  J.  Eq.,  N.  J.  Eq.,    136.     Affirmed,  24  N. 

206.  J.  Eq.,  498.     Frost  v.  Denman,  41 

99Hagan  v.  Piatt.  48  N.  J.  Eq.,  N.  J.  Eq.,  47.    Hetfield  v.  Debaud, 

206.  54  N.  J.  Eq.,  371.     Fluck  v.  Lake, 

1  Orphans'  Court  Rule  25.     See  54  N.  J.  Eq.,  638.     Male  v.  Wil- 

also  Orphans'  Court  Act,  sec.  136,  liams,  48  N.  J.  Eq.,  ZZ- 
p.  389,  supra.  ^po^yler  v.   Colt,  25   N.  J.   Eq.. 

-Voorhees  v.  Stoothoff,  11  N.  J.  202.      Affirmed,    sub   nom.,    Salis- 

L.,   145.     King  V.  Berry,  3  N.  J.  bury  v.  Colt,  2^  N.  J.  Eq.,  492. 
Eq.,  261.     Frey  v.  Frey,  17  N.  J. 


Liability  of  Executor,  Etc..  for  Ixterest.        393 

as  seems  for  the  best  interest  of  the  estate,  it  is  his  duty  to  make 
temporary  investments  until  the  trust  can  be  executed,  and  if 
he  fail  to  do  so,  he  will  be  chargeable  with  interest  ;*  and  the 
omission  of  executors  to  invest  a  legacy  as  intended  by  the 
testator  will  not  be  excused  by  the  fact  that  it  was  for  the  in- 
terest of  the  residuary  legatees  that  the  legacy  should  not  be 
separated  from  the  estate  so  long  as  it  could  be  avoided."'  An 
executor  will  not,  however,  ordinarily  be  chargeable  with 
interest  on  moneys  in  his  hands  uninvested  for  and  during 
the  year  allowed  him  in  which  to  settle  the  estate." 

The  propriety  of  charging  a  trustee  with  interest  depends 
upon  other  facts  than  the  mere  circumstance  of  having  money 
of  his  cestui  que  trust.'  As  a  general  rule,  where  the  exact 
line  of  duty  is  not  clear,  and  the  accountant  acts  in  good  faith 
and  under  the  advice  of  counsel,  and  does  not  attempt  to  make 
any  profit  himself,  interest  should  not  be  charged  against  him.^ 
So  an  executor  or  trustee  who  faithfully  discharges  his  trust 
and  exercises  prudent  care,  just  activity,  reasonable  skill,  and 
proper  diligence,  should  be  charged  only  with  the  intere'st  he 
has  made  f  and  so  where  an  executor  entered  into  an  agree- 
ment with  the  beneficiaries  under  a  will  that  he  would  not 
charge  commissions,  and  that  no  interest  should  be  charged  on 
balances  in  his  hands,  and  the  administrator  of  a  deceased 
beneficiary  assented  to  this  arrangement,  the  executor  will  not 
be  charged  with  interest  on  the  share  of  such  deceased  benefi- 
ciary.^° 

In  Case  of  Failure  to  Account  for  Receipts. 

The  rule  is  settled  that  an  executor  or  administrator  will  be 
charged  with  interest  on  all  sums  received,  or  which  should 
have  been  received  by  him,  for  rents,  interest,  etc.,  and  not  ac- 

*Holcombe  v.  Holcombe,  11  N.  316.     Birkliolm  v.  Wardell,  42  N. 

J.  Eq.,  281.    S.  C.  ib..  476.  J.  Eq..  2,37. 

^Fowler   v.   Colt,   25    N.   J.   Eq.,  ^King    v.    Berry,    3    N.    J.    Eq., 

202.    Aflfirmed,  sub  nom.,  Salisbury  261. 

V.   Colt,  27   N.  J.   Eq.,  492.  '•'Voorhecs  v.  Stoothoff.  ir  N.  J. 

"Wyckoff    V.    O'Xeil,    72    N.    J.  L.,  145. 

Eq.,  880.  "'Barclay    v.    Cooper,   42   N.   J. 

^Johnson  v.  Eicke,   12  N.  J.  L.,  Eq..  516. 


394  Probate  Law  and  Practice. 

counted  for,  from  the  time  when  each  sum  is  received  or  should 
have  been  received  by  him."  So  where  a  testator  bequeathed 
a  certain  sum  for  the  support  of  his  daughter,  and  directed 
the  trustee  to  keep  the  money  invested  and  pay  her  the  in- 
terest and  so  much  of  the  principal  as  might  be  needed  for 
her  support,  and  the  trustee  bought  a  house  with  the  money 
and  accounted  only  for  the  rents  derived  therefrom,  which 
were  less  than  the  fund  would  have  produced  if  invested  at 
legal  interest,  it  was  held  that  he  must  account  for  the  dif- 
ference between  the  rents  received  by  him  and  the  legal  in- 
terest on  the  corpus  of  the  trust  fund.^-  So  where  an  execu- 
tor converted  dividend-paying  stock  into  money,  and  with  it 
paid  off  a  mortgage  on  lands  in  which  he  had  an  interest  as 
heir,  and  credit  for  this  payment  was  disallowed,  he  was  held 
chargeable  with  interest  at  the  legal  rate  on  that  amount  from 
the  date  of  the  payment,  including  the  time  during  which  liti- 
gation on  exceptions  to  his  accoimt  continued;'"^  and  so  where 
an  executor  occupied  premises  of  his  testator  for  which  he 
agreed  to  pay  rent  at  a  fixed  sum,  but  failed  to  do  so,  as  he 
had  the  use  of  the  money  with  which  he  should  have  paid  rent, 
he  will  be  obliged  to  pay  interest  on  the  rent  reserved  from 
the  end  of  each  month  during  his  tenancy. ^^ 

In  order  to  justify  charging  accountants  with  interest,  it  is 
not  necessary  that  the  court  should  find  that  interest  had  ac- 
tually been  received  by  the  executors;  it  is  sufficient  if  it  is 
satisfied  that  they  had  used  or  made  a  profit  on  funds  in  their 
hands,  or  that  they  actually  put  the  money  out  at  interest,  or 
that  they  might  or  ought  to  have  received  interest. ^^ 

i^Voorhees  v.   Stoothoff,   ii   N.  ^-Williams  v.  Williams,  35  N.  J. 

J.   L.,    145.     Lathrop  V.   Smalley's  Eq.,  100. 

Executors,  23  N.  J.  Eq.,  192.  Blau-  "Mount  v.  Van  Ness,  35  N.  J. 

velt  V.   Ackerman,   23   N.   J.   Eq.,  Eq.,  113. 

495.     Affirmed,  25  N.  J.  Eq.,  570.  i*Tichenor   v.   Tichenor,   43    N. 

Smith  V.  Gummere,  39  N.  J.  Eq.,  J.    Eq.,    163.      Affirmed.   45    N.    J. 

27.     Dissenger's    Case,    39    N.    J.  Eq.,  303. 

Eq.,  227.    Tichenor  v.  Tichenor,  43  '^Mathis  v.  Mathis,  18  N.  J.  L.. 

N.  J.  Eq.,  163.    Affirmed,  45  N.  J.  59. 
Eq.,  303. 


Liability  of  Executor,  Etc.,  for  Interest.         395 

Assets  Reserved  for  Purposes  of  Administration. 

Where  accountant  kept  on  hand  larger  amounts  than  the 
necessities  of  the  estate  required,  he  should  pay  interest  upon 
the  excess,  after  deducting  enough  to  pay  the  yearly  expenses.^* 

Delay  in  Settlement  of  Estate. 

The  balance  of  assets  remaining  in  the  hands  of  executors, 
after  payment  of  debts,  should  be  paid  to  those  interested,  or 
put  out  at  interest  for  their  benefit.  If  the  funds  are  used  by 
the  executor,  he  is  required  not  only  to  pay  interest,  but  to  ac- 
count for  all  the  profits  he  may  have  made.  If  no  profit  has 
been  made,  but  the  money  has  been  suffered  to  lie  idle,  he  will 
be  charged  with  simple  interest  for  his  negligence.  So  an 
executor  will  not  be  exempted  from  the  payment  of  interest 
simply  on  the  ground  that  the  legatees  were  at  a  distance,  and 
might  call  for  their  money  when  it  was  not  in  hand  ;^'  but,  as  a 
general  rule,  where  an  executor  is  liable  to  be  called  upon  at 
any  time  for  the  payment  of  a  legacy  and  there  are  no  direc- 
tions in  the  will  to  invest  it,  he  is  not  chargeable  with  interest 
thereon,  unless  it  is  made  to  appear  that  he  used  the  money  in 
trade,  or  has  mingled  it  with  his  own  funds. ^^  So  where  an 
executor  held  a  legacy  for  seven  years,  he  was  held  liable  for 
interest  only  in  the  event  of  his  having  used  the  fund  or  made 
a  profit  from  it  ;^^  and  an  inquiry  may  be  conducted  in  the  Pre- 
rogative Court  to  ascertain  whether  accountant  has  made  such 
use  of  it.-°  So  where  an  executor's  final  accounting  was  de- 
layed by  litigation,  and  he  derived  no  benefit  from  the  reten- 
tion of  the  money  held  for  the  payment  of  a  legacy  subse- 
quently declared  invalid,  he  is  not  chargeable  with  interest  for 
failure  to  invest  such  money  pending  final  settlement  of  his 
account.-^     So  in  Dorcmus's  Case,"  where  at  the  time  of  an 

i^Frost  V.  Denman,  41  N.  J.  Eq.,  Hartson   v.   Elden,   58  N.  J.   Eq., 

47'  478. 

i^King  V.  Berry,  3  N.  J.  Eq.,  261.  isClarke   v.    Canfield,    iS    N.    J. 

Frey  v.  Frcy,  17  N.  J.  Eq.,  71.  Eq.,  119- 123. 

"Frey   v.   Frey.    17    N.    J.    Eq.,  sojn    re    Mott.    26    N.    J.    Eq.. 

71.     Corles'    Case,   6t    N.   J.   Eq..  509. 

409.     Lake  v.  Park,    19  N.  J.   L.,  -'In  re  Corle,  61  N.  J.  Eq.,  409. 

108.    In  re  Mott.  26  N.  J.  Eq.,  509.  --32  N.  J.  Eq.,  234. 


396  Probate  Law  and  Practice. 

order  of  distribution  a  distributee  was  absent,  and  was  pre- 
sumed to  be  dead,  and  the  administrator  retained  the  share 
ready  for  payment  for  ten  years,  and  then  deposited  it  in  a 
savings  bank,' where  for  a  time  it  drew  interest,  and  afterwards 
withdrew  it  and  apphed  it  to  his  own  use,  after  which  the  dis- 
tributee appeared,  it  was  held  that  the  administrator  was 
chargeable  with  interest  at  the  rate  allowed  by  the  savings  bank 
during  the  time  the  money  was  deposited  therein,  and  with 
interest  at  the  highest  legal  rate  from  the  time  he  drew  the 
money  from  the  bank.^^ 

The  proper  course  to  pursue,  where  an  executor  finds  that 
considerable  delay  will  ensue  before  legacies  will  be  paid,  is  to 
submit  the  question  whether  the  moneys  held  by  him  shall  be 
invested  to  the  orphans'  court ;  otherwise  he  will  be  accountable 
for  interest  thereon.-* 

Improper  Use  of  Funds. 

The  fundamental  principle  in  regard  to  a  trustee,  whether 
executor,  administrator  or  guardian,  is,  as  has  been  seen,  that 
he  shall  derive  to  himself  no  gain,  benefit,  or  advantage  by  the 
use  of  the  trust  funds.  Whatever  profit  may  be  made,  or  may 
accrue,  shall  belong  to  and  become  parcel  of  the  estate.-''  If 
funds  in  the  hands  of  an  executor  are  mingled  with  his  own,  or 
used  by  him,  he  will  be  required  to  account  for  all  of  the  profits 
he  may  have  made  therefrom ;  if  no  profits  have  been  made, 
but  the  money  has  been  suffered  to  lie  idle,  he  will  be  charged 
with  interest  for  his  negligence.'-"  So  where  an  executor,  to 
whom  lands  are  devised  for  a  certain  time,  does  not  apply  until 
after  his  estate  expires  fbr  an  order  to  sell  lands  to  pay  debts, 
and  in  the  meantime  enjoys  the  estate  and  takes  the  rents  and 

23See  also  Windmuller  V.  Spirits  J.  Eq..  261.     Hamburgh  Mfg.  Co. 

Distributing  Co.,  83  N.  J.  Eq.,  6.  v.  Edsall,  12  N.  J.  Eq.,  392-     Mc- 

24Hetfield  v.  Debaud,   54  N.  J.  Knight  v.  Walsh,  24  N.  J.  Eq..'  408. 

Eq.,  371.    Fluck  V.  Lake,  54  N.  J.  Doremus's  Case,  33  N.  J.  Eq.,  234. 

Eq.,    638-643,    and    see    Orphans'  Aldridge  v.  McClelland,  36  N.  J. 

■Court  Act,  sec.  136,  p.  —,  supra.  Eq.,  288.    Affirmed,  38  N.  J.  Eq:, 

25Voorhees  v.   Stoothoff,   ii   N.  279.     Deegan  v.  Capner,  44  N.  J. 

J.   L.,    145.  Eq.,  339.     Hetfield  v.  Debaud,  54 

2«State  V.  Mayhew,  9  N.  J.  L.,  N.  J.  Eq.,  371.     Jeffrey  v.  Towar. 

70.    Voorhees  v.  Stoothoff,  11  N.  54  Atl.  Rep.,  817. 
J.  L.,   145.     King  V.  Berry,  3  N. 


Liability  of  Executor,  Etc.,  for  Interest.        t,k)j 

profits,  he  must  account   for  the  value  of  the  estate  so  en- 
joyed.-' 

Rate  of  Interest. 

Under  ordinary  circumstances,  a  personal  representative  is 
liable  for  simple  interest  at  the  legal  rate;  and  when  an  ac- 
count extending  over  a  number  of  years  was  ordered,  and  the 
rate  of  interest  has  been  changed  by  law  during  that  time,  the 
interest  payable  on  the  accounting  must  conform  to  such  fluc- 
tuations ;=*  and  an  administrator  is  not  entitled  to  a  diminu- 
tion in  the  legal  rate  of  interest  upon  funds  retained  in  his 
hands  uninvested,  on  the  ground  that  it  would  have  been  dif- 
ficult, in  his  neighborhood,  to  invest  small  sums  except  at  less 
than  the  legal  rate.-^ 

When  Interest  Commences  to  Run. 

When  a  sum  is  directed  to  be  invested  for  the  benefit  of  a 
child  of  the  testator,  it  must  be  invested  at  the  end  of  a  year 
from  his  death,  and  the  child  is  entitled  to  the  interest  to 
accrue  from  the  end  of  the  year.^"  In  Frey  v.  Fre\-'^  an  ad- 
ministrator was  allowed  six  months  from  settlement  of  his  ac- 
counts in  which  to  make  investments,  and  was  charged  with 
interest  from  that  time. 

Computation  of  Interest. 

In  computing  the  interest,  commissions  (where  allowed) 
should  be  deducted  before  interest  is  charged  upon  the  balance 
against  the  accountant.-*-  Interest  continues  to  run  until  the 
fund  is  actually  paid.^^ 

Compound  Interest. 

On  the  subject  of  exaction  of  compound  interest  fron^  ex- 
ecutors and  trustees,  there  is  not,  and  indeed  cannot  well  l)e, 

"Bray  v.    Neil!,   21    N.   J.   Eq..  saPrey  v.  Frey,  17  N.  J.  Eq.,  71. 

343-  ^"Halsted   v.    Meeker,    18   N.  J. 

28In  re  Samuel  Marcy,  24  N.  J.  Eq.,  136. 

Eq.,  451.     Wilson  v.  Cobb,  31  N.  ^"^ly  N.  J.  Eq.,  71. 

J.  Eq.,  91.    Dorcmus's  Case,  :sz  N.  32Mathis  v.  Mathis,  18  JM.  J.  L.. 

J.  Eq.,  234.     Gilmore  v.  Tuttle,  34  59. 

^-  J-  Eq-  45-  33jackson    v.    Jackson,    3    N.    J. 

Eq.,  96-113. 


398  Probate  Law  and  Practice. 

any  uniform  rule,  which  would  justly  apply  to  all  cases.  When 
a  trust  to  invest  has  been  grossly  and  wilfully  neglected,  where 
the  funds  have  been  used  by  the  trustees  in  their  own  busi- 
ness, or  profits  made  of  which  they  give  no  account,  interest  is 
compounded  as  a  measure  of  damages  for  undisclosed  profits, 
and  in  place  of  them.  For  mere  neglect  to  invest,  simple  in- 
terest only  is  imposed  ;^*  but  a  guardian  will  be  charged  with 
interest,  computed  with  annual  rests,  on  the  amount  received 
by  him  as  guardian  and  neither  invested  nor  used  for  the 
ward."^  So  when  executors  have  failed  for  several  years, 
against  testator's  intention,  to  separate  a  legacy  from  the  estate 
and  invest  it,  it  is  such  a  violation  of  trust  as  justifies  charging 
them  with  compound  interest.'^"  So  where  a  trustee  had  a  large 
estate  invested  in  lands,  stocks,  business,  &c.,  and  the  trust' 
funds  were  in  his  hands  as  a  loan  before  the  creation  of  the 
trust,  and  the  trust  moneys  cannot  be  traced  to  ascertain  the 
profits  made,  or  the  form  of  investment,  he  will  be  charged 
with  compound  interest  on  the  trust  fund  in  his  hands,  with 
annual  rests. ^' 

Where  an  executor  loaned  a  fund  to  his  co-executor  with- 
out adequate  security,  he  was  held  liable  for  the  principal  and 
compound  interest.^^  So  where  a  guardian  fails  to  render  an 
account,  he  will  be  charged  interest  on  the  sums  found  to  be 
due,  with  annual  rests  f^  and  a  trustee  who  uses  the  trust 
fund,  having  retained  the  interest,  must  pay  interest  upon 
such  interest  from  the  day  it  becomes  due.*'^  So  where  a  trus- 
tee mingled  trust  funds  with  his  own,  he  was  held  chargeable 
with  interest  to  be  ascertained  by  striking  monthly  balances.*^ 
So  where  a  guardian  received  pension  money  quarterly   for 

3*McKnight  v.  Walsh,  24  N.  J.  ^TjvicKnight  v.  Walsh,  24  N.  J. 

Eq.,  498-510.     Voorhees  v.  Stoot-  Eq.,  498. 

hoff,  II  N.  J.  L.,  145.     Windmul-  sspgrrine  v.  Petty,  34  N.  J.  Eq., 

ler  V.  Spirits  Distributing  Co.,  83  193. 

N.  J.  Eq.,  6.  39Eiston    ^     Carpenter,    3    Atl. 

^^Smith  V.  Ciummere,  39  N.  J.  Rep.,  357. 

I^q-,    27.  ♦"Lathrop  v.   Smalley,  23  N.  J. 

'•^Salisbury  v.  Colt,  27  N.  J.  Eq..  Eq.,   192. 

492.  *^Van  Doren  v.  Van  Doren,  45 

N.  J.  Eq.,  580. 


Liability  of  Executor,  Etc.,  for  Interest.         399 

nine  years  on  account  of  his  ward,  and  never  filed  any  account 
from  the  time  of  his  appointment,  fifteen  years  before,  until 
cited,  it  was  held  that,  although  there  was  lio  evidence  that  he 
had  used  the  money,  he  would  be  required  to  pay  interest  on 
the  pension  money  with  annual  rests.*- 

The  true  rule  in  computing  interest,  where  partial  payments 
are  made,  is  that  where  such  payments  exceed  the  interest  due, 
the  surplus  is  to  be  deducted  from  the  principal  on  which  to 
compute  interest;  but  where  the  payments  do  not  equal  the 
interest  due,  no  deduction  is  made,  and  interest  is  cast  on 
the  principal  until  the  pavments  exceed  the  amount  of  the  in- 
terest.*^ 

WASTE  OR  CONVERSION  BY  EXECUTOR  OF  DECEASED 

EXECUTOR. 

Statutory  Provisions. 

Every  executor  or  administrator  of  any  person  or  persons, 
who,  as  executor,  either  of  right,  or  in  his  or  her  own  wrong, 
or  as  administrator  hath  wasted  or  converted,  or  hereafter  shall 
waste  or  convert  any  goods,  chattels,  estate  or  assets  of  any 
person  deceased,  to  his  or  her  own  use,  shall  be  liable  and 
chargeable,  in  the  same  manner  as  hi«  or  her  testator  or  in- 
testate would  have  been,  if  living.** 

INDIVIDUAL  INTEREST  IN  TRANSACTIONS. 

In  General. 

The  rule  is  inflexible  that  an  executor  will  not  be  permitted 
to  make  any  profit,  gain  or  advantage  to  himself  out  of  the 
trust  estate  in  his  hands  ;*'  and  if  a  trustee  invests  money  in  an 
unauthorized  security,  and  makes  profits,  the  ccstuis  que  trust- 

^^Dissenger's  Case,  39  N.  J.  Eq.,  Hq.,  392.     Blauvelt   v.   Ackerman. 

227.  20    N.    J.    Eq.,    141.      Wyckoflf    v. 

"Stark  V.  Hunton,  3  N.  J.  Eq.,  Wyckoff,  44  N.  J.  Eq.,  56.     Lou- 

300.  denslager    v.    Woodbury    Heights 

**2  Comp.  Stat.,  p.  2261,  sec.  6.  Land  Co.,  58  N..  J.  Eq.,  556.  Elli- 

*''Trenton       Banking      Co.      v.  cott  v.  Chamberlin,  38  N.  J.  Eq.. 

Woodruff,  2  N.  J.  Eq.,  117.   Ham-  604. 
burg  Mfg.  Co.  V.  Edsall,  12  N.  J. 
27 


400  Probatr  Law  and  Practice. 

ent,  are  entitled  to  the  profits  thus  made.*"  So  if  a  trustee  use 
trust  funds  for  the  purchase  of  property,  it  is  a  violation  of  his 
duty  as  trustee,  and  the  profits  of  such  purchase  must  enure 
to  the  benefit  of  the  cestui  que  trust,  while  any  loss  must  fall 
exclusively  upon  the  trustee;*'  but  where  a  trustee  bought 
goods  of  firms  in  which  he  was  interested,  and  it  appeared  that 
the  goods  were  sold  at  the  usual  prices,  the  interest  of  the  trus- 
tee in  the  firms  was  held  to  be  no  valid  objection  to  their  pur- 
chase.*** The  mere  fact  that  a  trustee  receives  a  bonus  for 
lending  trust  funds  does  not  of  itself  show  bad  faith ;  but  he 
must  charge  himself  with  the  bonus  so  received.*^ 

LOSS  OR  DEPRECIATION  OF  ASSETS. 

In  General. 

As  has  before  been  said,  an  executor,  administrator,  guard- 
ian or  trustee,  in  assuming  his  duties  under  ordinary  cir- 
cumstances, where  he  is  not  controlled  by  statutes  or  rules  of 
court,  is  not  bound  to  extraordinary  care,  nor  is  he  an  in- 
surer against  loss  under  all  circumstances ;  but  if  he  is  careful, 
faithful  and  discreet,  the  duty  imposed  on  him  by  law  will  be 
discharged."'"  Reasonable  care  and  proper  diligence  are  ex- 
pected. Watchfulness  ought  ever  to  be  part  of  the  fulfillment 
of  the  trust.  When  these  qualities  have  been  exercised,  he 
will  not  be  held  responsible  for  losses  which  prudent  man- 
agement could  not  foresee  or  avoid,  nor  will  he  be  charged  with 
gains  which  the  like  conduct  on  his  part  has  not  realized. ^^  So 
an  executor  is  not  chargeable  \vith  loss  sustained  by  the  estate 
on  accoinit  of  the  depreciation  in  value  of  the  assets  of  the 
estate,  without  negligence  or  misconduct  on  his  part,^"  as  where 

^'^Shearman  v.  Cameron,  76  N.  •'^Monroe  v.  Osborne,  43  N.  J. 

J.   Eq.,  426.     Reversed.   78   N.   J.  Eq..   248. 

Eq.,  532.  ''iVoorhees  v.   Stoothoff,   11    N. 

*''Deegan   v.    Capner,   44   N.   J.  J.  L..  145. 

Eq.,  339.  ''-In  re  Barcalow,  29  N.  J.  Eq.. 

*8Brinkerhofif  v.  Banta.  26  N.  J.  282.     Reversed,  36  N.  J.  Eq.,  611. 

Eq^  157.  Wanzer  v.  Eldridge,  33  N.  J.  Eq., 

■•^Sherman   v.   Lanier,   39   N.   J.  511.    Dey  v.  Codman,  39  N.  J.  Eq., 

Eq.,  249.  258. 


Loss  OR  Deprfxiation  of  Assets.  401 

live-stock  died  from  disease. ''=*  So  where  an  executor  Was  re- 
strained by  the  Court  of  Chancery  from  disposing  of  certain 
stocks,  he  was  held  entitled  to  an  allowance  for  the  deprecia- 
tion of  the  stocks  pending  the  injunction  f*  and  where  testator 
gave  the  use  of  all  of  his  property,  real  and  personal,  to  his 
widow,  and  a  portion  of  the  personal  property  was  consumed, 
the  executor  was  allowed  for  the  property  necessarily  con- 
sumed in  its  use  upon  the  premises.^''  So  where  a  portion  of 
an  estate  bequeathed  in  trust  for  certain  beneficiaries  included 
a  certain  judgment  debt,  and  the  executors  knew,  as  a  matter 
of  fact,  that  the  testatrix  had  received  payment  of  the  debt 
which  formed  the  basis  of  the  judgment,  they  were  not  charge- 
able with  failure  to  institute  proceedings  to  collect  the  judg- 
ment.^^ 

Next  of  kin  or  legatees  may  be  estopped  by  their  conduct 
from  charging  an  executor  or  administrator  with  misapplying 
the  assets  of  the  estate ;  but  to  work  such  an  estoppel,  it  must 
appear  that  the  person  against  whom  it  is  sought  to  be  enforced 
had  such  knowledge  that  he  was  charged  with  a  duty  of  in- 
quiry in  respect  thereto.  Knowledge,  or  duty  to  inquire 
whereby  knowledge  would  have  been  acquired,  is  essential  to 
an  estoppel  of  this  character.  Where  both  parties  have  equal 
opportunities  of  knowledge,  and  both  act  in  ignorance  of  the 
real  state  of  the  case,  such  an  estoppel  will  not  arise.''"  So 
where  an  administrator  of  a  deceased  wife  claimed  that  de- 
cedent told  him  during  her  lifetime  to  distribute  certain  stock 
among  her  children,  and  he  did  so,  it  was  held  that  unless  the 
husband  of  intestate,  who  was  her  distributee,  had  knowledge 
of  these  facts,  and  stood  by  without  protest  and  permitted  such 
distribution  by  the  administrator,  the  latter  would  be  sur- 
charged with  the  amount  of  the  .stock  so  distributed.''* 

=3Crane   v.  VanDuyne,  9  N.  J.  ■'^'''Mulford   v.   Mullord,   53   Atl. 

Eq.,  259.  Rep.,   79. 

5*Greiner   v.    Greiner,   35    N.   J.  ^TBayley's    Case.    67    N.   J.    Eq.. 

Eq.,  134-  566-569.    Smith  v.  Robinson,  83  X. 

^^Crane  v.  Van  Duyne,  9  N.  J.  J.  Eq.,  384. 

Eq.,  259.  i^sBayley's    Case,   67   N.   J.   Eq., 

566. 


402  Probate  Law  and  Practice. 

Loss  Through  Misconduct. 

An  executor  or  administrator  will  be  charged  with  all  losses 
accruing  through  misconduct  or  fraud. ^'^  So  where  in  selling 
their  testator's  real  estate  an  executor  allowed  the  widow,  who 
was  one  of  the  executors,  to  fix  arbitrarily  and  retain  out  of 
the  purchase  money  the  amount  claimed  by  her  as  the  value 
of  her  dower,  such  amount  being  in  excess  of  the  amount  to 
which  she  was  entitled,  they  were  held  accountable  for  the 
difiference."" 

Loss  from  Sale  of  Stocks. 

An  executor  who  holds  stock  which  he  does  not  need  to  con- 
vert into  money  to  enable  him  to  execute  his  trust  will  be  jus- 
tified in  selling  it  only  when  he  acts  in  so  doing  upon  an  honest 
and  well-founded  apprehension,  predicated  upon  the  exercise 
of  reasonable  care  and  caution,  that  to  hold  it  longer  would  en- 
danger or  prejudice  the  estate.*^^  So  where  in  the  exercise 
of  reasonable  care  and  caution  an  executor  sold  stock  after 
it  had  depreciated  in  value,  he  was  held  not  liable  though  tbe 
market  value  of  the  stock  afterwards  increased  f-  and  where 
executors  have  power  under  the  will  to  change  investments  of 
personal  estate  in  such  manner  as  may  be  thought  most  ad- 
vantageous for  the  estate,  they  are  authorized  to  dispose  of  an 
unproductive  and  constantly  depreciating  stock  at  less  than  par, 
though  the  testator  expressed  a  wish  that  the  stock  should  not 
be  sold  for  less  than  par,  unless  thought  necessary.*'^ 

•>9Fisher  v.  Quick,  8  N.  J.  Eq.,  «iFluck  v.  Lake,   54  N.  J.  Eq.. 

674.     Affirmed,  ib.,  778.     S.  C,  9  638. 

N.  J.  Eq.,  802.  Blackwell  v.  Black-  G2Green's    Case,    2,7    N.    J.    Eq.. 

well,  29  N.  J.  Eq.,  576.     Affirmed,  254,   and   see   Reporter's   Note   to 

31  N.  J.  Eq.,  796.     Schweitzer  v.  Green's  Case,   2)7   N.  J.   Eq.,  254- 

Bonn,  55  N.  J.  Eq.,  107.  255. 

'■•oBlackwell  v.  Blackwell,  29  N.  csstephens  v.  Milnor,  24  N.  J. 

J.   Eq.,   576.     Affirmed,   31    N.   J.  Eq.,  358. 
Eq.,  796. 


Loss  OR  DKi'RKCIATiON  OF  ASSETS.  403 

Losses  Through  Negligence. 

An  executor  or  administrator  is  chargeable  with  all  losses 
which  occur  in  consequence  of  his  negligence  ;"*  as  where  he, 
without  examination,  or  inquiry,  pays  a  claim  against  the 
estate  where  nothing  is  due,"^  or  where  the  loss  of  a  legacy 
was  directly  attributable  to  his  want  of  business  judgment,  if 
not  his  culpable  negligence,""  or  where  a  guardian  neglected  to 
keep  the  house  of  his  ward  in  repair,  and  rents  were  thereby 
lost."'  So  an  executor  cannot  discharge  himself  by  showing  a 
loss  of  funds  by  reason  of  his  faihire  to  record  a  mortgage 
given  to  secure  a  bond  payable  to  the  estate  ;"®  but  a  trustee 
cannot  be  called  on  to  account  for  the  profits  of  a  business  in 
which  the  fund  was  originally  lawfully  invested,  merely 
because  he  neglected  to  withdraw  it  from  that  business.'''' 

An  executor  holding  a  bond  and  mortgage  of  one  who  makes 
an  assignment  for  the  benefit  of  his  creditors,  and  whose  estate 
pays  a  dividend,  is  in  laches  in  not  presenting  his  claim  to  the 
assignee,  and  will  be  liable  for  the  loss  incurred  if  a  deficiency 
results  from  the  foreclosure  of  the  mortgage  ;''^  so  where  an 
executor  kept  a  large  amount  of  money  belonging  to  the  estate 
in  his  house  for  over  a  year,  and  it  was  stolen,  he  will  be  held 
accountable. '^^  And  so  if  an  administrator  employs  an  agent 
who  is  notoriously  incompetent,  he  will  be  held  liable  for  any 
loss  arising  thereby. '- 

Where  an  assignment  of  a  distributive  share  was  void  be- 
cause the  assignor  was  an  idiot,  it  will  not  protect  adminis- 
trators that  they  acted  in  good  faith  in  paying  over  the  share 

^'^Stark  V.  Hunton,  3  N.  J.  Eq.,  ^^Smith  v.  Gummere,   39  N.  J. 

300.    Holcombe  v.  Holcombe,  11  N.  Eq.,  27. 

J.  Eq.,  281 ;    Cooley  v.  Vansyckle.  •'^'Lindsley    v.    Dodd,    53    N.    J. 

14   N.   J.    Eq.,   496.      Vreeland    v.  Eq.,  69.     Reversed  57  N.  J.   Eq., 

Vreeland,     16     N.     J.     Eq.,     512.  334. 

Fisher  v.  Skillman,   18  N.  J.  Eq.,  '-••McKnight  v.  Walsh,  23  N.  J. 

229.     Lindsley  v.   Dodd,  53  N.  J.  Eq.,   136.     Affirmed  24  N.  J.  Eq., 

Eq.,  69.     Reversed   57  N.  J.   Eq.,  49S. 

334.  '"Wil-son  V.  Staats,  33  N.  J.  Eq., 

c^Stark  V.   Hunton,  3  N.  J.  Eq.,  524. 

300.  '^^Cornwell  v.  Deck,  8  Hun.,  122. 

♦'^Stoothofif    V.    Reed,    32    N.    J.  "^Wakeman  v.  Hazleton,  3  Barb. 

Eq.,  213.  Ch.,  148. 


404 


pROBAT]'   Law  and  Practice. 


to  such  assignee;'"  and  where  personal  property  is  directed 
to  be  sold,  and  no  provision  is  made  for  maintaining  or  keep- 
ing the  family  in  the  family  mansion,  executors  have  no  right 
to  leave  the  furniture  in  the  possession  and  use  of  such  of 
testator's  children  as  stay  in  the  mansion.'* 

In  cases  of  manifest  error,  it  will  not  excuse  an  executor 
that  he  acted  on  the  advice  of  counsel ;  but  in  doubtful  cases  it 
is  a  circumstance  entitled  to  great  weight  in  his  f avor.'^ 

Sale  of  Personal  Property. 

Where  an  executor  or  administrator  sells  personal  property 
of  the  estate  which  he  represents,  at  an  improper  time,  or  with- 
out conforming  to  the  conditions  of  his  powers,  he  will  be 
held  responsible  for  the  highest  value  the  property  can  be 
shown  to  have  had."''  So  he  will  be  held  liable  where  he  sells 
goods  on  credit  without  judicial  sanction,  and  a  loss  is  sus- 
tained ;'"  but  where  an  executor  made  such  an  adjustment  of 
the  affairs  of  an  estate  that  he  realized  for  the  estate  more  than 
otherwise  would  have  been  realized,  and  in  making  such  ad- 
justment took  two  notes  which  he  was  unable  to  collect,  he 
was  held  not  liable  for  the  loss  by  reason  of  the  failure  to 
collect  such  notes.'* 

WTiere  an  executrix  by  collusion  with  the  auctioneer  bought 
part  of  the  personal  property  for  less  than  it  would  have 
brought  if  fairly  sold,  it  was  held  that  she  must  account  for  the 
difference  between  the  price  paid  by  her  for  the  property 
auctioned  and  the  inventoried  value  thereof.^® 

"^Dorsheimer  v.  Rorback,  23  N.  N.    J.    Eq.,    229,    239.      Melick    v. 

J.  Eq.,  46.    Affirmed  25  N.  J.  Eq.,  Voorhees,  24  N.  J,  Eq.,  305.     Af- 

516.  firmed  25  N.  J.  Eq.,  523. 

'^Graydon  v.  Graydon.  23  N.  J.  "'Vreeland   v.    Vreeland.    16   N. 

Eq.,  229.     Reversed  25  N.  J.  Eq..  J.  Eq,,  512. 

361.  ^sQfgen   V.   Groocock,   35   N.   J. 

■^King  V.   Berry,   3    N.  J.   Eq.,  Eq.,  474. 

261 ;    see  also   "Loss   and   Depre-  • -'Blackwell  v.  Blackwell,  29  N. 

elation  of  Assets,  p.  400,  supra.  J.    Eq.,    5/6.      Affirmed    31    N.    T. 

'^Huston   V.   Cassidy,    14   N.   J.  Eq.,  796. 
Eq.,   320.     Fisher   v.   Skillman,   18 


Loss  OR  Depreciation  of  Assets.  405 

Loss  Through  Failure  of  Bank. 

Where  an  executor  places  funds  belonging-  to  the  estate  in 
a  bank  to  the  credit  of  the  estate  when  the  bank  is  in  good 
standing,  but  the  bank  fails  before  the  funds  are  withdrawn, 
he  will  not  be  held  liable  for  their  loss.®" 

Failure  to  Collect  Claims. 

It  is  the  duty  of  executors  to  collect  and  secure  promissory 
notes  and  all  other  debts  not  properly  secured.  If  these  are 
permitted  to  remain  unsecured,  and  are  afterwards  lost,  it 
constitutes  negligence  on  the  part  of  the  executors,  and  they 
must  be  charged  with  the  loss.^^  So  an  administrator  will  be 
charged  with  the  loss  of  a  debt  due  the  estate,  although  the 
debtor  turns  out  to  be  insolvent,  when  the  debt  is  inventoried  as 
good,  and  the  administrator  in  his  first  settlement  eighteen 
months  after  the  death  of  the  intestate  charges  himself  with  it 
and  suffers  three  years  to  elapse  without  attempting  to  collect 
it,  although  during  a  part  of  the  time  the  debtor  was  engaged 
in  business  and  appeared  to  be  possessed  of  some  property. ^^ 

If  executors  in  their  discretion  are  satisfied  that  there  is 
nothing  due  the  estate  upon  a  claim  included  in  the  inventory 
and  appraisement,  they  will  not  be  charged  with  the  amount, 
unless  it  be  made  to  appear  that  the  amount  was  really  due.^^ 
So  where  it  appears  that  an  executor  had  not  kept  any  account 
of  his  trust,  or  of  moneys  collected,  and  had  inventoried  several 
notes  as  bills  receivable  of  his  testator's  estate,  and  on  his  death 
only  part  of  them  were  found  in  his  possession,  it  was  held 
that  he  should  not  be  charged  with  the  amount  of  the  missing 
notes. ^* 

On  the  other  hand,  where  securities  which  came  into  execu- 
tors' hands  as  assets  of  their  testator's  estate,  but  which  in  fact 
belonged  to  another  estate,  have  been  appropriated  by  them  in 

^"Jacobus   V.  JacoI)us,   yj   N.  J.  ^-Cooley  v.  Vansyckle,  14  N.  J. 

Eq.,   17.     Affirmed  sub  nom.  Cox  Eq.,  496. 

V.  Roome,  38  N.  J.  Eq.,  259;    and  ssstark  v.  Hunton,  3  N.  J.  Eq., 

see  Reporter's  Note  to  Jacobus  v.  300. 

Jacobus,  37  N.  J.  Eq.,  17.  at  p.  18.  8*Hunt  v.  Smith.  58  N.  J.  Eq., 

siRolcombe  v.  Holcombe,  11  N.  25. 
J.    Eq.,    281.      Reversed    ib.,    476. 
Stark  V.  Hunton,  3  N.  J.  Eq.,  300. 


4o6  Probate  Law  and  Practice. 

the  proper  discharge  of  their  duties,  without  notice,  they  wiU 
be  protected.^^  So  executors  are  not  chargeable  with  the 
amount  of  a  mortgage  which  was  satisfied  during  their  testa- 
tor's hfetime,  but  cancelled  of  record  by  them  after  his  death  f^ 
but  an  executor  who  voluntarily  surrenders  to  a  mortgagor  a 
mortgage  belonging  to  his  decedent's  estate  is  liable  therefor  if 
the  debt  thereby  secured  is  lost  to  the  estate.^^ 

COUNSEL   FEES   AND    COSTS. 

In  General. 

•  A  fiduciary  charged  with  the  management  of  property, 
whether  as  executor  or  otherwise,  has  a  right  to  employ  counsel 
when  any  difficulty  arises,  or  when  necessary  or  proper  to  pro- 
tect the  estate,  or  to  enable  him  to  properly  manage  it;  and 
the  reasonable  charges  for  such  services  will  be  allowed  out 
of  the  estate.*®  Reasonable  counsel  fees  are  never  refused, 
when  the  settlement  of  the  estate  requires  the  aid  of  counsel ; 
but  there  must  be  a  necessity,  and  the  fee  allowed  must  be 
based  upon  real  and  not  fancied  services.®''  So  where  the  valid- 
ity of  a  codicil  to  testator's  will,  which  materially  altered  the 
estate  the  widow  would  take  under  the  will,  was  the  subject 
of  litigation,  and  the  estate  was  not  interested  to  resist  an 
application  by  the  widow  in  another  state  for  an  extension  of 
the  time  within  which  she  might  elect  whether  to  accept  a  devise 
under  the  will  in  lieu  of  dower  in  lands  located  in  such  state, 
the  executor  will  not  be  allowed  attorney's  fees  in  resisting  the 
application.'-**' 

When  an  order  of  court  has  directed  the  amount  of  counsel 
fees  to  be  allowed  to  a  guardian  in  a  litigation,  such  guardian 
cannot  charge  against  her  ward's  estate,  in  a  subsequent  ac- 

8?Mulford  V.  Mulford,  40  N.  J.  man.  39  N.  J.  Eq.,  258.     Pyatt  v. 

^-  ^63.  Pyatt,  44  N.  j.  Eq.,  491-     Reversed 

«6Dey  V.  Codman,  39  N.  J.  Eq.,  46  N.  J.  Eq.,  285.     In  re  Dreier's 

^58-  Estate.  92  Atl.  Rep.,  51. 

s^Fisher  v.    Skillman,   18   N.   J.  s^Wyckoff  v.    O'Neil,   71    N.   J. 

Eq..  229-239.  Eq..  729.     S.  C.  72  N.  T.  Eq.,  880. 

ssLiddel  V.  McVickar.   11   N.  J.  ^Hn  re  Flaacke's  Estate,  64  Atl. 

L.,   44-     King   V.   Berry.   3    N.   J.  Rep.,  1020,  affirmed  72  N!  J.  Eq., 

Eq.,  261.     Kingsland  v.   Scudder,  944. 
36  N.  J.  Eq..  284.     Dey  v.  Cod- 


Counsel  Fees  and  Costs.  407 

counting,  the  amount  paid  by  her  to  her  counsel  in  that  liti- 
gation in  excess  of  the  amount  fixed  by  the  court  f^  and  where 
the  court  has  passed  upon  counsel  fees  on  an  intermediate 

accounting,  its  judgment  will  be  conclusive  on  the  final  account- 
ing.^- 

Application  of  Rule. 

Where  suits  at  law  were  threatened  against  an  executor, 
growing  out  of  certain  assignment  proceedings  in  which  the 
testator  as  assignee  had  continued  the  business  in  another 
state,  without  judicial  authority,  and  had  advanced  considerable 
of  his  own  money  in  the  furtherance  of  such  business,  it  was 
held  to  be  the  executor's  duty  to  employ  counsel  to  restrict  such 
liability  to  the  lowest  point,  for  which  services  the  executor 
was  entitled  to  an  allowance  of  counsel  fees.^"*  So  where 
administrators  act  in  good  faith  and  with  ordinary  prudence 
and  discretion  in  selling  their  intestate's  chattels  after  an  as 
yet  unproved  and  apparently  unfounded  claim  therefore  has 
been  made,  they  will  be  allowed  out  of  the  estate  the  costs 
and  reasonable  counsel  fees  of  a  trial  afterwards  brought  at 
law  by  the  claimant,  wherein  he  recovered  a  judgment  for  the 
value  of  chattels  so  claimed.®*  So  if  an  executor  hesitates 
to  pay  a  legacy  from  honest  doubts  as  to  his  liability,  or  at  the 
request  of  the  residuary  legatees,  the  costs  of  a  suit  to 
determine  the  question  will  be  allowed  from  the  residue  of  the 
estate,  upon  the  passing  of  his  final  account. ^^ 

Where  an  executor  gave  notice  to  the  widow  of  an  appli- 
cation to  the  orphans'  court  to  assign  her  dower  in  her  hus- 
band's land,  in  order  to  force  her  to  an  election  between  the 
devise  and  dower,  and  thereafter  the  widow  and  daughter 
brought  ejectment,  claiming  under  the  will,  and  attacking  the 
codicil  thereto,  thereby  compelling  the  executor  to  justify  the 
codicil,  the  executor  was  held  to  be  justified  in  pursuing  his 
proceeding  to  a  lawful  conclusion,  and  was  allowed  the  amount 

^'Allen's  Case.  40  N.  J.  Eq..  181.  ''^Polhemus  v.  Middleton.  37  N. 

''^Dey  V.  Codman,  39  N.  J.  Eq.,  J.  Eq.,  240. 

258.  3-'Keeler  v.  Keeler,  18  N.  J..  Eq., 

»8In  re  Wiley,  65  Atl.  Rep.,  212.  267. 


40^  Probate  Law  and  Practice. 

of  counsel  fees  paid  by  him  f^  and  so  if  an  executor  in  good 
faith  defends  an  action  at  law,  he  will  be  allowed  the  costs 
and  counsel  fees  of  such  action.^' 

For  Services  in  Performing  Representative's  Duties. 

The  rule  regulating  the  allowance  of  commissions  is  that 
such  allowance  on  the  principal  or  income  of  an  estate  must  be 
made  directly  by  the  orphans'  court  to  the  executor  or  trustee, 
who  out  of  such  allowance  must  compensate  agents,  whether  at- 
torneys or  others,  for  performing  the  representative's  duties. 
In  addition,  there  are  to  be  allowed  expenses  actually — that 
is  to  say,  legitimately — incurred  in  the  management  of  the 
estate,  and  in  making  collections  ;  and,  obviously,  such  expenses 
are  those  only  which  are  necessarily  incurred,  and  a  claim  for 
their  allowance  should  be  scrutinized  by  the  court.**^  An  execu- 
tor will  not  be  allowed  for  such  work,  although  done  by  counsel, 
as  he,  in  contemplation  of  law,  is  bound  to  do  himself;  in 
other  words,  if  he  chooses  to  employ  others  to  do  his  work, 
he  must  pay  them  himself.  So  if  he  engages  counsel  or  an 
accountant  to  make  up  his  account,  present  it,  and  appear  on 
the  return  day,  the  cost  of  the  same  will  be  disallowed.^^  So 
an  executor  is  not  entitled  to  an  allowance  for  the  services  of 
counsel  in  making  up  his  inventory  ■,^  and  the  duty  of  examining 
the  contents  of  testator's  saiFe,  private  drawers  and  boxes,  and 
assorting  and  arranging  the  papers  of  the  deceased,  is  the 
proper  work  of  the  executor,  and  if  he  chooses  to  employ  an 
attorney  to  perform  that  service,  he  is  personally  responsible 
for  it.- 

^«In  re  Flaacke's  Estate,  64  Atl.  Eq.,  302.     Pyatt  v.  Pyatt.  44  N.  J. 

Rep.,  1020.    Affirmed  72  N.  J.  Eq..  Eq.,  491^95-     Reversed '46  N.  J. 

944-  Eq-.    285.      In    r^  Wiley,    65    Atl. 

»7PoIhemus  v.  Middleton,  37  N.  Rep.,  212.     In  re  Dreier's  Case,  92 

J.  Eq.,  240.  Atl.  Rep.,  51. 

98Lyon  V.  Bird,  79  N.  J.  Eq.,  at  Hn  re  Ramsey's  Estate,  66  Atl. 

P-  ^57-  Rep.  410.     Wolfe's  Case,  34  N.  J. 

"Wolfe's    Case.    34    N.    J.    Eq..  Eq..  223.     Pyatt  v.  Pyatt.  44  N.  T 

223-227.      Kingsland    v.    Scudder.  Eq.,   491-495-      Reversed   46   N.    T. 

36  N.  J.  Eq.,  284-286.     Personette  Eq.,  285. 

V.    Johnson,    40    N.    J.    Eq.,    173-  ^n  re  Wiley,  6s  Atl.*  Rep.,  212, 

180.     Hurlbut  V.  Hutton,  44  N.  J.  214. 


Counsel  Fees  and  Costs.  409 

Amount  of  Allowance. 

Where  the  services  of  counsel  are  required,  some  discretion 
must  be  allowed  the  accountant  as  to  the  amount  of  compen- 
sation; but  the  mere  fact  that  an  accountant  has  paid  fees  to 
an  attorney  will  not  of  itself  be  a  warrant  for  their  allowance, 
especially  where  it  is  obvious  that  there  could  be  no  occasion 
for  such  attorney's  services.^  If  executors,  without  prudent 
scrutiny,  pay  extravagant  bills  for  legal  services,  they  will  not 
be  allowed,  upon  their  accounting,  more  than  such  sum  as 
would  have  reasonably  compensated  for  the  services.*  Ac- 
countant must  see  to  it  that  the  charges  are  not  excessive,  and 
must  always  remember  that  he  cannot  deal  with  a  trust  fund 
as  if  it  were  his  own.  The  dissipation  of  an  estate  would  soon 
follow  if  the  executor  had  an  unrestricted  right  to  employ  the 
most  expensive  counsel,  and  pay  the  most  liberal  charges  f 
and  the  power  of  the  court  to  make  an  allowance  for  counsel 
fees  should  never  be  exercised  in  such  a  manner  as  to  make 
counsel  a  legatee.^ 

The  mere  fact  that  the  parties  in  interest  agreed  upon  the 
compensation  to  be  allowed  counsel  will  not  of  itself  justify 
the  court  in  making  the  allowance.  The  court  should  not  make 
an  allowance  unless  it  appears  that  it  is  proper — that  is,  that 
the  services  were  rendered  to  the  executor,  and  were  necessary 
for  the  protection  or  management  of  the  estate.^ 

Where  Executor  is  an  Attorney. 

The  whole  trend  of  opinion  in  this  state  seems  to  be  against 
permitting  an  executor  to  receive  extra  compensation  for  serv- 
ices performed  for  the  estate,  whether  such  services  be  strictly 
within  the  scope  of  the  duties  of  the  executor  or  outside  of  it.' 

^Holcombe  v.  Holcombe,   13  N.  ^Wyckoff    v.    O'Neil,    71    N.    J. 

J.   Eq.,  415.  Eq..  729-     S.  C,  72  N.  J.  Eq..  88q. 

*Hurlbut   v.    Hutton,   44   N.    J.  ^Kingsland  v.  Scudder,  36  N.  J. 

Eq.,  302.  Eq.,  284.     Hurlbut  v.   Hutton,  44 

^Kingsland  v.  Scudder,  36  N.  J.  N.  J.  Eq.,  302. 

Eq.,  284.     In  re  Flaacke's  Estate,  ^Wilkinson    v.    Abbott,    30    Atl. 

64  Atl.  Rep.,  1020,  at  p.  1023.    Af-  Rep.,  1098-1100. 
firmed  72  N.  J.  Eq.,  944.    Hurlbut 
V.  Hutton,  44  N.  J.  Eq.,  302. 


i4Jtp  Probate  Law  and  Practice. 

It  follows,  therefore,  that  an  executor,  administrator, ■guard- 
ian,pr  trustee,  who  is  an  attorney,  cannot  recover  or  receive 
ail  allowance  for  professional  services  rendered  the  estate;  but 
the  rule  does  not  apply  when  such  costs  are  not  payable  out  of 
th?.  trust  fund,  and  when  their  payment  wall  not  diminish  the 
estate. **  Counsel  fees  may,  however,  be  paid  to  one  who  has 
renounced  as  executor  and  never  qualified/" 

When  Allowance  Refused. 

Where  the  litigation  has  been  caused  by  the  negligence,  mis- 
conduct or  maladministration  of  the  personal  representative, 
he  will  not  be  allowed  the  costs  thereof  out  of  the  estate.  Thus, 
where  the  litigation  was  caused  by  the  misconduct  of  the  execu- 
tor in  omitting  to  file  an  inventory  and  account  for  moneys 
which  were  due  the  estate,  no  costs  will  be  allowed  him  out  of 
the  estate. ^^  So  an  executor  who  makes  use  of  moneys  belong- 
ing to  the  estate  for  his  own  purposes,  and  keeps  meager  and 
inaccurate  accounts,  thereby  involving  the  estate  in  expensive 
litigation,  will  not  be  allowed  counsel  fees  in  such  litigation 
out  of  the  estate.^-  So  where  an  executor  made  no  efifort  to 
open  an  assessment  of  collateral  inheritance  taxes  in  another 
state  until  the  time  for  appealing  therefrom  had  elapsed,  when 
he  made  such  application  in  order  to  discharge  himself  from 
liability,  the  estate  was  held  not  chargeable  with  his  attorney's 
fees  in  that  behalf. ^^  So  if  executors  unnecessarily  take  an 
appeal  from  a  decree  against  them,  they  may  be  charged  with 
the  costs  of  the  appeal ;"  and  the  general  rule  may  be  stated 

"Ordinary  v.  Connolly,  75  N.  J.  i"Campbell   v.    Mackie.    i    Dem. 

Eq.,  521,  and  see  Pollard  v.  Bark-  185. 

ley,  fi7  Ind.,  40.     Clark  v.  Knox,  "Post  v.  Stevens.  13  N.  J.  Eq.. 

70  Ala.,  607.     Teague   v.   Corbitt,  293. 

57  Ala.,   529.    Binsse   v.    Paige,    i  ^^pjuck  v.   Lake,  54   N.  J.  Eq., 

Abb.    App.    Dec,    138.      Cook   v.  638. 

Gilmore,    133    111.,    139.      Lent    v.  ^Hn  re  Flaacke's  Estate,  64  Atl. 

Howard,  89  N.  Y.,  169.    Campbell  Rep.,  1020.  Affirmed  72  N.  J.  Eq.. 

V.  Purdy,  5  Redf.,  434.     Clinch  v.  944. 

Eckford,  8  Paige,  412.     Collier  v.  i^Beatty   v.   Trustees.   39   N.    J. 

Munn,  41   N.  Y..   143.     Estate  of  Eq.,  452.     Rerversed  41  N.  J.  Eq.. 

Munn,  Tuck.,  136.  563. 


Counsel  Fees  and  Costs.  411 

to  be,  that  where  an  administrator  so  conducts  an  estate  as  to 
justify  disallowing  any  claim  by  him  for  commissions,  it  is 
improper  to  allow  him  counsel  fees.^^ 

FUND    CHARGEABLE    WITH    ADMINISTRATION 
EXPENSES. 

In  General. 

Where  the  will  contains  no  directions  as  to  expenses  of  ad- 
ministration, specific  legacies  and  bequests  of  specific  sums 
are  not  charged  with  them,  but  are  paid  in  full,  and  the 
expenses  of  administration  are  taken  from  the  residue,  or  such 
assets  as  are  not  disposed  of.  A  testator  can  by  his  will  charge 
such  legacy  with  its  proportion  of  commissions  and  expenses  of 
administration ;  but  for  that  his  direction  must  be  clear  and 
explicit.^" 

35Frey's  Case,  7Z  N.  J.  Eq.,  346.  i«Fo\vler  v.  Colt.  12  N.  J.  Eq.. 

44- 


CHAPTER  XXIV. 

CO-EXECUTORS    AND    CO-ADMINISTRATORS— THEIR 
POWER  AND  AUTHORITY. 

In  General. 

Co-executors,  administrators  and  trustees  are  regarded  in 
law  as  one  person ;  acts  done  by  one  of  several  executors 
which  relate  to  the  delivery,  gift,  sale  or  release  of  the  tes- 
tator's personalty  are  deemed  the  acts  of  all,  and  bind  the 
estate  accordingly.^  So  one  of  several  executors  may  sell  per- 
sonal property  of  the  estate;-  and  where  one  of  two  executors 
sells  assets,  the  co-executor  is  not  entitled  to  the  possession  of 
the  proceeeds  of  such  sale  retained  in  the  hands  of  his  co- 
executor,  except  in  cases  of  fraud,  insolvency,  etc.  f  and  where 
one  of  two  executors  loaned  moneys  of  the  estate  on  a  bond 
and  mortgage,  reserving  usury  thereon  and  appropriating  it 
to  his  own  .use,  it  was  held,  on  foreclosure  by  the  executor 
on  behalf  of  the  estate,  that  such  usury  could  be  set  up  as  a  de- 
fense.^ But  where  a  will  clothed  the  trustees  with  authority, 
in  their  discretion,  to  bestow  upon  a  legatee  during  his  life  such 
portion  or  portions  of  the  trust  property  as  they  might  deem 
proper,  and  it  was  expressly  declared  that  such  gift  was  of 
bounty  merely,  and  in  nowise  matter  of  right  in  making  such 
gifts  the  concurrence  of  both  of  the  trustees  was  held  to  be 
necessary."' 

^Mutual      Life      Ins.      Co.      v.  •'■Fennimore  v.  Feniiimore,  3  N. 

Sturges,  33  N.  J.  Eq.,  328.  J.  Eq.,  292. 

-Hertell  v.  Bogert,  9  Paige  (N.  ^O'Ncil   v.   Cleveland,   30  N.   J. 

Y.),   52.     Sutherland   v.   Brush,   7       Eq.,  273. 

Johns.  Ch.  (N.  Y.),  17.  -Crane  v.   Hearn,  26  N.  J.  Eq.. 

378. 


412 


Co-Executors,  Etc.  413 

Actions  by  Co-Executors,  &c. 

In  actions  by  co-executors  or  administrators  all  must  join 
in  the  suit.® 

Where  One  Executor  Renounces,  or  Neglects  to  Prove 
Will. 

The  executor  or  executors  who  qualify  may  maintain  an 
action  at  law  without  joining  any  executor  who  has  renounced 
or  failed  to  qualify.'^ 

Actions  Against  Co-Executors. 

In  actions  against  several  executors  or  administrators  all 
executors  or  administrators  representing  the  testator  or  in- 
testate shall  be  considered  as  one  person  and  such  of  the 
executors  or  administrators  as  the  sherifif  shall  return  ser\'ed 
shall  answer  to  the  plaintiff;  and  in  case  judgment  shall  pass 
for  the  plaintiff  he  shall  have  his  judgment  and  execution 
against  all  the  executors  of  administrators  named  in  the  writ, 
to  be  made  of  the  goods  and  chattels  of  the  deceased.® 

Indorsement  of  Notes. 

One  of  several  executors  or  administrators  may  assign  a 
note  made  payable  to  the  testator  ;'•*  but  one  of  two  co-ex- 
ecutors cannot  indorse  a  negotiable  promissory  note  made  to 
both  in  their  character  of  executors,"'  and  one  of  several  ex- 
ecutors has  no  power  to  charge  either  the  estate  or  his  co- 
executor  by  indorsing  a  note  in  the  name  of  the  estate,  even 
though  it  be  given  in  renewal  of  one  indorsed  by  the  testator 
in  his  lifetime. ^^ 

''Dickerson  v.  Robinson,  6  N.  J.  \.).  34.    Sanders  v.  Blain,  29  Ky., 

L.,  195.    Ryerson  v.  Ryerson,  4  N.  446. 

J.  L.,  364.     In  re  Coursen's  Will,  "'Smith    v.    Whiting,    9    Mass., 

4  N.  J.  Eq.,  408.  334 ;    but  see  Bogert  v.  Hertell,  4 

^3  Comp.  Stat.,  p.  4058,  sec.  25.  Hill    (N.  Y.),  492,  contra. 

83  Comp.  Stat.,  p.  4058,  sec.  24.  ^iBailey    v.    Spofiford,    14   Hun. 

sDwight  V.  Newell,  15  111.,  333.  (N.  Y.),  86. 
Wheeler  v.  Wheeler,  9  Cow.   (N. 


414  Probate  Law  and  Practice. 

Removing  Bar  of  Statute  of  Limitations. 

The  power  of  a  single  executor  or  administrator  to  remove 
the  bar  of  the  statute  of  Hmitations  by  a  new  promise  has 
been  seriously  questioned,  and  in  some  states  denied;  but  the 
rule  has  been  established  in  this  state  that  such  power  exists, 
and  such  new  promise  made  by  one  of  several  executors  or 
administrators  binds  the  estate  and  does  not  make  the  repre- 
sentatives personally  liable.^" 

Sale  of  Real  Estate. 

Where  executors  are  authorized  by  will  to  sell  and  convey 
real  estate,  it  requires  their  joint  action  to  carry  out  the  in- 
tention and  direction  of  the  testator.  It  is  the  discretion  of 
all  his  executors  upon  which  a  testator  relies  when  he  au- 
thorizes them  to  sell  his  real  estate,  and  if  one  of  them  re- 
fuses to  act,  the  others  cannot  sell.^"  So  if  a  power  of  sale 
is  given  to  three  executors  by  name,  and  the  testator  by  codicil 
revokes  the  appointment  of  one  and  appoints  a  fourth,  the 
original  two  and  the  third  appointed  by  the  codicil  must  ex- 
ecute the  power. ^^ 

Where  Co-Executor  Fails  to  Qualify,  Dies,  Resigns,  or 
Is  Removed. 

It  is  provided  by  statute  that  where  one  of  several  executors 
fails  to  qualify,  dies,  is  discharged  or  removed,  or  predeceases 
the  testator,  the  trusts  in  the  said  will  thereupon  vest  in  the 
other  executors  in  said  will  named  and  in  the  survivor  of  them 
unless  otherwise  expressed  in  the  will,  and  that  it  is  lawful  for 
such  acting  or  surviving  executor  or  executors  to  execute  any 
power  of  sale  conferred  by  said  will.  This  subject  will  be 
found  more  fully  treated  elsewhere. ^^ 

i-Shreve  v.  Joyce,  36  N.  J.  L.,  J.  Eq.,  281.  s.  c,  ib..  476.     Shelton 

44.     Everitt  V.  Williams,  45  N.  J.  v.  Homer,  5  Met.  (Mass.),  462. 
L.,   140.     First  National  Bank  of  i*Pratt  v.  Rice,  7  Cush.  (Mass.) 

Freehold  v.  Thompson,  61    N.  J.  209. 
Eq.,   188.  i"'See  "Surviving  Executor  May 

i^Holcombe  v.  Holcombe,  11  N.  Execute  Power,"  p.  436,  infra. 


Co-Executors,  Etc.  415 

Estate  in  and  Conveyance  of  Lands  Purchased  by  Co-Ex- 
ecutors at  Foreclosure  Sale. 
The  statute  provides  that  where  executors  or  administrators 
purchase  lands  covered  by  any  mortgage  forming  a  part  of 
the  assets  in  their  hands,  at  a  sale  upon  the  foreclosure  of  such 
mortgage,  they  will  be  vested  by  such  conveyance  with  an 
estate  in  joint  tenancy,  and  the  said  lands  will  be  assets  in 
their  hands  for  the  payment  of  debts  and  may  be  sold  by 
them  without  any  order  of  court;  and  where  any  such  ex- 
ecutor or  administrator  dies  or  is  removed,  the  survivors  may 
convey  the  same.  The  full  text  of  this  statute  will  be  found 
elsewhere.  ^"^ 

Investment^. 

Where  a  will  authorizes  executors  to  invest  in  good  pro- 
ductive real  estate  at  their  discretion,  no  investments  can  be 
made  without  the  consent  of  all  of  several  joint  executors.^' 
Postponement,  Release  and  Satisfaction  of  Mortgages. 

One  of  two  executors  may  consent  to  the  postponement  of 
the  lien  of  a  mortgage  held  by  their  testator.^-  or  may  release 
a  mortgage.''*  So  one  of  two  executors  may  execute  a  valid 
satisfaction  piece  of  a  mortgage  belonging  to  the  estate, -''  and 
this  though  it  be  payable  to  the  co-executors.-' 

Assignment  of  Mortgages. 

One  of  two  executors  may  assign  a  mortgage  belonging  to 
their  testator's  estate,"  even  if  made  to  both  of  them  as 
part  of  the  purchase  price  of  land  sold  by  them  under  a  tes- 
tamentary power. -^ 

i«See  "Lands  Purchased  by  Ex-  ="Stuyvesant    v.    Hall,    2    Barb, 

ecutor,  &c.,  at  Foreclosure  Sale,"  Ch.     (N.    Y.),    151.      Fesmire    v. 

p.  424,  infra.  Shannon,   143  Pa.  St..  201. 

^■^Holcombe  v.  Holcombe,  11  N.  -^People  v.  Miner,  2>7  Barb.  (N. 

J.  Eq.,  281.     S.  C,  ib.,  476.    Crane  Y.),    466.      Fesmire    v.    Shannon. 

V.  Hearn,  26  N.  J.  Eq.,  378-382.  143  Pa.  St.,  201. 

i^Mutual  Life  Ins.  Co.  v.  Stur-  22Q<jorge     y      Baker,     3     Allen 

ges,  2,i  N.  J.  Eq.,  328.  (Mass.),    326n. 

isDevling  v.   Little,  26  Pa.   St..  "Bogert  v.  Hertell,  4  Hill   (N. 

502.     Weir    V.    Mosher.    19   Wis.,  Y.),  492,    reversing  9   Paige    (N 

311.     Stuyvcsant  v.  Hall,  2  Barb.  Y.),  52  and  3  Edw.  Ch.   (N.  Y.) 

Ch.   (N.  Y.).   151.  20. 
28 


4i6  Probate  Law  and  Practice. 

Release  of  Debts  Due  Estate. 

One  of  several  executors  may  release  a  debt  due  to  the 
decedent."^ 

LIABILITY    OF    CO-EXECUTORS    FOR    ACTS    OF    EACH 

OTHER. 

In  General. 

Executors  are  not  liable  for  each  other's  acts,  or  responsible 
for  the  money  which  comes  to  each  other's  hands,  unless  they 
can  be  implicated  in  the  misconduct  of  the  co-executor.-'^' 
The  general  rule  is  that  an  executor,  administrator,  guardian 
or  trustee  is  liable  for  no  more  than  he  receives.-**  So  if  the 
funds  of  the  estate  be  once  properly  invested,  the  securities 
may  be  lodged  in  the  hands  of  one  trustee,  and  he  be  permitted 
to  collect  the  interest  and  pay  it  over  to  the  tenant  for  life, 
and  the  other  trustee  will  not  be  liable  for  default  in  paying 
over  the  interest  until  he  has  notice  of  some  default  or  mis- 
conduct on  the  part  of  his  co-trustee.-'  So  where  an  executor 
occupies  real  estate  belonging  to  the  estate,  under  an  agree- 
ment with  his  co-executor,  at  a  monthly  rental,  and  the  oc- 
cupant fails  to  account  for  the  rent,  the  co-executor  is  not  re- 
sponsible for  such  rent ;  the  rent  was  an  asset  that  came  to  the 
hands  of  his  co-executor,  for  which  he  has  not  been  shown  to 
be  responsible.  The  general  rule  must,  then,  prevail  that  an 
executor,  except  he  be  guilty  of  culpable  negligence  or  fraud, 
whereby  an  asset  in  the  hands  of  a  co-executor  is  lost  or  im- 
paired in  value,  is  not  answerable  for  more  of  the  estate  than 

-*Shaw   V.   Berry,   35   Me.,   279.  can  v.  Davison,  40  N.  J.  Eq.,  535- 

Oilman    v.    Healy,    55    Me.,    120.  Bechtold   v.   Read,  49  N.'  J.   Eq.. 

Murray    v,   Blatchford,    i    Wend.  111-118,    reversed,    54    N.    J.    Eq., 

(N.  Y.),  583.    Wheeler  v.  Wheel-  407.     Dyer  v.  Riley,  51  N.  J.  Eq., 

er,  9  Cow.   (N.  Y.),  34.  124. 

-^3  Williams  on  Executors.  1727.  -^Fennimore  v.  Fennimore,  3  N. 

Bellerjeau   v.    Kotts,   4   N.   J.   L.,  J.    Eq.,    292.     English   v.    Newell, 

359.     Vanpelt  v.  Veghte,  14  N.  J.  42  N.  J.  Eq.,  -jd.    Affirmed,  43  N. 

L.,  207.     Shreve  v.  Joyce,  36  N.  J.  Eq.,  295. 

J.   L.,   44-     Fennimore    v.    Fenni-  -^Dyer  v.   Riley.   51    N.  J.   Eq.. 

more,  3  N.  J.  Eq.,  292.     Merselis  124.     But  see  Fisher  v.  Skillman, 

V.  Merselis,  7  N.  J.  Eq.,  557.    Dun-  18  N.  J.  Eq.,  229. 


Co-Executors,  Etc.  "  417 

he  receives.-*  So  where  one  executor  alone  executes  a  con- 
veyance of  lands  and  receives  the  proceeds  of  the  sale,  his  co- 
executors  are  not  jointly  chargeable  with  such  proceeds.-" 

If  one  executor  receives  assets  of  the  estate  upon  his  own 
authority,  and  his  co-executor  is  merely  passive  and  does 
nothing  himself  towards  receiving  it,  the  former  is  alone  re- 
sponsible.^" So  where  two  executors  qualified  and  received 
letters  testamentary,  but  the  inventory,  though  made  in  the 
names  of  both,  was  signed  only  l)y  one  and  the  appraisers,  and 
it  was  admitted  that  the  executor  who  signed  the  inventory  ad- 
ministered the  estate  almost  wholly  alone,  and  that  his  co- 
executor  never  had  possession  of  any  of  the  assets,  and  both 
executors  died  without  rendering  any  account,  it  was  held 
that,  in  the  absence  of  any  evidence  that  the  acting  executor 
misapplied  the  funds  received  by  him,  the  estate  of  the  co- 
executor   would  not  be   charged   with   any   portion   thereof. ^^ 

Nature  of  Liability. 

The  liability  to  make  good  a  loss  resulting  from  a  breach 
of  trust  participated  in  by  more  than  one  executor  or  trus- 
tee is  both  joint  and  several,  so  that  each  guilty  trustee  is 
liable  for  the  whole  loss.^- 

Permitting  Possession   of   Assets   by   Associate. 

Where  an  executor  possessing  assets  of  his  testator  hands 
them  over  to  his  co-executor,  who  misapplies  them,  the  ex- 
ecutor so  parting  with  the  possession  of  assets  of  the  estate 
will  be  answerable  for  their  misapplication,  unless  he  can  show 
good  reason  for  having  so  acted. ■'■'  So  where  executors  all 
join  in  making  an  assignment  and  an  acknowledgment  of  the 
receipt  of  money,  and  allow  one  of  their  number,  who  is  the 

2«Tichenor   v.   Tichenor,    43    N.  '•' ^'oung  v.  Schelly.  21  Atl.  Rep., 

J.   Hq.,    163.     Affirmed,   45   N.   J.  1049. 

Eq.,  303.  -'-Proprietors    of    Eastern    New 

20Bechtold  v.  Read,  28  All.  Rep.,  Jersey  v.  Force,  72  N.  J.  Eq.,  56- 

264.  T28. 

•"^King  V.  Foerster,  61  N.  J.  Eq.,  '■'■'•^  Williams  on  Executors,  1727. 

584.     English  V.  Newell,  42  N.  J.  Fisher  v.  Skillman,   18  N.  J.  Eq.. 

Eq.,  76.     Affirmed,  43  N.  J.  Eq.,  229.     But   see    Dyer   v.   Riley,    51 

295.  N.  J.   Fq.,    124. 


4i8  Probate  Law  and  Practick. 

obligor  and  mortgagor,  to  complete  the  transaction,  they,  will 
all  be  held  accountable  for  the  loss."*  So  executors  who  join 
in  executing  a  conveyance  of  testator's  lands  are  jointly 
chargeable  with  the  proceeds  of  the  sale,  where  it  does  not 
appear  how  much  each  received  f'^  and  so  where  an  executor 
by  signing  checks  in  blank  enabled  his  co-executor  to  draw 
and  misappropriate  the  funds  of  the  estate,  he  was  chargeable 
with  the  amount  misappropriated.^*^ 

Permitting  Breach  o£  Trust  by  Associate. 

The  rule  in  regard  to  the  liability  of  an  executor  for  money 
not  received  by  him,  but  received  and  wasted  or  misapplied  by 
his  co-executor,  is,  that  if  he  knows  that  the  assets  received 
by  his  co-executor  are  not  being  applied  according  to  the  trusts 
of  the  will,  or  in  the  due  course  of  administration,  and  stands 
by  and  acquiesces  in  it,  or  suffers  the  assets  to  be  wasted  by 
his  co-executor  without  any  efifort  to  require  or  compel  a  due 
execution  of  the  trusts  and  a  due  application  of  the  assets  in 
the  course  of  the  administration  thereof,  he  will  be  held  liable 
for  any  waste  or  misapplication  of  such  assets ;  but  that  it 
is  otherwise  if  he  has  no  knowledge  of  such  misapplication  or 
waste. ^" 

The  rule  established  by  our  decisions  is  that  each  trustee 
must  exercise  reasonable  diligence  with  respect  to  his  ap- 
]:)robation  of  and  acquiescence  in  the  acts  of  his  co-trustees.^^ 
Thus,  if  a  trustee  by  his  own  negligence  suffers  his  co-trustee 
to  receive  and  waste  the  trust  fund,  he  will  be  held  responsible 
for  the  loss  f°  and  in  such  case  an  executor  will  be  liable  for 
the  acts  of  his  co-executor,  even  though  the  will  provide  that 
neither  executor  should  be  liable  for  the  acts,  omissions  or  de- 
faults of  the  other.*"    So  where  an  executor  invested  funds  of 

^^Bechtold    v.    Read,    49    N.    J.  295.      Young    v.    Schelly,    21    Atl. 

Eq.,  III.     Reversed,  54  N.  J.  Eq.,  Rep.,  1049. 

407.  3.sHili  V.  Hill.  79  N.  J.  Eq.,  521. 

■^-'Bechtold  v.  Read.  28  Atl.  Rep.,  •'"'Laroe   v.    Douglass,    13   N.   J. 

264.  Eq.,  308.     Schenck  v.  Schenck.  16 

36In  re  Ramsey's  Estate.  66  Atl.  N.  J.  Eq.,  174.    Bechtold  v.  Read, 

Rep,,  410.  49  N.  J.  Eq.,  in,  reversed,  54  N. 

^"English   V.    Newell,   42    N.   J.  J.  Eq.,  407. 

Eq..   76.     Affirmed,  43   N.   J.  Eq.,  *"Crane  v.  Hearn.  26  N.  J.  Eq., 

37^. 


Co-Executors.  Etc.  419 

the  estate  in  a  second  mortgage  and  in  an  unsecured  promis- 
sory note,  both  of  which  proved  worthless,  and  such  executor 
admitted  his  UabiHty  and  promised  to  indemnify  the  estate 
therefor,  it  was  held  in  a  suit  by  his  co-executor  against  his 
executors  and  legatees  that  the  latter  were  liable  for  the  amount 
of  these  investments;*^  but  a  stale  claim  by  the  children  of  de- 
ceased executors  against  a  surviving  executor,  sought  to  be 
enforced  more  than  twenty  years  after  the  occurrence  of  the 
transaction  out  of  which  his  alleged  liability  arose,  and  not 
until  after  the  death  of  the  executor,  will  not  be  favored  in 
equity. *- 

Individual  Interest  in  Transactions. 

A  sale  by  one  of  two  executors  of  personal  assets  to  a  firm 
of  which  his  co-executor  is  a  member  is  not  void,  in  the  ab- 
sence of  fraud,  but  is  liable  to  be  set  aside  in  equity,  on  ac- 
count of  fraud  or  for  inadequacy  of  consideration.*"'  So 
where  one  of  two  executors  collected  money  due  the  estate, 
without  his  co-executor's  knowledge,  and  in  order  to  secure  O 
the  estate  gave  a  mortgage  on  his  own  lands  payable  to  him- 
self and  his  co-executor,  from  which  mortgage  nothing  was 
realized  for  the  estate,  it  was  held  that  the  delinquent  ex- 
ecutor was  not,  by  giving  the  mortgage,  exonerated  from  lia- 
bility to  his  co-executor.** 

Duty  of  Trustee  to  Protect  Estate  from  Misfeasance  of 
Co-Trustee. 

It  is  the  duty  of  one  trustee  to  protect  the  trust  estate  from 
any  misfeasance  by  his  co-trustee,  upon  being  made  aware  of 
the  intended  act,  by  obtaining  an  injunction  against  him,  or. 
if  the  wrongful  act  has  already  been  committed,  to  take  meas- 
ures by  suit,  or  otherwise,  to  compel  the  restitution  of  the 
property,  and  its  application  in  the  manner  required  by  the 

*' Crane  v.  Howell,  35  N.  J.  Eq.,  Eq.,  372,  and   see  "Right  of   Ex- 

374.  ecutor  to   Purchase   at   His   Own 

^-Barnes  v.  Taylor,  27  N.  J.  Eq.,  Sale,"  p.  450,  infra. 
259.  ■♦''Storms  V.  Quackenbush,  34  N. 

♦^Colgate   V.   Colgate,   23   N.  J.  J.   Eq.,  201. 


420  Probate  Law  and  Practice. 

trust.*"'  So  if  an  executor,  knowing  that  his  co-executor  is 
wasting  or  misapplying  the  funds  of  the  estate,  neglects  to  take 
steps  to  prevent  further  waste,  he  will  be  responsible  for  any 
loss  through  such  devastavit  of  his  co-executor;***  and  so, 
if  one  of  two  executors  having  funds  in  his  hands  is  prevented 
])y  the  misconduct  of  his  co-executor  from  making  an  invest- 
ment directed  by  the  will,  it  is  his  duty  to  guard  the  estate 
from  loss  by  applying  within  a  reasonable  time,  in  the  proper 
court,   for  instructions.*' 

Where  a  trustee  neglects  to  take  proper  action  to  restrain 
his  co-trustee  from  wasting  the  estate,  he  will  be  liable  for 
such  waste,  notwithstanding  an  indemnity  clause  in  the  will, 
providing  that  neither  trustee  should  be  held  responsible  for 
the  acts,  omissions  or  defaults  of  the  other,  in  which  they 
should  not  jointly  participate  or  of  which  they  should  not  be 
jointly  guilty  and  limiting  their  liability  respectively  to  ordi- 
nary care,  diligence,  and  fidelity.*^ 

Effect  of  Acquiescence  of  Cestui  Que  Trust. 

A  long  continuance  of  an  arrangement  whereby  one  ex- 
ecutor had  entire  control  and  management  of  the  estate  funds 
with  the  knowledge  of  the  cestui  que  trust  will  estop  the  latter 
after  long  default  in  the  payment  of  interest,  from  looking  to 
the  other  executor  ;*^  and  where  one  of  three  executors  took 
possession  of  and  separately  accounted  for  the  entire  estate. 
without  exception  on  the  part  of  the  beneficiaries,  his  co-ex- 
ecutors are  not  liable  to  be  called  to  account  therefor.''" 

^•"'Crane  v.  Hearn,  26  N.  J.  Eq.,  ^'Holcombe  v.  Holcombe,  13  N. 

378.     Smith   V.   Pettigrew,   34   N.  J.  Eq.,  413. 

J.  Eq.,  216.     Crane  v.  Howell,  35  ^^Crane  v.  Hearn.  26  N.  J.  Eq., 

N.  J.   Eq.,  374.     Hill  V.  Hill,   79  378.     Tuttle  v.  Gilmore,  36  N.  J. 

N.   J.   Eq.,    521-543-  Eq.,   617. 

^GSmith  V.   Pettigrew,  34"  N.  J.  ^^Dyer  v.   Riley,   51    N.  J.   Eq., 

Eq.,  216.     Crane  v.  Howell,  35  N.  124. 

J.  Eq.,  374.     Laroe   v.   Douglass,  ^°Duncan  v.  Davi?on,  40  N.  J. 

13  N.  J.  Eq.,  308.  Eq.,  535- 


Co-Executors,  Etc.  421 

ACTIONS  BETWEEN  CO-EXECUTORS. 
In  General. 

One  of  several  executors  cannot  sue  his  co-executors  at 
law,^^  but  such  an  action  may  be  maintained  in  equity.^-  An 
executor  who  has  renounced  may,  however,  sue  the  acting 
executor  at  law  ;'^  and  so  an  executor  who  his  not  qualified 
may  maintain  an  action  at  law  against  those  executors  who 
have  qualified,^*  nor  is  it  necessary  to  enable  him  to  do  so  that 
he  should  formally  renounce.^"' 

The  orphans'  court  has  no  power  to  allow  one  executor  the 
amount  of  a  debt  which  he  insists  is  due  him  from  the  tes- 
tator's estate,  or  of  a  fee  which  he  claims  to  have  paid  counsel 
for  advice  in  regard  to  the  estate,  if  his  co-executor  dispute 
such  claims  f^  the  suit  should  be  brought  in  the  Court  of 
Chancery.^'  So  the  Court  of  Chancery  has  jurisdiction  of  a 
suit  instituted  by  an  executor  to  ascertain  and  settle  the  amount 
due  upon  a  claim  made  by  his  co-executor  against  the  estate  of 
decedent,^*  or  of  a  suit  by  an  administrator  against  a  co-ad- 
ministrator, when  the  defendant  is  charged  with  misconduct  as 
to  the  assets  of  the  estate,  which  jeopardizes  the  rights  of 
those  interested  therein,^''  or  of  a  suit  by  an  executor  jigainst 
his  co-executor  on  a  bill  for  board  and  attendance  furnished 
testator."" 

^^Cole  V.  Wooden,  18  N.  J.  L.,  -"'^Woodward     v.     Lord     Darcy, 

15.     Rinehart  v.   Rinehart,    15   N.  Plowd.,  184.     Rawlinson  v.  Shaw, 

J.    Eq.,   44-45-     Ransom   v.    Geer.  3  T.  R.,  557. 

30  N.  J.  Eq.,  249,  and  cases  cited  ■'•'Middleton  v.  Middleton,  35  N. 

on   p.   251.  J.  Eq.,  115. 

"^Ransom  v.  Geer,  30  N.  J.  Eq.,  ^^Muller  v.  Muller,  76  N.  J.  Eq., 

249,    and    cases    cited    on    p.    251.  158.     Ludlow  v.  Ludlow,  4  N.  J. 

Petty  V.  Young,  43  N.  J.  Eq.,  654.  L.,   189. 

Matthews  v.   Hoagland,  48  N.  J.  ^^Ransom  v.  Geer,  30  N.  J.  Eq., 

Eq.,    455.  249.      Petty    v.    Young,    43    N.    J. 

^^Rawlinson   v.   Shaw,  3  T.  R.,  Eq.,  654. 

557.  '''OMatthews  v.  Hoagland,  48  N. 

'*2  Williams  on  Executors,  1182.  J.  Eq.,  455. 

Dorchester    v.    Webb,    W.    Jones,  "oEly  v.  Ely,  50  Atl.  Rep.,  657. 

345.    And  see  Marsh  v.  Oliver,  14  Affirmed,  64  N.  J.  Eq.,  790. 
N.  J.  Eq.,  259. 


422  Probate;  Law  and  Practice. 

Proceedings  by  Executor  to  Compel  Co-Executor  to  Ac- 
count. 

Whenever  there  are  two  or  more  acting  executors,  adminis- 
trators, guardians  or  trustees,  the  orphans'  court  may,  from 
time  to  time,  on  appHcation  by  any  one  or  more  of  them,  upon 
sufficient  reasons  given  therefor,  order  and  direct  every  such 
executor,  administrator,  guardian  or  trustee  to  acount  with 
his  co-executor,  administrator,  guardian  or  trustee  for  all 
assets  which  have  come  to  the  hands  of  such  executor,  admin- 
istrator, guardian  or  trustee,  and  the  said  court  may  also, 
upon  good  cause  shown,  require  any  executor,  administrator, 
guardian  or  trustee  under  a  will,  to  give  bond,  in  such  sum 
and  with  such  sureties  as  the  court  may  approve,  to  his  co- 
executor,  administrator,  guardian  or  trustee,  conditioned  to 
indemnify  him  from  all  loss  that  may  happen  to  him  by  the 
neglect,  default  or  breach  of  trust  of  such  executor,  adminis- 
trator, guardian  or  trustee,  or  the  like  bond  to  the  ordinary, 
conditioned  for  the  faithful  performance  of  his  duties  as  such 
executor,  administrator,  guardian  or  trustee,  and  for  the  pay- 
ment, and  delivery,  to  the  person  that  may  be  entitled  to  re- 
ceive the  same,  of  any  money  or  property  that  may  then  or 
thereafter  be  in  his  haiids,  as  such  executor,  administrator, 
guardian  or  trustee.''^ 

Notice  of  Application. 

The  statute  requires  that  twenty  days  notice  be  given  to  such 
executor,  administrator,  guardian  or  trustee  of  such  applica- 
tion to  the  court,  and  of  the  reasons  theref or.®- 

When  Account  Will  Be  Ordered. 

The  application  and  order  for  a  citation  to  account  must  be 
upon  sufficient  cause  shown ;  but  an  executor  cannot  call  upon 
his  co-executor  to  account  jointly. ^^ 

^^Orphans'  Court  Act,  sec.  138.  •'^Lu^iiq^  y    Ludlow,  4  N.  J.  L., 

3  Comp.  Stat.,  3865.  189-191. 

"^Orphans'  Court  Act,  sec.  138. 
3  Comp.  Stat.,  3865. 


Co-Executors,  Etc.  423 

Breaches  of  Bond. 

A  failure  to  settle  a  final  account  in  the  orphans'  court  is  a 
breach  of  the  bond  of  an  executor  given  under  this  act ;  but 
the  non-payment  of  a  legacy  cannot  be  assigned  as  a  breach  of 
such  bond,  without  showing  a  settlement  of  the  executor's  ac- 
counts in  the  orphans'  court,  and  a  balance  in  his  hands  for  the 
payment  of  debts.*^* 

*^*Ordinary   v.   Barcalow,   36   N. 
J.  L.,  15. 


CHAPTER  XXV. 
REAL  PROPERTY  AND  INTERESTS  THEREIN. 
Authority  of  Executor  or  Administrator. 

An  administrator  has  nothing  whatever  to  do  with  the  real 
estate  of  his  decedent.  The  only  possible  interest  he  can 
ever  have  in  it  is  through  the  orphans'  court,  for  the  pay- 
ment of  debts. ^  An  executor  has  only  such  power  and  con- 
trol over  the  realty  of  his  testator  as  is  given  him  by  the  will." 
The  general  rule  is  that  executors  and  administrators  have  no 
right  to  apply  any  part  of  the  personal  estate  to  the  benefit  of 
the  realty,  whether  for  improvements,  repairs  or  insurance  f 
but  an  executor  vested  with  absolute  power  to  sell  real  estate 
may  do  all  that  is  necessary,  in  the  way  of  insurance,  repairs 
and  taxes,  to  preserve  the  property  until  sale  ;*  and  so  where 
lands  are  held  by  the  executor  in  trust.''  Repairs  and  in- 
surance paid  by  an  executor  or  administrator  cannot  be  cred- 
ited to  him  as  payments  made  to  the  devisees,  in  the  absence 
of  any  agreement  between  them  f  and  where  executors  are 
given  no  estate,  but  only  a  mere  power  to  sell  lands  after  a  cer- 
tain time,  upon  the  failure  of  a  certain  person  to  purchase,  they 
have  no  authority  to  make  repairs." 

Lands  Purchased  by  Executor,  &c.,  at  Foreclosure  Sale. 

Where  executors  and  administrators  heretofore  have  and 
shall    hereafter   become    purchasers    of    lands,    tenements    or 

iLake  v.  Weaver,  80  N.  J.  Eq..  ^See  "Taxes  on  Land  Held  by 

395-399-     Affirmed,  ib.,  554.  Executor  in  Trust."  p.  426,  infra. 

-Nelson  v.  Nelson,  36  Atl.  Rep.,  *''Aldridge  v.  McClelland,  36  N. 

280.  J.    Eq.,   288.     Affirmed,   38    N.   J. 

^Aldridge  v.  McClelland,  36  N.  Eq.,  279. 

J.   Eq.,   288.     Affirmed,   38   N.   J.  ^Ashby  v.  Ashby,  59  N.  J.  Eq., 

Eq.,  279.  547. 

^Howard   v.    Francis,   30   N.   J. 
Eq.,  444. 


424 


Real  Property.  425 

hereditaments  covered  by  any  mortgage  forming  a  part  of  the 
assets  of  the  estate  in  their  hands  at  a  sale  upon  a  foreclosure 
of  any  such  mortgage,  the  conveyance  of  the  title  to  the  lands, 
tenements  or  hereditaments  so  purchased  shall  be  construed 
to  have  vested  and  to  vest  an  estate  in  joint  tenancy  in  such 
executors  or  administrators,  and  the  lands,  tenements  or 
hereditaments  so  conveyed  shall  be  assets  in  their  hands  and 
may  be  sold  and  conveyed  by  them  without  any  order  of  the 
court,  and  they  shall  be  accountable  for  and  pay  over  the  pro- 
ceeds of  such  sales  as  other  estate  moneys  in  their  hands,  and 
where  any  executor  or  administrator  shall  have  died  or  been 
removed  from  office  by  any  court  of  competent  jurisdiction,  or 
shall  hereafter  die  or  be  removed  from  office  by  any  court  of 
competent  jurisdiction,  then  and  in  every  such  case,  any  sale 
or  conveyance  of  such  lands,  tenements  or  hereditaments  made 
by  the  surviving  or  acting  executor  or  executors,  administrator 
or  administrators,  or  made  by  an  administrator  or  adminis- 
trators cum  testamento  annexo,  or  administrator  or  adminis- 
trators of  intestates'  estates  appointed  by  any  court 'of  com- 
petent jurisdiction  in  the  place  and  stead  of  such  deceased  or 
removed  executor  or  administrator,  shall  be  construed  to  have 
vested  and  to  vest  in  the  purchaser  or  purchasers,  grantee  or 
grantees,  the  title  to  such  lands,  tenements  or  hereditaments,  in 
the  same  manner  and  as  fully  to  all  intents  and  purposes  as  if 
all  had  been  living  or  acting  and  had  joined  in  such  con- 
veyance.* 

Where  Executor,  &c.,  Purchases  Lands  by  Mistake. 

Whenever  any  executor,  administrator,  guardian  or  trustee 
shall  have  heretofore  with  the  funds  or  any  part  thereof,  in 
his  or  her  possession  as  such  executor,  administrator,  guardian 
or  trustee,  purchased  any  real  estate  as  executor,  administrator, 
guardian  or  trustee,  under  a  mistake  or  misapprehension  of 
the  right  to  do  so,  and  such  executor,  administrator,  guardian 
or  trustee  was  not  permitted  by  law  or  by  his  or  her  trust  to 
make  such  investment,  such  executor,  administrator,  guardian 
or  trustee  shall  have  the  power  to  resell  said  land  or  lands,  in 

*P.   L.    1898,   p.   42.     2   Comp. 
Stat.,  p.  2264,  section   17. 


426  Probate  Law  and  Practice. 

his  or  her  name  as  such  executor,  administrator,  guardian  or 
trustee,  or  otherwise,  and  give  a  good  and  sufficient  deed 
therefor ;  proi'ided,  that  nothing  herein  contained  shall  be  con- 
strued to  release  from  liability  to  the  estate  such  executor,  ad- 
ministrator, guardian  or  trustee,  by  reason  of  such  improper 
investment.^ 

Rents  and  Profits. 

An  administrator  has  no  right  to  rents  of  lands  of  his  in- 
testate accruing  after  his  death  ;^"  and  executors  have  only 
such  power  as  has  been  conferred  upon  them,  either  directlv 
or  indirectly,  by  the  will  of  their  testator.^^  If,  however,  ex- 
ecutors or  administrators  collect  rents  under  a  mistaken  belief 
that  they  have  power  so  to  do,  they  will  be  required  to  ac- 
count for  them;^-  and  if  an  executor  occupies  and  uses  the 
lands  of  his  decedent,  he  will  be  required  to  account  for  the 
value  of  the  estate  so  enjoyed  by  him.^^ 

Taxes. 

Where  a  testator  owning  real  estate  dies  after  the  date  fixed 
by  law  on  which  taxes  shall  be  assessed,  the  personal  estate  is 
chargeable  with  the  payment  of  the  taxes  assessed  for  that 
year,  which  should  be  paid  by  the  personal  representative;^* 
on  the  other  hand,  taxes  assessed  after  decedent's  death  are 
not  to  be  paid  by  the  executors.^''  It  is  otherwise,  however, 
as  has  been  seen  above,  where  the  executor  is  vested  with  an 
absolute  power  of  sale.^" 

Taxes  on  Lands  Held  by  Executor  in  Trust. 

Executors  will  be  allowed  for  taxes  and  municipal  assess- 
ments paid  on  property  held  in  trust  by  them  under  the  will, 

aP.  L.  191S,  p.  358.  J^Bray  v.   Neill,   21    N.   J.   Eq.. 

^°Allen  V.   Van   Houten,   19   N.  343. 

J.  L.,  19.  ^^Shearman  v.  Cameron,  76  N. 

liSee    "Assets— Real    Property  J.  Eq.,  426. 

and    Interests    Therein,"    p.    350,  ispoi^emus  v.  Middleton,  37  N. 

supra.  J.    Eq.,    240.      Willcox    v.    Smith, 

i^Brearley  v.  Brearley,  9  N.  J.  26  Barb.,  316. 

■^^•'  2^-  i^Howard  v.  Francis,  30  N.  J. 

Eq.,  444. 


Real  Property.  427 

though  not  where  the  property  is  occupied  by  one  who  is  ten- 
ant for  hfe  thereof  ;^'  and  this  even  though  the  statute  under 
which  such  assessment  was  levied  was  afterwards  declared 
unconstitutional.^** 

Discharge  of  Encumbrances. 

The  personal  representative,  not  being  concerned  with  the 
realty,  has  no  right,  as  a  general  rule,  to  pay  encumbrances 
thereon.  The  heir  or  devisee  of  a  decedent  has,  however,  the 
right  to  call  upon  the  executor  or  administrator  to  exonerate, 
from  the  personal  estate,  lands  descended  or  devised  from  a 
mortgage  thereon  which  constitutes  a  personal  debt  of  de- 
cedent, unless  the  testator  has  expressed  his  intention  to  the 
contrary  in  plain  and  unequivocal  terms.  The  reason  of  the 
rule  is  that  the  personal  estate  is  presumed  to  have  had  the 
benefit  of  the  money  for  which  the  mortgage  was  given,  and 
therefore  has  the  duty  of  discharging  the  debt.'^ 

FULFILLMENT   OF   CONTRACT   OF   DECEDENT. 
Contracts  of  Decedent  for  Sale  of  Lands. 

When  any  testator  or  intestate  shall  in  his  or  her  lifetime 
have  made  any  agreement  for  the  sale  or  conveyance  of  any 
lands,  tenements  or  hereditaments  within  this  state,  and  the 
purchase  price  shall  have  been  paid  therefor  by  the  purchaser, 
and  the  said  purchaser  shall  have  been  placed  in  the  possession 
of  such  lands,  tenements  or  hereditaments  by  such  testator 
or  intestate,  or  when  any  testator  or  intestate  shall  in  his  or 
her  lifetime  have  made  any  contract  in  writing  for  the  sale  or 
conveyance  of  any  lands  within  this  state,  the  executor  or  ad- 
ministrator of  such  testator  or  intestate,  or  the  purchaser,  or 
his  or  her  legal  representatives  or  assigns,  may  apply  to  the 
orphans'  court  of  the  county  in  which  such  lands  lie,  for  the 
fulfillment  of  such  contract ;  provided,  such  application  be 
made  within  five  years  from  the  date  of  such  contract  or  mak- 

I'Dey  V.  Codman,  39  N.  J.  Eq..  '"Keene  v.  Munii.  16  X.  J.  Eq.. 

258.    Brokaw  v.  Brokaw.  41  N.  J.  398.  and  see  "Wlicre  Debt  is  Se- 

Eq.,   304.  cured  by  MortRapre."  p.  546,  infra. 

i^Dey  V.  Codman,  39  N.  J.  Eq..  where  the  sul)ject  is  fully  consid- 

258.  cred. 


428  Probate  Law  and  Practice. 

ing  of  such  agreement,  except  in  the  case  of  continuous  or 
other  contracts,  or  agreements  of  such  nature  that  the  comple- 
tion or  performance  of  said  contracts  or  agreements  within  the 
said  period  of  five  years  from  the  date  thereof  is  impossible,  in 
which  case  the  fulfillment  of  such  contract  or  agreement  may 
be  ordered  as  in  the  manner  hereinafter  provided  for,  in  the 
discretion  of  the  said  orphans'  court. -° 

Proceedings  to  Enforce  Such  Contracts. 

The  application  to  the  court  for  the  fulfillment  of  such  con- 
tract or  agreement  shall  be  in  writing,  and  shall  set  forth  such 
contract,  and  a  description  of  the  lands  afifected,  and  such  other 
facts  as  may  be  pertinent  to  the  matter,  and  the  same  shall  be 
verified  by  the  oath  or  affirmation  of'the  petitioner.  Upon  the 
presentation  of  said  application,  the  court  shall  designate  a 
time  and  place  for  hearing  the  same  and  direct  such  notice  of 
such  application  to  be  given  as  the  court  may  deem  sufficient, 
which  notice  shall  be  published  in  at  least  two  newspapers 
published  in  the  county  where  the  land  is  situated  and  posted 
for  at  least  the  time  and  in  the  manner  as  advertisements  for 
the  sale  of  lands  by  a  sheriff  under  execution  are  or  may  be 
by  law  required  to  be  set  up  and  published,  and  the  court,  upon 
proof  of  such  publication,  and  of  the  facts  set  forth  in  the  last 
preceding  section,  and  of  the  compliance  with  said  order,  on 
the  day  appointed,  or  at  some  subsequent  time  to  which  the 
hearing  may  then  be  adjourned  shall  hear  the  allegations  and 
objections,  if  any,  of  parties  interested,  and  if  such  contract  or 
agreement  and  such  facts  as  are  set  forth  in  the  preceding  sec- 
tion shall  be  duly  proved  to  the  satisfaction  of  the  court,  and 
no  sufficient  cause  to  the  contrary  shall  appear,  it  shall  be  law- 
ful for  the  court  to  decree  the  fulfillment  of  such  contract, 
which  decree,  together  with  the  written  contract,  shall  be  en- 
tered of  record  in  the  minutes  of  the  court,  and  such  contract, 
where  there  is  a  written  contract,  and  in  other  cases  a  copy  of 
the  evidence  and  a  copy  of  the  papers  produced  in  evidence, 
shall  be  filed  in  the  office  of  the  clerk  of  the  said  court,  and  the 

20Orphans'  Court  Act,  sec.  154,      3  Comp.  Stat.,  3870. 
as  amended  by  P.  L.  1904,  p.  304. 


Real  Property.  429 

^ourt  shall  thereupon  order  the  executor  or  executors,  admin- 
istrator or  administrators,  or  the  survivor  or  survivors  of  them, 
or  administrator  or  administrators  pendente  lite,  to  make  a 
good  and  sufficient  deed  of  conveyance  to  the  purchaser  or  his 
legal  representatives  or  assigns,  and  any  deed  made  and  ex- 
ecuted by  virtue  of  such  order  of  the  court  shall  convey  the 
lands  directed  to  be  conveyed  as  fully  as  if  the  testator  or  in- 
testate had  executed  the  same  in  his  or  her  lifetime.-^ 

Jurisdiction  of  Chancery. 

An  executor  or  administrator  is  entitled  to  enforce  in  equity 
specific  performance  of  a  contract  made  with  his  decedent  for 
the  sale  of  a  portion  of  decedent's  real  estate ;--  and  the  right 
of  an  executor  to  enforce  such  a  contract  does  not  depend  upon 
the  existence  of  a  power  of  sale.-" 

Parties. 

Specific  devisees  should  be  made  parties  to  such  a  suit.-^ 

Fulfillment  of  Declaration  of  Trust  Made  by  Decedent. 

When  any  testator  or  intestate  shall  in  his  or  her  life- 
time have  received  a  conveyance  of  land  in  trust  for  another 
and  shall  have  in  his  or  her  lifetime,  executed  a  declaration  of 
trust  for  said  land,  setting  forth  in  efTect  that  he  or  she  has  no 
beneficial  interest  in  said  land,  and  that  the  .same  is  held  for 
the  use  of  or  subject  to  the  order  of  another  in  said  declara- 
tion of  trust  named,  and  shall  die,  without  having  made  con- 
veyance of  such  land  to  the  person  or  persons  entitled  to  the 
same,  the  orphans'  court  of  the  county  where  such  land  is  situ- 
ate shall  have  power,  upon  the  application  of  the  executor  or 
administrator  of  such  testator  or  intestate,  upon  due  proof 
of  such  facts  being  made  to  the  satisfaction  of  said  court, 
to  make  an  order  authorizing  such  executor  or  administrator 

=1  Orphans'  Court  Act,  sec.  155.  -^Coles  v.  Fecney,  52  N.  J.  Eq., 

As  amended  by  P.  L.,  1915,  p.  41.  493. 

22Miller  v.  Miller,  25  N.  J.  Eq.,  -*Co\ts  v.  Feeney,  52  N.  J.  Eq., 

354.    Reversed,  sub  nom.,  Reddish  493. 
V.  Miller,  27  N.  J.  Eq.,  514. 


430  Probate  Law  and  Practice. 

to  make  conveyance  of  said  lands  pursuant  to  the  stipulations 
contained  in  such  declaration  of  trust.""' 

Agreements  of  Testator  for  Purchase  or  Sale  of  Lands. 

It  shall  be  lawful  for  any  executor  or  executors  of  any  last 
will  and  testament  to  whom  letters  testamentary  have  here- 
tofore been  granted,  to  carry  into  effect  the  terms  and  condi- 
tions of  any  agreement  for  the  purchase  or  sale  of  any  lands, 
tenements,  hereditaments  and  real  estate  made  and  entered  into 
by  the  testator  or  testatrix ;  and  any  subsequent  agreement 
made  and  entered  into  by  the  executor  or  executors  in  rela- 
tion thereto  shall  be  as  binding  and  effectual  on  all  parties  as 
if  made  by  the  testator  or  testatrix ;  and  it  shall  be  lawful  for 
the  said  executor  or  executors  to  take  title  to  the  lands,  tene- 
ments, hereditaments  and  real  estate  in  said  agreement  named, 
at  such  times  and  upon  such  terms  and  conditions  as  he  or 
they  shall  deem  for  the  best  interest  of  the  estate,  although  by 
the  provisions  of  the  said  last  will  and  testament  there  is  given 
no  power  to  the  executor  or  executors  to  receive  and  take  title 
to  lands,  tenements,  hereditaments  and  real  estate.^*' 

Powers  of  Administrator  with  the  Will  Annexed. 

Any  administrator  ciitn  test  anient  o  annexo  shall  have  the 
same  power  as  is  given  to  any  executor  under  the  provisions  of 
said  act"'  to  which  this  is  a  supplement.-® 

SALE  UNDER  POWER  CONFERRED  BY  WILL. 
In  General. 

A  testator  may  by  his  will  confer  upon  his  executor  power  to 
sell  his  lands,  which  power  may  be  general  or  limited  and  may 
be  conferred  by  express  words  or  by  implication ;  but  an  ex- 
ecutor has  no  power  to  sell  the  lands  of  his  testator,  unless  di- 
rected to  do  so  by  the  will,  either  expressly  or  by  implication,'^ 

=5P.    L.    1906,    p.   37.     3    Comp.  28p    L     1891,    p.   68.     2    Comp. 

Stat.,  p.  3871.  sec.  i5Sa.  Stat.,  2267,  sec.  27. 

26P.  L.   1887,  p.   167.     2   Comp.  -^Lippincott  v.  Lippincott,  19  N. 

Stat.,  2267,  sec.  26.  J.  Eq.,  121.    House  v.  Ewe?n,  37  N. 

"P.  L.   1887,  p.   167.     2  Comp.  J.   Eq.,  368.     Potter  v.   Adriance. 

Stat..   2267,   sec.  26,   supra.  44  N.  J.  Eq.,  14. 


Real  Property.  431 

and  where  no  power  of  sale  of  real  estate  is  vested  in  the  ex- 
ecutor by  the  will,  he  can  only  acquire  that  power  from  the 
orphans'  court  in  a  case  where  the  statute  authorizes  the  court 
to  confer  the  power.""  The  right  of  the  executors  to.  execute 
a  power  of  sale,  and  thereby  to  convey  the  fee  whereof  the 
testator  died  seized,  is  superior  to  the  right  of  partition  held 
by  the  purchaser  of  an  undivided  interest  from  a  residuary 
devisee. ^^ 

Implied  Power  of  Sale. 

\\'hen  a  testator  in  the  disposition  of  his  estate  imposes  on 
his  executor  trusts  to  be  executed,  or  duties  to  be  performed, 
which  require  for  their  execution  or  performance  an  estate 
in  the  land,  or  a  power  of  sale,  or  when  the  testator  has  blended 
together  real  and  personal  estate,  and  the  united  proceeds  are 
directed  to  be  distributed  by  the  executors,  the  latter  will  take 
by  implication  such  an  estate  or  power  as  will  enable  them  to 
execute  the  trusts,  or  perform  the  duties  devolving  upon 
them  f-  and  where  the  duty  imposed  upon  an  executor  by 
the  will  requires  him  to  make  distribution  of  the  residue  of 
testator's  estate  in  such  manner  that  he  will  be  unable  to  con- 
form to  its  provisions  without  selling  the  realty,  a  power  of 
sale  will  be  implied. ^^  So  where  testator  devised  all  his  prop- 
erty of  whatever  kind  to  executors  in  trust,  "to  hold  and  in- 
vest," as  might  seem  best,  and  certain  amounts  "to  be  paid 
from  time  to  time"  to  beneficiaries,  it  was  held  that  the  power 
to  sell  the  real  estate  was  given  to  the  executors  by  implica- 
tion, since  the  use  of  terms  applicable  particularly  and  ex- 

30Morris  V.  Dorsey,  77  N.  J.  Eq.,  56  N.  J.  Eq.,    no.     Louderbougli 

460.     Affirmed,  80  N.  J.  Eq.,  555-  v.  Weart,  25  N.  J.  Eq.,  399.   Cruik- 

''Hatt    V.    Rich,    59    N.   J.    Eq.,  shank  v.  Parker,  51  N.  J.  Eq.,  21. 

492.  Reversed,  52  N.  J.  Eq.,  310.    Pot- 

32Lindley  v.   O'Reilly,   50  N.  J.  ter  v.  Adriance,  44  N.  J.  Eq.,  14. 

L.,   636.     Cook   V.    Cook.   47   Atl.  Lavaggi  v.  Borella,  73  N.  J.  Eq.. 

Rep.,    732.     Haggerty    v.    Lanter-  419. 

man,   30   N.   J.    Eq.,   37.     Lippin-  ^-'Cooke    v.    Woman's    Medical 

cott   V.   Lippincott,    19  N.  J.   Eq.,  College,  82  N.  J.  Eq.,  179.     Hag- 

121.     Casselman   v.  McCooley,  73  gerty  v.  Lanterman,  30  N.  J.  Eq.. 

N.  J.  Eq.,  253.     Seeger  v.  Seeger.  37. 
21  N.  J.  Eq.,  90.    Parker  v.  Seelcy, 
29 


432  Probate  Law  and  Practice. 

clusively  to  personalty  indicated  that  all  the  property  was  to 
be  converted  into  personalty  f*  and  so  a  testamentary  gift  to 
an  executor  of  all  the  decedent's  interest  in  a  partnership,  of 
which  he  was  then  a  member,  in  trust  to  invest  as  fast  as 
realized,  together  with  full  power  to  settle  with  his  partners, 
confers  on  the  executor  the  fee  of  decedent's  partnership  real 
estate,  with  power  of  sale.^^ 

Where  testatrix  gave  her  residuary  estate  to  trustees  in  trust 
to  divide  into  five  equal  shares,  to  pay  over  one  of  the  shares 
to  each  of  her  brothers,  and  to  hold  and  manage  one  of  the 
remaining  shares  for  each  of  her  three  sisters  and  to  pay  over 
to  them  the  rents  and  profits  thereof,  with  power,  under  cer- 
tain contingencies,  to  convey  the  real  estate,  if  any,  to  dif- 
ferent persons,  it  was  held  that  the  trustees  had  power  to  con- 
vert the  real  estate  into  money  for  the  purpose  of  performing 
the  trusts  imposed  upon  them.''*'  So  where  a  testatrix,  after  ap- 
pointing an  executor,  directed  the  payment  of  debts,  and  then 
blended  her  real  and  personal  estate,  giving  to  four  children 
each  one-sixth,  to  another  child  one-sixth,  less  $800,  charged 
as  an  advancement,  and  the  remainder  to  the  executor  in  trust 
for  another  child,  it  was  held  that  the  executor  had  authority 
to  convey  real  estate,  since  to  make  the  division,  and  establish 
the  trust,  a  sale  of  the  real  estate  was  necessary  ;^^  and  a 
power  of  sale  will  be  implied  from  a  provision  in  a  will  di- 
recting the  executor  to  pay  debts  or  legacies  with  the  proceeds 
of  land.^^ 

On  the  other  hand,  where  no  express  power  to  sell  lands  is 
given  in  a  will  to  the  executor,  such  power  will  not  arise  by 
implication  unless  the  implication  is  clear  from  the  terms  of 
the  entire  will ;  and  it  must  be  found  that  some  duty  has  been 
imposed  by  the  testator  upon  the  executor,  which  necessarily 
carries  with  it  a  power  of  sale  in  order  to  enable  him  to  per- 
form the  duty.     The  right  to  exercise  a  power  of  sale  by  im- 

3*Cook  V.   Cook,  47  Atl.   Rep.,  stwoq^   y    Lembcke,   72   N.   J. 

732.  Eq.,  651. 

35Naar  v.   Naar,  41    N.  J.   Eq.,  s^Meakings      v.      Cromwell,      2 

^-  Sandf.,   512.     Affirmed,   5    N.    Y., 

3«Varick  v.  Smith,  69  N.  J.  Eq.,  136.      Chandler   v.    Thompson,   62 

505-  N.  J.   Eq.,  723- 


Real  Property.  433 

plication  has  been  rigidly  restricted  to  those  instances  in  which 
it  is  necessary  in  order  to  carry  out  the  purposes  of  the  tes- 
tator's will. 

A  power  of  sale  will  not  be  implied,  merely  because  it  will 
be  beneficial  to  the  estate."''  So  where  a  testator  in  his  will 
provided  as  follows:  "I  give,  devise  and  bequeath  all  of  my 
property,  both  real  and  personal,  to  my  six  children,  as  fol- 
lows, that  is  to  say:  After  the  settlement  and  payment  of  my 
just  debts,  then  the  residue  of  my  estate,  both  real  and  per- 
sonal, to  be  gathered  into  one  general  fund  and  divided  into  six 
equal  parts,  as  follows  :  To  my  six  children  *  *  *  each  of  them 
to  receive  a  one-sixth  share,  which  I  give  to  them  and  to  their 
heirs  forever,"  it  was  held  that  an  implied  power  to  sell  tes- 
tator's real  estate  was  not  given  to  the  executors,  there  being 
in  this  case  no  gift  to  the  executors  in  trust,  under  direction  to 
them  to  invest  and  ultimately  pay  over,  and  no  indication  that 
the  children  were  to  take  the  proceeds  of  the  sale  of  the  real 
estate,  rather  than  the  real  estate  itself,  but  the  testator  having 
on  the  contrary,  used  language  technically  appropriate  to  con- 
vey his  real  estate  to  his  children  in  specie,  and  there  appear- 
ing no  indication  of  an  intention  on  testator's  part  to  put  it  in 
the  power  of  his  executors  to  change  the  nature  of  his  property 
before  it  reaches  its  destination,  while  the  fact  that  the  testator 
directed  his  estate,  after  payment  of  debts,  to  be  gathered  into 
one  general  fund,  is  of  no  consequence,  because  into  that  so 
called  fund  he  himself  puts  the  realty,  as  well  as  the  personalty, 
and  not  the  proceeds  of  the  sale  of  the  realty.**' 

Where  a  will  contains  no  express  power  to  sell  lands  for 
the  purpose  of  making  a  division,  and  does  not  contain  any  di- 
rection to  the  executors  named  therein  to  make  a  division,  no 
duty  in  that  respect  having  been  cast  upon  them,  there  is  no 
implication  that  any  such  power  has  been  conferred  upon 
them;*^  and  so  a  power  given  to  executors  "to  sell  and  dis- 

39Chandler  v.  Thompson,  62  N.  ■^iCanipbell  v.  Cole.  71  N.  J.  Eq., 

J.  Eq.,  723-  327. 

♦•'Smalley  v.   Smalley,  54  N.  J. 
Eq.,   591. 


434  Probate  Law  and  Practice. 

pose  of  any  of  the  securities"  the  testator  might  hold  at  his 
death  does  not  authorize  them  to  sell  lands.*- 

The  appointment  of  one  as  executor  of  a  will  that  directs 
lands  to  be  sold  does  not  of  itself  confer  on  him  the  power 
to  sell ;  but  if  the  executor  is  directed  by  the  will,  or  bound 
by  law,  to  see  to  the  application  of  the  proceeds  of  the  sale,  or 
if,  in  the  disposition  to  be  made  of  them,  the  proceeds  are 
mixed  up  and  blended  with  the  personalty,  which  it  is  the  duty 
of  the  executor  to  dispose  of  and  pay  over,  then  a  power  of 
sale  is  conferred  upon  the  executor  by  implication.''^  As  a 
general  rule,  however,  where  express  directions  are  given  to 
sell,  and  no  person  is  named  to  make  the  sale,  the  power  of 
sale  is  held  to  be  in  the  executors  by  implication,  in  cases 
where  it  is  their  duty  to  distribute  and  pay  out  of  the  pro- 
ceeds.** 

General  or  Limited  Power. 

Where  the  executors  are  given  a  general  power  of  sale, 
they  may  sell,  in  their  discretion,  and  as  prudence  may  dic- 
tate, during  the  continuance  of  their  trust,  and  are  not  limited 
to  a  sale  for  purposes  of  administration.*'"  Where,  however, 
the  power  is  limited,  it  can  only  be  exercised  under  the  cir- 
cumstances, for  the  purposes,  and  in  the  manner  provided  for. 
or  contemplated  in  the  testator's  will.*"  Thus,  where  a  power 
of  sale  was  not  given  to  the  executors  as  such,  but  was  a 
special  power  given  to  the  wife,  one  of  the  executors,  and  was 
expressly  directed  to  be  exercised  by  her  in  conjunction  with 
the  other  executor,  with  no  provisions  for  its  exercise  by  the 
wife  alone,  the  power  is  terminated  upon  the  death  of  the  co- 
executor,  for  the  reason  that  it  can  no  longer  be  exercised 
under  the  conditions  specified.*'  So  where  a  power  of  sale 
was  given  to  executors  to  be  exercised  with  the  consent  of  the 

*2Pratt  V.  Morrell,  66  N.  J.  Eq.,  "^ig  CYC,  321.     Hatt  v.  Rich, 

194-  59  N.  J.  Eq.,  492. 

^^Lippincott  V.  Lippincott,  19  N.  *Hn  re  Carter's  Estate,  88  Atl. 

J.  Eq.,  121.  Rep.,   1084. 

"Seeger  v.  Seeger,  21  N.  T.  Ea..  "TDolan  v.  Brown.  81  N.  J.  Eq.. 

90.    Louderbough  v.  Weart,  25  N.  262.    Piersol  v.  Roop,  56  N.  J.  Eq., 

J.  Eq.,  39Q.  y^g,      Dolan    v.    Brown,    86    Atl 

Rep.,  935- 


Real  Property.  435 

Avidow,  such  consent  to  be  signified  by  her  joining  in  and  be- 
coming a  party  to  the  deed,  the  assent  of  the  widow  and  her 
joining  in  the  deed  were  held  to  be  conditions  necessary  to  the 
exercise  of  the  power,  and  that  on  her  death,  without  having 
consented  in  the  mode  prescribed,  the  power  was  gone  ;*"*    and 
where  a   will  gave  testator's   wife   the   income    for  life,   and 
showed  an  intention  that  on  her  death  the  estate  should  pass 
to  his  children,  a  discretionary  power  given  the  executor  to  sell 
and  re-invest  in  real  estate  sufficiently  productive  to  pay  in- 
come, is  limited  to  the  life  of  the  widow;"    but  an  express 
direction  in  a  will  that,  in  case  of  a  certain  contingency  aris- 
ing, the  beneficiaries  who  receive  the  income   for  their  sup- 
port shall  have  a  right  to  have  the  real  estate  sold,  does  not 
nupliedly  limit  the  power  of  sale  conferred  upon  the  trustees, 
and  which  they  must  exercise  at  all  times  to  keep  the  estate, 
consisting  largely  of  land,  so  invested  as  to  yield  an  income.^" 
Where  testator  devised  an  estate   for  life  in  certain  prop- 
erty to  his  widow,  with  power  to  sell  and  appropriate  the  pro- 
ceeds to  her  own  use,  and  devised  the  residue  of  his  property, 
including  that  devised  to  his  wife,  to  his  executor,  in  trust 
to  sell  on  the  death  of  the  widow,  if  she  should  not  have  sold 
it  in  her  lifetime,  the  proceeds  to  be  divided  in  the  manner 
named,  it  was  held  that  the  will  created  two  succeeding  powers 
of  sale — one  to  be  exercised  by  the  widow  for  her  own  benefit, 
and  the  other  by  the  executor  after  the  widow's  death  for  the 
benefit  of  others— so  that  the  executor  could  not  exercise  his 
power  of  sale  during  the  life  of  the  widow  for  her  benefit, 
even  by  her  consent.'''      So  where  a   will  gave  to  testatrix's 
husband  a  life  estate  in  certain  land,  and  directed  the  land  to 
be  sold  at  the  hu.sband's  death,  and  the  proceeds  divided  among 
nine  persons,  and  further  gave  the  executor  "full  power  to  do 
all  that  is  needed  to  the  full  execution  thereof,  to  sell  and  con- 
vey by  deed,  or  otherwise,  real  and  personal  property,  to  make 
all  payments,  divisions  and  di.spositions  herein  provided,"   it 

^sPiersol  v.  Roop,  56  N.  J.  Eq.,  sovrooman   v.   Virgil,   81    N.   J. 

739-  Eq.,  301. 

*8Tucker  v.   Baldwin,   72   N.  J.  ■"•'Pratt  v.  Morrell,  66  N.  J.  Eq., 

Eq.,   224.     In    re   Carter's   Estate,  194. 
88  Atl.   Rep.,    1084. 


436  Probatk  Law  and  Practice. 

was  held  that  the  power  of  sale  was  given  merely  for  the 
purpose  of  distribution  after  the  husband's  death  and  did  not 
empower  the  executor  to  sell  before  that  time.'^-  So  a  will 
vesting  the  legal  title  in  the  executors  and  trustees  as  trustees 
under  the  will,  directing  the  trustees,  in  their  discretion  as  to 
time,  to  divide  after  the  death  of  testator's  wife  the  accumu- 
lated surplus  of  the  estate  and  the  residue,  etc.,  if  it  gives  a 
power  of  sale,  does  not  authorize  an  execution  of  the  power 
during  the  life  of  the  wife;'"'"  but  where  legacies  were  by  one 
section  of  a  will  charged  on  lands,  and  full  power  was  by  the 
will  given  to  the  executors  to  sell  testator's  lands  in  order  to 
pay  debts  and  legacies,  it  was  held  that  such  power  was  not 
qualified  by  a  power  given  to  the  executors  in  another  section 
of  the  will  to  sell  after  the  death  or  re-marriage  of  testator's 
widow.^* 

Surviving  Executor  May  Execute  Power. 

Where  any  lands,  tenements  or  hereditaments  have  been  or 
shall  be  given  or  devised  by  any  last  will  or  testament,  ex- 
ecuted in  due  form  of  law,  to  the  executors  therein  named,  or 
any  of  them,  to  be  sold,  or  have  been  or  shall  be  thereby  or- 
dered or  directed  to  be  sold  by  the  executors  therein  named, 
or  any  of  them,  and  one  or  more  of  said  executors  shall  die 
or  have  died  in  the  lifetime  of  the  testator,  or,  if  living  at 
the  death  of  the  testator,  shall  refuse  or  neglect  to  prove  the 
said  last  will  of  the  testator,  or  shall  die,  or,  if  having  proved 
said  last  will  and  taken  upon  himself,  herself  or  themselves 
the  execution  thereof,  shall  die,  or  resign  the  executorship  or 
remove  out  of  this  state  and  refuse  to  act,  or  have  died,  or  re- 
signed the  executorship  or  removed  out  of  this  state  and  re- 
fused to  act,  or  shall  be  or  have  been  discharged  or  removed 
from  office  by  any  court  of  competent  jurisdiction,  then  and  in 
any  of  such  cases  the  trusts  in  said  will  shall  vest  in  the  other 
executor  or  executors  in  said  will  named  who  shall  prove,  or 
heretofore  hath  or  have  proved  said  last  will,  and  in  the  sur- 

s2Ryan  V.  Dodds,  65  N.  J.  Eq.,  •'^*Brown  v.  Brown,  31  N.  J.  Eq., 

436.  422. 

•''SHattie  v.  Gehin,  76  Atl.  Rep., 
4- 


Real  Property.  437 

vivor  or  survivors  of  them,  unless  it  shall  be  or  is  otherwise  ex- 
pressed in  said  will ;  and  it  shall  be  lawful  for  such  acting  or 
surviving  executor  or  executors  to  sell  and  convey  the  said 
lands,  tenements  and  hereditaments  of  the  testator,  in  the  same 
manner,  to  all  intents  and  purposes,  as  if  all  had  been  living 
or  acted  and  joined  in  such  sale.^^ 

The  words,  "ordered  or  directed  to  be  sold,"  in  the  above 
act  have  been  construed  to  refer  to  every  power  of  sale,  unless 
the  will  plainly  imposes  a  limitation.  The  word,  "ordered," 
is  not  to  be  restrained  to  the  signification  of  peremptory  com- 
mand, but  comprehends  the  wider  meaning  of  the  term  "au- 
thorized." To  contract  the  scope  of  this  provision,  so  as  to 
permit  it  to  embrace  only  that  class  of  cases  in  which  an  ab- 
solute mandate  to  executors  to  make  sale  has  been  given, 
would  very  materially  impair  its  usefulness,  for  by  so  doing, 
a  large  part  of  these  testamentary  powers  of  sale  would  be 
left  without  any  statutory  regulation.  The  act  is  remedial, 
and  is  to  be  interpreted  not  by  its  letter,  but  by  its  spirit.^" 

On  the  disqualification  of  one  of  several  executors,  on 
whom,  in  their  official  capacity,  and  not  as  individuals  is  con- 
ferred a  joint  power  of  sale,  those  remaining  may  execute  the 
power.^^  So  where  a  will  gives  to  the  executors  a  discre- 
tionary power  to  sell  land,  and  one  is  removed  from  his  office, 
the  power  to  sell  survives,  and  can  be  executed  by  the  re- 
maining executor  ;^^  and  so  when  a  power  to  sell  lands  is 
vested  in  two  executofs,  or  the  survivor  of  them,  the  clause 
describing  them  as  executors  and  not  by  their  names,  if  one 
of  them  be  removed  from  office,  the  power  becomes  lodged  in 
the  remaining  executor.^^ 

Exchange  of  Lands. 

Whenever  it  shall  hereafter  appear  to  the  Orphans'  Court 
of  any  county  in  this  state  where  the  lands  are  located,  after 

552  Comp.  Stat.,  p.  2261,  sec.  10.  58\Yeifnar  v.  Fath,  43  N.  J.  L.. 

56Weimar  v.  Fath,  43  N.  J.  L.,  i.     Lippincott  v.  Wikoff,  54  N.  J. 

I.    See  also,  Rutherford  Land  Co.  Eq.,  107.     Hatt  v.  Rich,  59  N.  J. 

V.  Sanntrock.  60  N.  J.  Eq.,  471.  Eq.,  492. 

"Lippincott  v.  Wikoff,  54  N.  J.  '"Denton  v.  Clark,  36  N.  J.  Eq., 

F.q..  107.  534.     Lippincott  v.  Wikoff,  54  N. 

J.  Eq.,   107. 


438  Probate  Law  and  Practice. 

due  consideration  of  the  facts  and  circumstances  of  the  case, 
that  it  will  be  to  the  advantage  of  the  estate  or  estates  re- 
ferred to  in  the  verified  petition  of  any  executor,  trustee  or 
administrator  with  the  will  annexed  having  power  to  sell  lands, 
with  or  without  the  approval  of  said  Orphans'  Court  that  the 
lands  in  such  petition  referred  to  and  described  to  be  disposed 
of  by  an  exchange  for  other  lands,  or  acquired  by  purchase 
or  in  exchange  for  other  lands,  by  such  executor,  trustee  or 
administrator  with  the  will  annexed,  according  to  the  terms 
and  conditions  set  forth  and  submitted  in  and  by  such  peti- 
tion, said  Orphans'  Court  shall  have  power,  in  its  discretion,  to 
make  an  order  approving  and  confirming  such  exchange  or 
purchase,  as  the  case  may  be,  as  made  by  such  executor,  trustee 
or  administrator  with  the  will  annexed,  and  directing  the  con- 
veyance of  said  lands  accordingly. ^'^ 

What  Property  May  be  Sold. 

The  question  as  to  what  property  an  executor  has  power  to 
sell  is  determined  by  the  extent  of  the  power  given  him  by 
the  terms  of  the  will;  and  a  power  of  sale  given  to  executors, 
authorizing  them  to  sell  and  convey  all  the  testator's  real  estate 
at  their  discretion,  is  sufficient  to  support  a  sale  by  the  ex- 
ecutors, not  only  of  all  the  territorial  extent  of  the  lands 
whereof  the  testator  died  seized,  but  also  of  all  his  title  and 
interest  therein,  and  their  sale  under  the  power  will  divest 
the  estate  of  the  residuary  legatees  and  of  aM  those  claiming 
under  them.®^ 

Manner  of  Selling. 

Executors,  in  selling  lands  under  a  general  power  in  a  will, 
may  divide  it  into  lots  and  lay  out  streets  through  it,  and  thus 
create  easements  of  a  right  of  way  in  the  several  purchasers,  if 
the  estate  will  be  benefited  by  such  a  disposition  of  the  prop- 
erty ;  and  deeds  made  by  them  for  lots,  with  a  description  by 
boundaries  on  such  streets,  will  create  in  the  purchasers  an 
easement  of  the  right  to  use  the  streets.''- 

60P.  t.  1912,  p.  466.  e^Earie   ^    n^w    Brunswick.   38 

«iHait  V.  Rich,  59  N.  J.  Eq..  N.  J.  L.,  47.  Hohokus  v.  Erie  R. 
492.  R.  Co.,  65  N.  J.  L.,  353- 


Real  Property.  439 

Time  for  Selling. 

In  the  absence  of  any  directions  in  the  will  limiting  the  time 
within  Avhich  the  power  of  sale  must  be  exercised  there  is  no 
limitation  of  time  within  which  the  power  must  be  exercised, 
except  where  the  rule  against  perpetuities  is  involved,  or  where 
the  power  is  controlled  by  an  inherent  quality  in  the  nature  of 
the  trust,  or  in  the  object  for  which  the  power  was  granted. "■' 
Such  a  power  does  not  lose  its  efficiency  because  the  debts  and 
legacies  are  paid,  nor  by  mere  lapse  of  time,  when  it  still  may 
])e  used  to  accomplish  purposes  which  the  testator  may  have 
had  in  view,  or  to  carry  into  effect  the  conversion  and  setting 
apart  of  a  share  to  be  held  in  trust  for  one  of  the  testator's 
children,  according  to  the  terms  of  his  will.*^*  Thus  in  Scudder 
V.  Stoitt,^^  Chancellor  Williamson  upheld  a  conveyance  made 
by  trustees  under  a  power  seventeen  years  after  the  power 
accrued.  In  Morse  v.  Hackensack  Savings  Bankf"^  Jus- 
tice Depue  upheld  a  conveyance  made  more  than  nine  years 
after  the  power  accrued  and  in  Hatt  v.  Rich,^~  Vice-Chancellor 
Grey  upheld  a  conveyance  after  the  lapse  of  twelve  years. 
Where,  however,  testator  empowered  his  executors  to  sell  his 
real  estate  for  the  payment  of  his  debts,  and  the  executors 
duly  settled  their  accounts  in  the  orphans'  court,  it  was  held 
that  after  the  expiration  of  forty  years  a  presumption  arose 
that  the  debts  had  been  paid,  and  that  the  power  had  ceased  to 
have  any  legal  existence. •'^ 

The  general  rule  is  that  a  testamentary  power  to  sell  must 
be  strictly  executed  as  to  time,  as  well  as  to  all  other  par- 
ticulars, when  express  directions  are  given  in  the  will ;""  and 
where  a  limitation  of  time  is  imposed  upon  a  power  of  sale, 
and  is  of  the  essence  thereof,  the  power  must  be  executed 
within  the  prescribed  period ;  but  where  the  limitation  of  time 
is  merely  directory,   the  power  may   be  executed  thereafter. 

^^Morse  v.  Hackensack  Savings  *"''47  N.  J.  Eq.,  279. 

Bank,  47  N.  J.  Eq.,  279.     Hatt  v.  c^^p  n_  j^  gq^  4^2. 

Rich,   59   N.  J.   Eq.,  492.  «8Moores   v.    Moores,   41    N.   J. 

8*Hatt   V.   Rich,   59   N.   J.   Eq.,  L.,  440. 

492.  09Hattie  v.  Gehin,  76  Atl.  Rep., 

«5io  N.  J.  Eq.,  377-  4- 


440  Probate  Law  and  Practice. 

Whether  it  be  compulsory  or  directory  is  to  be  learned 
from  the  language  of  the  whole  will.'"  Thus,  a  provision  in  a 
will  that  certain  of  the  real  estate  of  which  testator  died 
seized  should  be  sold  and  conveyed  by  his  executor  "within 
five  years  from  my  decease,"  and  the  proceeds  divided  be- 
tween two  beneficiaries,  was  held  to  be  merely  directory  in 
respect  to  the  limit  of  time  for  sale,  and  it  was  held  that  the 
executor  retained  power  of  sale  after  the  expiration  of  the 
limited  period.'^ 

A  trustee  who  sells  at  an  improper  time,  or  without  con- 
forming to  the  conditions  of  his  powers,  will  be  held  liable 
for  a  deficiency  of  the  proceeds  of  sale,  though  his  inten- 
tions were  good.  He  will  be  held  responsible  for  the  highest 
value  the  property  can  be  shown  to  have  had,  and  be  decreed  to 
account  for  the  differences- 
Liability  of  Executor,  &c. 

An  executor,  administrator,  guardian  or  trustee,  selling  lands 
in  good  faith  and  in  the  exercise  of  reasonable  judgment,  is 
liable  only  for  the  amount  of  the  consideration  received.  So 
executors  will  not  be  held  liable  for  refusing  in  good  faith  an 
offer  for  land,  which,  as  it  afterwards  turns  out,  was  an  ad- 
vantageous one  -^^  and  executors  will  not  be  charged  with 
the  difference  between  the  price  offered  them  for  lands  and 
a  lower  price  for  which  they  finally  sold  it,  they  having  acted 
in  good  faith,  and  interested  heirs  objecting  to  a  sale  at  a 
higher  price  when  offered.'*  So  where,  after  testator's  death, 
one  of  his  executors  occupied  his  homestead,  agreeing  with 
one  of  his  co-executors  to  pay  a  certain  rent  therefor  monthly, 
and  the  co-executor  afterwards  secured  another  tenant,  who 
offered  an  increased  rent  if  the  executors  would  repair  the 
premises,  which  they  refused  to  do  because  of  the  large  ex- 
pense, and  the  executor  continued  in  possession,  without  ob- 

'"Molten    V.    Sutphin,  66   N.   J.  Eq..  305.     Affirmed,  25  N.  J.  Eq., 

Eq.,  20.     Marsh  v.  Love,  42  N.  J.  523. 

Eq.,  112.  '^3Dey  v.  Codman,  39  N.  J.  Eq., 

"^Molten   V.   Sutphin.   66  N.  J.  258. 

Eq.,  20.  74Roife  V    VanSickle,  40  N.  J. 

^^Melick  V.  Voorhees,  24  N.  J.  Eq.,  158. 


Reai,  Property.  441 

jection  by  the  exceptant,  it  was  held  that  if  he  paid  the  full 
rental  value  of  the  property  in  its  unrepaired  condition  he 
could  not  be  charged  with  the  amount  ottered  by  the  other 
tenant.'^ 

Where,  on  the  other  hand  it  satisfactorily  appears  that  but 
for  the  improper  conduct  of  the  executor  in  selling  real  estate 
the  sale  would  have  realized  a  sum  in  excess  of  that  for  which 
it  was  actually  sold,  the  cestuis  que  trustent  are  clearly  en- 
titled to  that  sum,  no  matter  what  diversity  of  opinion  may 
exist  as  to  the  intrinsic  value  of  the  property,  and  the  ex- 
ecutor will  be  compelled  to  make  up  the  deficiency.'*^ 

SALE  OF  LANDS  BY  ADMINISTRATOR  WITH  THE  WILL 
ANNEXED  UNDER  POWER  OF  SALE  CONTAINED  IN 
WILL. 

Povirer  of  Administrator  with  the  Will  Annexed. 

Any  deed  of  conveyance  heretofore  made  and  delivered,  or 
which  may  hereafter  be  made  and  delivered,  by  any  adminis- 
trator or  administrators  with  the  will  annexed,  or  the  sur- 
vivors or  survivor  of  them,  for  any  lands,  tenements,  heredita- 
ments or  real  estate  sold  pursuant  to  any  power  or  direction 
in  the  said  will  annexed,  given  to  or  vested  in  the  executor 
or  executors  named  therein,  shall  be  as  good,  valid  and  ef- 
fectual as  if  the  same  had  been  or  were  made  and  delivered 
by  the  executor  or  executors  named  in  said  will ;  and  such  ad- 
ministrator or  administrators  with  the  will  annexed,  and  the 
survivors  or  survivor  of  them,  shall  have  the  same  powers  and 
authority  with  respect  to  the  sale  of  the  lands  of  the  tes- 
tator as  were  given  to  or  vested  in  the  executor  or  executors 
named  in  said  will,  whether  such  powers  and  authority  con- 
stitute or  shall  constitute  a  naked  power  to  sell  lands  or  con- 
stitute or  shall  constitute  a  special  continuing  trust,  and  whether 
the  discharge  of  the  duties  of  such  trust  involves  or  shall  in- 
volve the  exercise  by  said  executors  or  executor  of  any  dis- 
cretion either  in  point  of  time  or  method,  or  not,  unless  where 

T^Tichenor   v.   Tichenor,   43   N.  ^"Huston    v.    Cassicly.    14    N.   J. 

J.  Eq.,  163.    Affirmed,  45  N.  J.  Eq.,      Eq.,  320.     Fisher  v.   Skillman,   18 
303.  N.  J.  Eq.,  229-233. 


^^  Probate  Law  and  Practice. 

such  will  does  now  or  shall  hereafter  provide  by  express  desig- 
nation that,  in  any  contingency,  some  persons  or  person  other 
than  the  persons  or  person  named  as  executors  or  executor 
therein,  shall  exercise  such  powers  and  authority;  and  in 
case  of  the  death  or  incapacity  either  before  or  after  the 
passage  of  this  act  of  the  executor  or  executors  named  in 
such  will  before  the  complete  execution  of  any  special  trust 
therein  declared  and  vested  in  him  or  them,  or  of  such  ad- 
ministrator or  administrators  with  the  will  annexed,  and  the 
appointment  of  an  administrator  or  administrators  de  bonis  non 
with  the  will  annexed,  the  same  power  and  authority,  with  re- 
spect to  the  sale  of  the  lands  of  the  testator,  shall  be  considered 
as  vested  in  him  or  them,  and  the  survivors  or  survivor  of 
them,  as  were  vested  in  the  executor  or  executors  in  said  will 
named ;  and  such  administrator  or  administrators  de  bonis  non 
with  the  will  annexed,  and  the  survivors  or  survivor  of  them, 
shall  have  and  may  exercise  all  the  power,  with  respect  to  the 
sale  of  the  lands  of  the  testator,  that  the  original  executor  or 
executors  have  had  or  shall  have  either  as  executors  or  trus- 
tees, under  said  will,  except  where  such  will  shall  expressly 
confide  the  exercise  of  such  power  of  sale  to  some  person 
or  persons  named  therein  other  than  the  executors  or  ex- 
ecutor of  said  will."" 

This  section  enlarges  the  powers  of  administrators  with  the 
will  annexed  as  they  were  granted  by  the  prior  statute,'*  under 
which  it  was  held  that  it  was  only  when  a  power  of  sale  was 
given  to  executors  simply  raticne  officii  that  an  administrator 
with  the  will  annexed  might  exercise  it,"  and  that  where  a 
personal  trust  and  confidence  was  placed  upon  the  executor,  the 
power  did  not  devolve  upon  the  administrator  with  the  will 
annexed.^" 

It  has  been  uniformly  held  that  the  present  statute  confers 
power  on  the  administrator  with  the  will  annexed  to  exercise 
powers  of  sale  conferred  by  the  will  upon  executors  qua  ex- 

■^^2  Comp.  Stat.,  2262,  sec.  13.  N.  J.  Eq.,  53.     Joralemon  v.  Van 

'^^Rev.,  p.  398,  sec.  11.  Riper,  44  N.  J.  Eq..  299.     Griggs 

79-vVeimar  v.  Fath,  43  N.  J.  L.,  v.  Veghte.  47  N.  J.  Eq.,  179. 

I.    Giberson  v.  Giberson,  43  N.  J.  8*^Naundorf  v.  Schumann,  41  N. 

Eq.,  it6.    Drummond  v.  Jones,  44  J.  Eq.,  14-15,  and  cases  cited. 


Re;al  Property.  443 

editors,  but  not  where  the  power  devolved  upon  the  executors 
as  trustees,  with  trust  duties  to  perform.  It  is  clear  that  the 
powers  conferred  by  the  act  respec!  a  sale  of  lands.  The  act 
does  not  expressly  confer  upon  an  administrator  with  the  will 
annexed  any  power  to  act  as  trustee  under  the  will.  The  ex- 
press power  granted  is  limited  to  the  sale  of  lands,  and  the 
legislative  purpose  is  itself  limited  by  the  title  of  the  act  which 
declares  that  it  regulates  the  sale  of  lands  by  an  administrator 
with  the  will  annexed ;  nor  can  there  be  anv  such  power  im- 
plied, for  such  an  implication  would  make  the  act  inconsistent 
with  its  title.'^ 

So  where  a  trust  vested  the  legal  title  to  land  in  trust  in 
the  person  named  as  executor,  and  required  the  estate  to  be 
divided  at  his  marriage,  and  the  shares  invested  and  the  in- 
terest paid  to  certain  persons  during  their  lives,  the  sale  of 
lands  permitted  by  implication  was  necessarily  to  be  made  by 
the  person  named  as  executor  in  his  capacity  as  trustee,  and  not 
as  executor,  though  he  was  defined  in  the  will  as  an  executor ; 
and  hence,  one  appointed  substituted  administrator,  cannot 
exercise  the  power  of  sale,  but  the  appointment  of  a  trustee  is 
necessary.  So,  necessarily,  when  a  sale  is  to  be  made  by  the 
person  named  as  executor,  in  his  capacity  as  a  trustee,  holding 
the  real  estate  as  devisee  in  trust  and  not  in  his  capacity  as 
an  executor,  the  trust  duties  imposed  are  essentially  those  of 
a  trustee,  and  should  be  administered  as  such,  and  it  is  wholly 
immaterial  that  the  devisee  in  trust  is  defined  in  the  will  as  an 
executor.  The  administrator  with  the  will  annexed,  as  sub- 
stituted executor,  succeeds  to  the  powers  conferred  upon  the 
executor  as  such,  and  not,  as  has  been  said  above,  to  the 
powers  devolving  on  the  executor  as  trustee,  with  trust  duties 

**' Griggs  V.  \'eghte,  47  N.  J.  Eq.,  Eq.,  281.  Naundorff  v.  Schumann. 
179-  Brush  v.  Young,  28  N.  J.  L.,  41  N.  J.  Eq.,  14.  Joralemon  v. 
237.  Zabriskie's  Executors  v.  Wet-  Van  Riper.  44  N.  J.  Eq.,  299.  Gib- 
more,  26  N.  J.  Eq.,  18.  Weiland  erson  v.  Giberson,  43  N.  J.  Eq.. 
V.  Townsend,  33  X.  J.  Eq.,  393-  116.  Varick  v.  Smith,  67  N.  J. 
Lanning  v.  Sisters.  &c.,  35  N.  J.  Eq.,  i.  S.  C,  69  N.  J.  Eq.,,505. 
Eq.,  393.  Stoutenlnirgh  v.  Mfiore.  Hegeman's  Executors  v.  Roome, 
37  N.  J.  Eq.,  63.     S.  C,  38  >.'.  J.  70  N.  J.  Eq.,  562. 


444  Probate  Law  and  Practice. 

to  perform.*^  So  the  statute  does  not  give  to  a  substituted 
administrator  a  grant  of  power  to  sell  lands  which  are  the 
subject  of  an  express  devise  to  the  executor  as  trustee.^^ 

An  administrator  with  the  will  annexed  has  power  to  make 
sale  of  lands  of  the  testator,  when  by  his  will  testator  has  con- 
ferred upon  his  executors,  by  implication,  a  power  of  sale.** 

Power  of  Ancillary  Administrator  c.  t.  a. 

The  statute^^  authorizes  the  probate  of  a  foreign  will  in 
this  state  in  the  county  wherein  the  testator  died  seized  of 
real  estate,  upon  the  production  of  an  exemplified  copy  of  the 
record  of  foreign  probate,  and  authorizes  the  surrogate  to 
grant  letters  testamentary,  or  of  adminstration  with  said  will 
annexed.  Such  administrator  with  the  will  annexed  has  not, 
however,  power  to  exercise  a  power  of  sale  conferred  by  the 
will  upon  the  executor,  while  the  executors  are  acting  as  such 
in  the  jurisdiction  of  testator's  domicile.  At  common  law,  a 
testamentary  power  of  sale  to  an  executor  was  treated  as  a 
personal  trust;  with  the  death,  resignation,  or  removal  of 
the  executor,  the  power  died,  and  an  administrator  c.  t.  a. 
could  not,  in  consequence,  exercise  it.  This,  as  has  been  seen, 
has  been  changed  by  our  statute.  The  power  now  passes  to 
an  administrator  with  the  will  annexed,  except  in  cases  spe- 
cifically referred  to  in  the  statute ;  but  this  statute  clearly 
has  reference  to  the  survival  of  the  power  of  sale  where  the 
executorship  has  become  vacant,  and  an  administrator  with 
the  will  annexed  has  been  appointed  as  the  successor  in  of- 
fice of  the  person,  or  persons,  named  in  the  will,  and  does  not 
relate  to  an  ancillary  administrator  c.  t.  a.  in  this  state,  where 
the  executor  named  in  the  will  of  a  non-resident  is  acting  as 
such  in  the  state  of  the  testator's  domicile.  It  follows,  there- 
fore, that  a  power  of  sale  given  to  foreign  executors  named  in 
a  non-resident's  will  cannot  be  exercised  by  an  ancillary  ad- 
ministrator with  the  will  annexed  appointed  by  the  surro- 
gate of  the  county  of  this  state  in  which  the  realty  is  situate, 

s-Casselman  v.  McCooley,  TJ,  N.  ^^Ker   v.    Banta.   71    N.   J.   Eq.. 

J.  Eq.,  253.  49. 

83Hegeman  v.  Roome,  70  N.  J.  ssQrphans'    Court   Act,   sec.   23. 

Eq.,  562.  See  p.  211,  supra. 


Real  Property.  443 

where  the  executors  are  acting  as  such  in  the  jurisdiction  of 
testator's  domicile.®"  In  the  case  of  In  re  Carter's  Estate,"  the 
Court  of  Errors  and  Appeals  held  that  the  sole  right  to  exer- 
cise a  power  of  sale  contained  in  the  will  of  a  non-resident, 
after  the  death  of  the  executor  therein  named  resided  in  the 
general  administrator  c.  t.  a.  appointed  in  the  foreign  jurisdic- 
tiqn  on  the  death  of  the  executor,  and  that  an  administrator 
appointed  by  the  courts  of  this  state  has  not  such  power. 

Power   of   Executor   or   Administrator   c.   t.   a.   of   Foreign 
Will  Recorded  in  This  State. 

The  Orphans'  Court  Act,'*  provides  that  if  upon  the  filing 
of  the  record  of  probate  of  a  will  admitted  to  probate  in  an- 
other state,  or  in  a  foreign  country,  it  appears  that  the  will 
was  executed  in  accordance  with  the  laws  of  this  state,  the 
filing  of  such  record  shall  have  the  same  effect  as  if  the  will 
had  been  admitted  to  probate,  and  letters  testamentary,  or  of 
administration  with  the  will  annexed  thereon,  had  been  issued 
in  this  state,  and  that  such  executor  or  administrator  may  ex- 
ercise a  power  of  sale  contained  in  such  will,  in  the  same  man- 
ner as  if  the  wdll  had  been  admitted  to  probate  in  this  state — 
that  is,  an  executor,  without  recourse  to  any  court  for  au- 
thority ;  an  administrator  c.  t.  a.  subject  to  the  approval  of 
the  orphans'  court  of  the  county  wdierein  the  lands  are  situate. 

In  Case  Will  Directs  Sale  Without  Naming  an  Executor. 

Whenever  any  wall  hath  heretofore  been  duly  made  and 
executed,  or  shall  hereafter  be  duly  made  and  executed,  au- 
thorizing or  directing  any  lands,  tenements,  hereditaments 
or  real  estate,  mentioned  therein,  to  be  sold,  and  no  executor 
or  executors  hath  or  have  been  or  shall  be  named  in  said  will 
and  letters  of  administration  with  the  will  annexed  have  been 
or  shall  be  granted  thereon,  any  deed  or  conveyance  heretofore 
made  and  delivered,  or  which  may  hereafter  be  made  and  de- 
livered, by  such  administrator  or  administrators  with  the  will 
annexed,  or  the  survivors  or  survivor  of  them,  for  said  lands, 
tenements,  hereditaments  or  real  estate,  pursuant  to  any  power 

8«Smith  V.  Abbott,  79  N.  T.  Hq.,         8-88  Atl.  Rep.,   1084. 
'^7-  ^''Sec.  24,  p.  213,  supra. 


446  Probate  Law  and  Practice. 

or  direction  in  the  said  will,  shall  be  as  good,  valid  and  effec- 
tual as  if  the  same  were  made  and  delivered  by  any  executor 
or  executors  who  might  have  been,  or  might  be  named  in  said 
will.«« 

CONFIRMATION  OF  SALE. 

Confirmation  of  Sale  Required. 

No  sale  of  lands  hereafter  made  by  an  administrator  or  ad- 
ministrators with  the  will  annexed,  or  by  an  administrator  or 
administrators  dc  bonis  non  with  the  will  annexed,  shall  be 
valid  until  the  terms  thereof  shall  have  been  submitted  to  the 
orphans'  court  of  the  county  in  which  the  lands  proposed  to  be 
sold  lie  or  shall  lie,  and  approved  by  said  court.'"' 

Petition  for  Confirmation. 

The  Orphans'  Court  rules  require  that  application  for  the 
confirmation  of  sales  by  administrators  with  the  will  annexed 
shall  DC  by  petition,  which  shall  state  the  names  and  addresses 
of  all  parties  in  interest,  and  shall  have  annexed  thereto  af- 
fidavits of  at  least  two  persons  familiar  with  the  value  of 
property  in  the  neighborhood  where  the  lands  so  sold  are  lo- 
cated, giving  the  fair  market  value  of  the  lands  and  premises 
so  sold.^^ 

Notice  of  Intention  to  Report  Sale  for  Confirmation. 

Notice  of  the  intention  of  any  administrator  with  the  will 
annexed  for  the  confirmation  of  a  sale  of  lands  made  by  him 
shall,  unless  the  court  shall  otherwise  direct,  be  given  to  all 
persons  in  interest.  Five  days'  notice  of  such  application  shall 
be  given  to  all  persons  in  interest  who  are  residents  of  the 
state  of  New  Jersey,  and  not  less  than  five,  nor  more  than 
sixty,  days'  notice,  as  the  court  may  by  order  direct,  to  all  per- 
sons in  interest  who  shall  reside  without  the  state  of  New 
Jersey,  which  last  mentioned  notice  may  be  sent  by  mail,  with 
the  postage  thereon  prepaid. ^- 

S92  Comp.  Stat.,  2262,  sec.  12.  '^Orphans'    Court    Rule    35.    p. 

='02   Comp.   Stat.,   2263,    sec.    14.      764,  infra. 
siQrphans'  Court  Rules  33  and 
34,  p.  763.  infra. 


Real  Property.  447 

Jurisdiction  of  Orphans'  Court. 

Upon  an  application  by  an  administrator  cum  testamento  an- 
Jiexo  for  the  approval  of  a  sale  of  testator's  lands,  the  orphans* 
court  has  no  jurisdiction  to  consider  or  adjudicate  upon  a  claim 
that  the  lands  descended  to  testator's  heirs-at-law,  or  were  spe- 
cifically devised  by  the  will,  and  were  not  within  the  power 
of  sale  conferred  by  the  will;  but  such  administrator  must 
establish,  by  proof,  his  right  to  act  as  administrator  cum  testa- 
mento annexo  in  this  state,  in  order  to  give  jurisdiction  to 
the  orphans'  court. ^^ 

Security  Required  from  Administrator  c.  t.  a. 

It  shall  be  the  duty  of  the  court,  upon  any  application  by  an 
administrator  or  administrators  with  the  will  annexed,  or  the 
survivors  or  survivor  of  them,  or  by  substituted  adminis- 
trator or  administrators  with  the  will  annexed,  or  the  sur- 
vivors or  survivor  of  them,  for  an  order  confirming  the  terms 
of  any  sale  made  or  to  be  made  by  him  or  them  under  any 
power  of  sale  contained  in  such  will,  before  confirming  such 
sale,  in  their  discretion,  to  require  such  administrator  or  ad- 
ministrators with  the  will  annexed,  and  such  administrator 
or  substituted  administrators  with  the  will  annexed,  to  give 
such  additional  security,  by  bond  to  the  ordinary,  as  said 
court  shall  deem  advisable,  having  regard  to  the  value  of  the 
rea:l  estate  ordered,  directed  or  authorized  to  be  sold  in  said 
will,  for  the  proper  distribution  of  the  proceeds  of  the  sale'of 
such  real  estate.^* 

Proof  of  Value  of  Lands. 

Before  confirming  a  sale  made  by  an  administrator  c.  t.  a., 
the  court  should  be  satisfied  that  the  sale  is  advantageous  to  the 
estate,  and  that  a  fair  price  has  been  obtained.  It  is  therefore 
necessary  to  offer  evidence  of  the  value  of  the  premises  in 
question.  This  may  be  either  by  oral  evidence  of  persons 
familiar  with  the  value  of  the  property,  or,  as  is  the  usujil 

"3In  re  Devinc.  62  N.  J.  Kq.,  West  Jersey  Title  Co.,  71  N.  J. 
703.      Ocean    View,    &c.,    Co.    v.       L.,   600-604.  '       '• 

"*2  Comp.  Stat.,  2263,  .sec.  14.  t 
30 


448  Probate  Law  and  Practice. 

practice,  by  annexing  to  the  petition  the  affidavits  of  at  least. 
two  real  estate  agents  familiar  with  the  values  of  property  in 
the  neighborhood  of  the  premises  in  question,  as  to  the  value 
of  the  same.  When  the  fair  value  of  land  may  be  afifected  by 
adverse  claims  of  title,  there  should  be  sufficient  proof  of  the 
nature  and  extent  of  such  claims  to  enable  the  orphans'  court 
to  determine  whether  the  sale  has  been  made  at  a  fair  price. ^'' 

Purchaser  not  Required  to  Look  to  Application  of  Pur- 
chase Money. 

In  case  of  any  sale  of  lands  by  an  administrator  with  the 
will  annexed,  or  by  an  administrator  de  bonis  non  with  the 
will  annexed,  ordered,  directed  or  authorized,  in  such  will. 
whether  the  proceeds  of  such  sale  be,  by  the  terms  of  such  will, 
impressed  with  a  s]jecial  trust  or  not.  the  purchaser  of  the 
lands  so  sold  shall  not  be  required  to  look  to  the  application  of 
the  purchase  money."" 

The  receipt  or  acknowledgment  in  writing,  whether  by  deed 
or  otherwise,  heretofore  given,  or  which  may  hereafter  be 
given,  by  any  executors  or  executor,  administrators  or  admin- 
istrator with  the  will  annexed,  trustees  or  trustee,  for  any 
money  heretofore  paid,  or  that  may  hereafter  be  paid  to,  and  re- 
ceived by,  them  or  him.  by  reason,  or  in  the  exercise  of  execu- 
tion, of  any  trust  or  power,  shall  be  full  and  sufficient  discharge 
for  the  money  therein  expressed  to  be  received,  and  shall 
effectually  exonerate  the  person  who  has  heretofore  paid,  or 
may  hereafter  pay,  such  money,  and  his  or  her  legal  representa- 
tives, from  seeing  to  the  application  thereof,  or  from  being 
answerable  for  any  loss  or  misapplication  thereof,  unless  the 
contrary  shall  be  expressly  declared  by  the  instrument  creating 
such  trust  or  power."^ 

While,  as  a  general  rule,  a  purchaser  from  an  administrator 
c.  t.  a.  or  trustee  is  not  bound  to  see  to  the  application  of  the 
purchase  money,  he  may  nevertheless  be  held  responsible  for 
the  misapplication  of  the  same,  by  evidence  showing  that  at 

^'•In    re    Devine,   62   N.   J.   Eq.,  »«2  Comp.  Stat.,  2264.  sec.  15. 

703,  and  see  Orphans'  Court  Rule  ^'P.    L.    1884,    p.   20.     2    Comp. 

34.  p.  763.  infra.  Stat.,  2267,  sec.  25. 


Real  Property.  449 

the  time  of  the  purchase  he  knew  that  the  trustee  contem- 
plated a  breach  of  trust,  and  intended  to  misappropriate  the 
money,  or  was  by  the  very  act  applying  it  to  his  own  private 
purpose.®* 

CONVEYANCES  BY  FEME  COVERT  EXECUTRIX  OR  AD- 
MINISTRATRIX C.  T.  A. 

Conveyance   of  Lands  by   Married   Executrix. 

In  case  any  married  woman  is  a  trustee  under  or  executrix 
of  any  last  will  of  any  ])ers<)n,  or  shall  hereafter  be  appointed 
such  trustee  or  executrix,  cither  sole  or  in  conjunction  with 
another,  or  has  been  or  shall  hereafter  be  appointed  by  any 
court  of  competent  authority  administratrix  with  the  will  an- 
nexed of  any  testator,  it  shall  and  may  be  lawful  for  such 
married  woman  to  sign.  seal,  execute,  acknowledge  and  de- 
liver, without  the  joining  of  her  husband  therein,  in  the  same 
manner  as  if  she  were  a  feme  sole,  any  and  all  deeds  conveying 
the  lands  of  such  testator  in  conformity  with  the  powers  given 
in  such  will,  and  such  deed  shall  vest  in  the  purchaser  thereof 
as  good  and  valid  a  title  to  the  lands  so  conveyed,  as  if  such 
trustee,  executrix  or  administratrix  with  llic  will  annexed 
were  unmarried.''^ 

Lands   Purchased   by    Married    Executrix   at    Foreclosure 
Sale. 

Where  any  administratrix  or  executrix  is  a  married  wcjmaii 
and  has  heretofore  or  hereafter  shall  become  the  purchaser 
of  lands,  tenements  (jr  hereditaments  covered  bv  any  mort- 
gage forming  a  part  of  the  assets  of  the  estate  in  her  hands  at  a 
sale  upon  a  foreclosure  of  any  such  mortgage,  the  lands,  tene- 
ments or  hereditaments  so  conveyed  shall  be  assets  in  the 
hands  of  such  administratrix  or  executrix,  and  may  be  sold  and 
conveyed  by  her  without  any  order  of  court  and  without  her 
husband  joining  with  her  in  the  execution  of  the  conveyance 
iherefor,  and  such  conveyance  shall  vest  in  the  purchaser  or 
])nrchasers  the  title  to  such  lands,  tenements  or  hereditaments 

»8Foster   v.   Dey.   27   N.   J.   Kq..  ""p.   T..    1901,   p.    141.     2   Comp. 

599-  Stat.,    p.   2273.    sec.   41. 


450  Probate  Law  and  Practice. 

as  fully  to  all  intents  and  purposes  as  if  said  administratrix  or 
executrix  were  sole  and  unmarried,  and  she  shall  be  account- 
able for  and  pay  over  the  proceeds  of  such  sale  as  other  moneys 
belonging  to  such  estate  in  her  hands. ^''^ 

RIGHT  OF  EXECUTOR,  &c.,  TO  PURCHASE  AT  HIS  OWN 

SALE. 

General  Rule. 

The  rule  is  inflexible  that  a  sale  made  by  an  executor  or  any 
other  person  acting  in  a  fiduciary  capacity,  to  himself,  or  for 
his  benefit,  directly  or  indirectly,  will  be  set  aside  at  the  in- 
stance of  the  party  prejudiced,  though  the  sale  be  at  public 
auction,  in  good  faith  and  for  a  fair  price,  and  the  trustee  shall 
have  gained  no  advantage  therefrom.^  This  rule  is  one  of  pub- 
lic policy.  The  trustee  is  not  prevented  from  bidding  for 
property  which  he  himself  sells,  on  the  ground  simply  of  a 
supposition  ofactual  fraud,  but  because  the  law  has  established, 
as  an  inflexible  rule  applicable  to  every  emergency,  that  he 
shall  not  place  himself  in  a  situation  in  which  he  will  be 
tempted  to  take  advantage  of  his  cestui  que  trust.     An  execu- 

10"?.  L.  1901,  p.  359.     2  Comp.  on  p.  230.    Staats  v.  Bergen,  17  N. 

Stat.,  p.  2266,  sec.  23.  J.    Eq.,    297.      Affirmed,    ib.,    554. 

•  'Arrowsmith  v.  Van  Harlingen,  Von  Hurter  v.  Spengeman,  17 -N. 

1  N.  J.  L.,  26.  Winans  v.  Brook-  J.  Eq.,  185.  Blauvelt  v.  Acker- 
field,  5  N.  J.  L.,  847.  Den  v.  man,  20  N.  J.  Eq.,  141,  and  cases 
Wright,  7  N.  J.  L.,  175.  Den  v.  cited  on  p.  146.  Smith  v.  Drake. 
McKnight,  11  N.  J.  L.,  385.  Ob-  '  23  N.  J.  Eq.,  302.  Wright  v. 
ert  V.  Hammel,  18  N.  J.  L.,  73..:  Smith,  23  N.  J.  Eq.,  106.  Carson 
Runyon  v.  Newark  India  Rubber  v.  Marshall,  37  N.  J.  Eq.,  213,  and 
Co.,  24  N.  J.  L..  467.  Shepherd  v.  cases  cited  on  p.  215.  Affirmed. 
Hedden,  29  N.  J.  L.,  334-337-  38  N.  J.  Eq.,  250.  Bechtold  v. 
Trenton  Banking  Co.  v.  Woodruff,  Read,  49  N.  J.  Eq.,  iii,  and  cases 

2  N.  J.  Eq.,  117.  Williamson  v.  cited  on  p.  123.  Reversed,  54  N.  J. 
Johnson,  5  N.  J.  Eq.,  537.  Obert  Eq.,  407.  Scott  v.  Gamble,  9  N.  J. 
v...Q.bert,  10  N.  J.  Eq.,  98.  Af-  Eq.,  218.  Mulford  v.  Bowen,  9  N. 
firmed,  12  N.  J.  Eq.,  423.  Culver  J.  Eq.,  797.  Romaine  v.  Hendrick- 
V.  Culver,  11  N.  J.  Eq.,  215.  Hoi-  son,  27  N.  J.  Eq.,  162.  Affirmed, 
combe  V.  Holcombe,  11  N.  J.  Eq.,  28  N.  J.  Eq.,  275.  Creveling  v. 
281.  Wortman  v.  Skinner,  12  N.  Fritts,  34  N.  J.  Eq.,  134.  Swift  v. 
J.  Eq.,  358.  Huston  v.  Cassedy,  Craighead,  75  N.  J.  Eq.,  102.  Af- 
13  N.  J.  Eq.,  228,  and  cases  cited  firmed,  75  Atl.  Rep.,  975. 


Real  Property.  451 

tor,  administrator,  guardian  or  trustee,  must  therefore  submit 
to  this  regulation;  and  if  he  does  any  act  in  violation  of  it. 
no  matter  how  pure  his  intentions  may  be,  such  act  is  voidable 
at  the  instance  of  the  person  whom  he  represents.  At  these 
sales,  the  trustee  is  forbidden  to  purchase,  because  his  interest 
as  such  purchaser  is  opposed  to  the  interest  of  his  cestui  que 
trust,  and  he  therefore  acts  under  a  bias  in  his  OAvn  favor ; 
nor  does  this  rule  rest  to  any  considerable  extent  upon  the 
fact  that  in  a  particular  line  of  cases  the  trustee  has  peculiar 
opportunities  for  the  practice  of  fraudulent  acts  with  regard 
to  the  property  in  his  charge.  The  rule,  to  be  efficacious,  must 
be  general ;  the  law  implies,  that  in  all  cases  of  trusts  such  op- 
portunities may  exist;  and  consequently  the  prohibition  is 
universal.  So  jealous  is  the  law  on  this  point,  that  a  trustee 
may  not  put  himself  in  a  position  in  which  to  be  honest  must  be 
a  strain  upon  him.- 

The  law  is  most  strict  in  denying  trustees  any  profit  to  be 
derived  from  any  kind  of  traffic  in  the  property  of  the  trust 
estate.^  Thus  an  executor  authorized  to  purchase  real  estate 
for  investment  under  a  direction  of  the  will  of  his  testator  can- 
not sell  his  own  land  to  himself  as  executor  for  such  a  pur- 
pose.* So  where  an  executor  or  administrator  ordered  to  sell 
lands  for  debts  colludes  with  the  purchaser,  whereby  the  land  is 
sold  for  less  than  its  true  value,  the  sale  is  voidable ;'  and 
where  one  intermarried  with  the  widow,  who  was  the  executrix 
of  her  late  husband,  and  who  had  proved  and  then  taken  upon 
herself  the  execution  of  the  will,  it  was  held  that  by  his  mar- 
riage he  assumed  all  the  responsibilities  which  devolved  upon 
his  wife  as  executrix,  and  that  he  could  not  become  the  pur- 
chaser of  lands  sold  by  his  wife  as  executrix."  So  where  a 
trustee,  being  in  possession  of  land  belonging  to  the  trust 
estate  under  a  lease  made  by  himself  and  his  co-trustee,  and 
good  against  the  cestuis  que  trustent  only  because  made  in  the 
ordinary  course  of  business  and  for  a  full  rental,  pursuant  to 

-Staats  V.  Bergen,  17  N.  J.  Eq.,  ''Runyon  v.  Newark  India  Rul)- 

554-558.  ber  Co.,  24  N.  J.  L.,  467. 

3Hill  V.  Hill,  79  N.  J.  Eq.,  521.  "Scott  v.  Gamble,  9  N.  J.  Eq., 

*Holcombe  v.  Holcombe,  11   N.  218. 
J.  Eq.,  281.    Reversed,  ib.,  476. 


452  Pkobativ  Law  and  Practice. 

a  course  of  practice  to  which  they  had  impHedly  assented, 
found  a  purchaser  for  the  property  at  a  price  materially  above 
the  fair  market  value,  and  thereupon  consented  to  the  sale, 
including-  a  surrender  of  his  leasehold,  it  was  held  that  the 
trustee  was  entitled  only  to  compensation  for  what  he  had 
lost  by  the  surrender,  to  be  computed  according  to  the  qiiantnm 
valehat,  and  must  concede  the  whole  of  the  special  profit  to 
the  estate  of  which  he  was  trustee."  Where  an  executor,  who 
is  also  a  trustee  under  a  will,  and  whose  primary  duty  is  to 
prevent,  if  possible,  the  foreclosure  of  a  mortgage  affecting  a 
])art  of  the  trust  estate,  induces  a  foreclosure  thereof,  and  in- 
directly becomes  the  purchaser  of  the  mortgaged  property  at 
the  foreclosure  sale,  such  transaction  is  voidable  at  the  in- 
stance of  the  beneficiaries  under  the  will,  and  in  equity  he 
will  be  regarded  as  occupying  the  same  position  as  though  he 
had  merely  purchased  the  mortgage  and  will  be  held  liable  to 
account  to  the  beneficiaries ;  independently  of  the  question  of 
the  extent  to  which  such  executor  and  trustee  may  have  in- 
duced the  foreclosure  in  his  own  behalf,  he  occupies  a  position 
which  renders  it  impossible  for  him  to  become  a  purchaser  of 
the  property  at  the  sale  and  thereby  hold  the  title  adversely  to 
the  devisees  named  in  the  will,  and  even  though  it  may  be 
found  that  such  transaction  has  been  without  thought  of 
wrong,  and  beneficial  to  the  cestui  que  trust,  public  policy  re- 
quires that  the  transaction  be  held  to  be  voidable  at  the  instance 
of  the  latter  for  the  defined  policy  of  the  law  arises  from  the 
necessity  of  removing  temptations  for  self  gain  from  all  per- 
"sons  having  trust  duties  to  perform.*' 

If,  however,  a  trustee  advertises  and  prepares  for  the  sale 
with  proper  care  and  diligence  and  in  good  faith,  without  en- 
tertaining the  least  intention  of  becoming  a  purchaser,  and.  in 
case  of  a  sale  at  auction,  does  not  in  fact  directly  or  indirectl\ 
bid  for  the  property,  and  it  is  struck  off  in  good  faith  to  an- 
other person,  there  is  a  complete  absence  of  any  of  those  ele- 
ments of  danger  to  the  cestui  que  trust  which  underlie  the  re- 

'Hill  V.  Hill,  79  N.  J.  Eq.,  521.  ^Van  Alstyne  v.  Brown,  77  N.  J. 

Eq.,  455- 


•  Real  Property.  453 

strictive  rule  under  consideration ;"'  and  any  agreement  made, 
however  soon  after  the  land  is  struck  oil,  by  the  administrator 
with  the  purchaser  for  the  sale  of  the  land  to  the  former,  is 
within  neither  the  letter,  the  spirit  nor  the  meaning  of  the 
rule  ;  the  rule  has  then  had  its  operation  upon  the  sale,  and  the 
land  is  again  instantly  free  for  all  the  world  to  purchase.^'' 
But  the  fact  that  a  purchaser  at  an  administrator's  sale  was 
a  man  of  no  means,  and  that  on  the  same  day  the  administrator 
conveyed  the  property  to  him  he  re-conveyed  it  to  the  adminis- 
trator, is  sufficient  proof,  in  the  absence  of  any  explanation  of 
the  transaction,  that  the  purchase  was  made  for  the  benefit  of 
the  administrator.^^ 

Where  Executor  Purchases  at  Official  Sale. 

The  rule  that  an  executor  may  not  purchase  at  his  own  sale 
applies  as  well  w^ien  the  sale  is  made  by  a  sheriff  or  master,  as 
when  it  is  made  by  the  trustee  himself,  and,  in  the  latter  case, 
as  well  when  the  sale  is  made  by  the  trustee  under  his  own 
authority,  as  when  made  under  a  judicial  order  or  decree;  and 
a  trustee  is  not  relieved  from  his  incapacity  to  become  a  pur- 
chaser by  the  mere  fact  that  the  legal  estate  of  the  property 
purchased  is  not  in  him.^- 

Relief  Afforded  Cestui  Que  Trust. 

A  sale  of  lands  to  himself  by  an  executor  or  other  trustee  is. 
as  has  been  seen,  voidable  at  the  instance  of  the  cestui  que 
trust,  or  heir  at  law.  The  expression  used  by  the  court  in 
Wright  v.  IVright,^''  that  a  sale  by  an  administrator  to  himself 
for  his  own  benefit  is  void,  is  too  strong ;  it  is  voidable,  not 
void,  and  may  be  voided  by  cestnis  que  trusteut  and  their  heirs  ; 
but  strangers  cannot  impeach  or  question  it,  neither  can  one 

'•Scott     V.     Gamble,     9     N.     J.  Eq.,  292,  300.     Creveling  v.  Fritts. 

Eq.,  218.    Mulford  v.  Bowen,  9  N.  34   N.   J.    Eq.,    134.     Wortman  v. 

J.  Eq.,  797-798.     Staats  v.  Bergen.  Skinner,  12  N.  J.  Eq.,  358-371- 
17  N.  J.  Eq.,  554-558.     Bassett  v.  ^'Obert  v.  Obert,   10  N.  J.  Eq., 

Schoemaker,  46  N.  J.  Eq.,  538,  and  98.    Affirmed,  12  N.  J.  Eq.,  423. 
cases  cited.    Wortman  v.  Skinner,  '-Staats  v.  Bergen,  17  N.  J.  Eq., 

12   N.   J.   Eq.,   358.     Voorhees    v.  297.     Marr  v.  Marr,  73  N.  J.  Eq., 

Bailey,  59  N.  J.  Eq.,  292.  643. 

'"Voorhees   v.   Bailey,   59  N.  J.  '^7  N.  J.  I,.,  175. 


454  Probate  Law  and  Practice. 

of  the  executors,  who  was  a  party  to  the  deed,  repudiate  such 
deed,  nor  can  any  person  claiming  under  such  executor.^*  In 
the  case  of  Burnett  v.  Eaton,''^  where  an  executor  purchased 
at  his  own  sale,  the  court  ordered  a  re-sale,  with  a  provision 
that  if  the  premises  brought  less  than  the  executor  bid,  the  sale 
to  him  would  be  confirmed;  and  where  it  is  necessary  that 
trust  lands  be  sold,  and  the  trustee  is  in  a  situation  that  induces 
him  to  give  more  than  any  other  purchaser  would  give,  the 
court  may  authorize  a  sale  by  him  at  a  full  fair  price,  to  be  ap- 
proved by  the  court,  to  himself  or  to  someone  for  his  benefit  ;^*' 
but  if  the  cestui  que  trust  is  an  infant,  then  the  court,  when 
the  question  is  directly  or  incidentally  presented,  will  deal 
with  the  conveyance  as  it  shall  consider  best  and  most  ad- 
vantageous to  the  infant.^' 

The  measure  of  damages  which  a  cestui  que  trust  is  entitled 
to  recover  against  his  trustee  as  compensation  for  a  breach 
of  trust  is,  at  the  option  of  the  cestui  que  trust,  either  the 
amount  he  has  actually  lost  by  the  breach,  or  the  amount,  if 
anything,  which  the  trustee  has  gained  thereby  ;^^  and  where, 
on  the  ground  of  an  abuse  of  trust,  an  administrator  is  called 
upon  to  account  for  the  value  of  property  improperly  sold 
by  him,  any  doubts  as  to  its  true  value  should  be  resolved  in 
favor  of  the  cestuis  que  trustent.  The  trustee  should  not  be 
permitted,  by  raising  doubts  by  the  production  of  conflicting 
opinions  as  to  the  value  of  the  property,  to  derive  an  advantage 
from  his  impropeF  dealings  with  the  trust  estate,  but  should 
rather  be  compelled  to  account  upon  the  basis  of  estimates 
made  by  intelligent  and  reliable  witnesses  on  the  part  of  the 
cestuis  que  trustent}^ 

^■*Runyon  v.  Newark  India  Rub-  i*^Colgate   v.    Colgate,   23    N.   J. 

ber  Co.,  24  N.  J.  L.,  467-475.  Shep-  Eq.,  372. 

herd  v.  Hedden,  29  N.  J.  L.,  334-  ^"Holcombe  v.  Holcombe,  11  N. 

338.    Obert  V.  Obert,  10  N.  J.  Eq.,  J.  Eq.,  281.     Reversed,  ib.,  476. 

98.     Affirmed,   12  N.  J.  Eq.,  423-  i^Proprietors    of    Eastern    New 

427.    Swift  V.  Craighead,  75  N.  J.  Jersey  v.  Force,  72  N.  J.  Eq.,  56- 

Eq.,  102.     Affirmed,  75  Atl.  Rep.,  127. 

975.    Marr  v.  Marr,  73  N.  J.  Eq.,  ^^fjuston   v.    Cassidy,    14   N.   J. 

643.  Eq.,  320-322. 

1529  N.  J.  Eq.,  466. 


Real  Property.  455 

Effect  of  Laches. 

It  is  a  general  rule  that  a  court  of  equity  will  refuse  relief 
on  account  of  the  laches,  or  unreasonable  delay  of  those  con- 
cerned ;-•'  but  in  the  application  of  the  doctrine  of  laches,  where 
rights  of  ccstiiis  que  trustent  are  involved,  and  the  trustee  is 
charged  with  fraud,  the  latitude  extended  in  favor  of  the 
cestnis  que  trustent  is  very  much  more  liberal  than  in  other 
cases  where  the  same  defense  is  relied  upon.-' 

Ratification  of  Sale  by  Cestui  Que  Trust, 

Although  a  sale  by  a  trustee  to  himself,  either  directly  or  in- 
directly, is  voidable  at  the  instance  of  the  cestui  que  trust,  it 
may  become  binding  against  him  by  ratification,  either 
express  or  implied.--  It  is  manifest  that  the  right  of  the 
cestui  que  trust  to  avoid  the  contract  should  not  be  without 
limitation.  While  some  courts  have  held  such  dealings  to  be 
contrary  to  public  policy,  and  voidable  at  the  instance  of  the 
cestui  que  trust,  the  better  and  prevailing  view  appears  to  be 
that  such  dealings  are  presumed  to  be  invalid,  but  will  be  sup- 
ported if  the  trustee  can  show  that  the  cestui  que  trust  acted 
voluntarily  and  with  entire  freedom  from  any  influence  arising 
by  reason  of  the  trust  relationship,  and  with  intelligence  and 
full  knowledge  of  all  the  circumstances.-'*  Thus,  wdiere  it  ap- 
pears that  the  complainant  received  the  purchase  money  and 
deliberately  ratified  the  sale  with  a  full  knowledge  of  the  facts 
which  would  avoid  it,  it  is  a  bar  to  any  relief  which  equity 
might  otherwise  have  afforded.-*  So  where  an  administrator 
sells  lands  of  his  intestate  under  an  order  of  the  orphans' 
court,  and  himself  becomes  the  purchaser,  and  pays  money 
on  account  of  the  purchase  and  makes  improvements  on  the 
land,  if  afterward  an  ejectment  is  brought  by  the  heirs-at-law 

-"Obert  V.  Obert,  12  N.  J.  Eq.,  11   N.  J.  Eq.,  281.     Reversed,  ib., 

423.    Smith  V.  Drake,  23  N.  J.  Eq.,  476. 

302.  -•■'Swift   V.   Craighead,   75   N.   J. 

-'Bcchtold  V.  Read,  49  N.  J.  Eq.,  Eq.,   102.     Affirmed,  75  Atl.  Rep., 

III.  975- 

22Hance  v.  McKnight,  11  N.  J.  24Scott  v.  Gamble,  9  N.  J.  Eq., 

L.,  385.     Holcombe  v.  Holcombe,      218.    Voorhees  v.  Bailey,  59  N.  J. 

E.q.,   292. 


456  Pkobatic  Law  and  Practice. 

of  the  intestate,  the  administrator  may,  under  some  circum- 
stances, maintain  his  bill  and  enjoin  the  proceedings  at  law, 
and  have  the  equities  of  the  parties  settled  in  the  Court  of 
Cliancerv  ;  but  if  the  administrator  has  purchased  under  any 
circumstances  which  imply  moral  turpitude,  a  court  of  equity 
will  not  aid  him.  Relief  is  granted  only  on  the  ground  that 
the  administrator  in  purchasing  acted  in  good  faith,  and  for 
the  benefit  of  the  trust.-^ 

Where  Authorized  by  Will. 

Where  a  testator  by  his  will  directs  that  if  either  of  his  ex- 
ecutors at  public  sale  purchase  any  part  of  his  real  estate,  the 
other  executor  shall  execute  a  deed  conveying  the  land  so  pur- 
chased, either  of  the  executors  has  a  right  to  purchase.-" 

Executor    or    Administrator    May    Purchase    Decedent's 
Lands  Sold  to  Satisfy  Execution. 

An  administrator,  being  a  trustee  merely  of  the  personal 
fund,  is  not  disqualified  thereby  from  bidding  for  the  landed 
estate,  he  not  being  the  person  entrusted  to  sell  it.-'  So  an  ex- 
ecutor may  purchase  property  belonging  to  his  testator,  and 
sold  by  the  sheriff  by  virtue  of  an  execution  for  the  satisfac- 
tion of  encumbrances  subsisting  upon  the  land  before  the  tes- 
tator acquired  title.-**  So  where  a  number  of  lots  were  con- 
veyed to  three  executors  in  satisfaction  of  a  debt  due  to  the 
testator,  and  one  of  the  executors  held  a  mortgage  on  some  of 
the  lots,  which  he  afterwards  foreclosed,  buying  in  the  lots 
at  a  fair  price,  it  was  held  that  he  did  not  hold  the  title  as 
trustee  for  the  estate  of  his  testator;-^  but  executors  charged 
with  the  sale  of  lands  to  pay  debts,  who  purchase  such  lands 
at  a  sheriff's  sale  under  execution  against  testator,  will  be  de- 
creed to  hold  such  lands  by  a  continuing  trust,  or  will  be  held 
to  account  for  the  proceeds  of  such  of  the  same  as  have  been 
re-sold  to  bona  fide  purchasers.^" 

-"Mulford    V.    Minch,    ii    N.   J.  -^Earl  v.   Halsey,   14  N.  J.  Eq.. 

Eq.,   16.  332. 

-♦Tennimore  v.  Fennimore,  3  N.  -^Lippincott  v.  Bechtold,  54  N, 

J.  Eq.,  292.  J.  Eq.,  407. 

■-■Den   V.   HiUman,   7   N.  J.   L.,  -"Marshall  v.  Carson,  38  N.  J. 

180.     Johns   V.    Norris,   22    N.   J.  Eq.,    250.      Bechtold    v.    Read.    49 

Eq..  102.     Reversed,  27  N.  J.  Eq.,  N.  T.  Eq..  iii. 
485. 


CHAPTER  XXVI. 
LIABILITY  OF  LANDS  FOR  PAYMENT  OF  DEBTS. 

General  Rule. 

In  the  absence  of  any  contrary  provisions  in  the  will,  lands 
are  not  assets  in  the  hands  of  executors  or  administrator^,  for 
the  payment  of  debts;  but  when  sold  for  the  payment  of  debts 
under  a  decree  of  the  orjjhans'  court,  the  money  received  by  the 
executor  or  achiiinistrator  from  their  sale  is  considered  assets.^ 
The  cases  of  Den  t.  Joiiesr  and  Wright  v.  Hartshorne^  were 
decided  under  the  provisions  of  the  statute  of  1747,*  which 
provided  that  the  real  estate  of  a  decedent  should  be  charge- 
able with  his  debts,  and  which  made  such  lands  chattels,  for 
the  satisfaction  of  debts  in  like  manner  as  personal  estates 
were     This  statute  was  repealed  in  1799.'' 

When  Lands  Charged  with  Debts  by  Will. 

Nothing  is  the  personal  estate  of  the  testator  that  was  not 
so  at  his  death.  If  a  testator  directs  lands  to  be  sold  and  con- 
verted into  money  to  pay  his  debts,  the  proceeds  become  a  fund 
which  is  liable  for  the  debts  of  the  testator,  not  because  it  is 
personal  property,  but  because  it  is  so  appropriated,  not  by 
law,  but  by  the  will  of  the  testator.  Where  therefore,  an  ex- 
ecutor was  ordered  by  a  will  to  sell  real  estate  to  pay  specific 
debts,  and  after  such  payment  the  balance  was  to  be  given 
to  a  daughter-in-law,  the  proceeds  of  the  sale  after  the  pay- 
ment of  such  debts  was  held  not  to  be  personal  property  ap- 
plicable to  the  payment  of  debts  of  the  estate  loefore  a  resort 
could  be  had  to  the  realty." 

'Haines   v.    Price,   20   N.  J.   L.,  •'AUinson,   p.    129. 

480.  "'Patterson,  p.  369. 

-I  N.  J.  L.,  131-133.  "Winants  v.  Terhune,   15  N.  J. 

3Cited  in  Lockyer  v.  DeHart,  6  Eq..  185. 
N.  J.  L.,  450-457. 


457 


458  Probate  Law  and  Practice. 

As  a  general  rule,  a  direction  by  the  testator  that  all  his 
debts  shall  be  paid  will  serve  to  charge  such  debts  on  the 
realty ;'  but  where  the  direction  is  that  the  executors  shall  pay 
the  debts,  such  effect  will  not  be  produced.^  Where,  however, 
the  testator  directs  his  executors  to  pay  his  debts  from  the 
real  or  personal  estate,  the  debts  will  be  charged  upon  the 
lands;^  but  even  though  the  debts  be  charged  upon  lands,  the 
personalty  remains  the  primary  fund  for  such  payment.^"  .; 

Under  a  general  power  to  sell  lands  to  pay  debts,  executors 
have  no  power  to  sell  lands  specifically  devised,  for  the  pay- 
ment of  debts  due  from  the  devisees  to  the  testator,  and  which 
he  directs  to  be  taken  from  their  respective  shares,  but  which 
are  not  collectible  for  want  of  property,  except  by  the  sale  of 
such  lands  ;^^  but  under  a  general  gift  of  a  residuary  estate  to 
children  in  equal  shares,  with  a  direction  that  debts  due  from 
certain  children  be  taken  from  their  shares,  and  a  limitation  of 
the  shares  of  the  sons  to  them  and  their  wives  for  life,  with 
remainder  to  their  children  in  fee,  the  entire  interests  of  the 
sons'  shares — the  remainder,  as  well  as  the  life-estate — are  sub- 
ject to  the  payment  of  the  debts  due  from  the  sons  respec- 
tively.^- 

Statutory  Provisions. 

The  statute  provides  that  the  lands,  tenements,  heredita- 
ments and  real  estate  of  any  person  who  shall  die  seized 
thereof,  or  entitled  to  the  same,  as  well  as  any  share  or  shares, 
or  part  or  parts  of  a  share  of  propriety  of  undivided  rights  or 
warrant  to  locate  lands  in  this  state,  shall  be  and  remain  liable 
for  the  payment  of  his  or  her  debts,  for  one  year  after  his  or 
her  decease,  and  may  be  sold  by  virtue  of  an  order  of  the 
orphans'  court  of  the  county  where  such  lands,  tenements, 
hereditaments   and    real    estate    shall   lie,    or   in   case   of    any 

^McKinley  v.  Coe,  66  N.  J.  Eq.,  loSuydam    v.    Voorhees,    58    N. 

70.  J.  Eq.,   157- 

^Shreve  v.  Shreve.  17  N.  J.  Eq.,  i^Youmans  v.  Youmans,  26  N. 

487.     Suydam  v.  Voorhees,  58  N.  J.  Eq.,   149. 

J.   Eq.,    157.  i^Youmans  v.  Youmans,  26  N. 

^Morse  v.  Hackensack  Savings  J.  Eq.,  149. 
Bank,  47  N.  J.  Eq.,  279. 


Liability  of  Lands  for  Debts.  459 

share  or  shares,  or  part  or  parts  of  a  share  of  propriety  of  un- 
divided rights,  or  warrant  to  locate  lands,  by  an  order  of  the 
orphans'  court  of  the  county  where  such  decedent  last  resided, 
if  obtained  within  the  said  period  of  time,  any  alienation,  or  en- 
cumbrance, made  or  attempted  to  be  made,  by  his  or  her  heir 
or  heirs,  devisee  or  devisees  to  the  contrary  notwithstanding ; 
provided,  ahvays.  that  nothing  herein  contained  shall  affect 
any  right  of  dower  in  the  said  lands,  tenements  and  real  es- 
tate.'^ 

Lien  Conferred  by  Statute. 

This  statute  subjecting  the  lands  of  a  decedent  to  his  debts 
imposes  such  debts  as  a  legal  burden  upon  the  lands  of  which 
the  decedent  shall  die  seized ;  consequently,  when  lands  are 
attempted  to  be  conveyed  in  fraud  of  creditors,  as  the  statute 
of  frauds  makes  such  conveyance  absolutely  void,  and  the 
debtor,  therefore,  in  contemplation  of  law  dies  seized  of  such 
lands,  a  creditor  has  his  claim  fastened  upon  them,  and  such 
lien  will  give  him  the  footing  to  file  a  bill  in  chancery  to  set 
aside  such  fraudulent  conveyance.^*  So  it  has  been  held  that 
the  expiration  of  one  year  from  the  death  of  decedent  does  not 
increase  the  estate  of  the  heir  or  devisee,  and  that  the  Court 
of  Chancery,  upon  the  application  of  a  creditor,  may,  after  the 
expiration  of  such  year,  enjoin  the  heir  or  devisee  from  selling 
the  land,  to  the  prejudice  of  the  lien  of  the  creditor  conferred 
by  the  statute,  until  the  orphans'  court  has  been  aflforded  an 
opportunity  to  enforce  his  lien  by  a  sale  of  the  land  to  pay 
debts.^^" 

Although  the  liability  to  debts  is  by  the  statute  in  terms 
limited  to  one  year,  still  it  has  always  been  held  that  until  a 
bona  fide  sale  has  been  made  by  the  heir  or  devisee,  the  lien 
continues.'"  '"  '''-  ^ 

i^Orphans'   Court   Act,    sec.   81.  i^Parret  v.  Van  Winkle,  cited  in 

3  Comp.  Stat.,  3838.  Warwick    v.    Hunt,    ri    N.   J.    L., 

i*Haston   v.   Castner,   31    N.  J.  at  p.  9.     Warwick  v.  Hunt,  11  N. 

I'",q.,   697.     Adoue   v.    Spencer,   62  J.  L.,  i.    Hasten  v.  Castner,  31  N. 

N.  J.  Eq.,  782.     Simpson  v.  Bock-  J.     Eq.,     697-699.     Westerv^jt     v. 

ius,  77  N.  J.  Eq.,  339.  Voorhis,  42  N.  J.  Eq.,  179-180.  Af- 

i^Incandescent   Liglit  &   C.   Co.  firmed,  43  N.  J.  Eq.,  642.     Salaun 

v.  Stevenson,  83  N.  J.  Eq.,  482.  v.  Hartshornc,  52   N.  J.   Eq.,  739, 

at  p.  743- 


460.  Probate  Law  and  Practice. 

Lands  Devised  in  Lieu  of  Dower  Liable. 

Lands  devised  to  a  widow  in  lieu  of  dower,  if  accepted  by 
her,  are  liable  to  their  proportion  of  the  debts  of  the  testator.^' 

LIABILITY    OF    PROCEEDS    OF    SALE    OF    LANDS    FOR 
PAYMENT   OF   DEBTS. 

Surplus  on  Foreclosure  of  Mortgage. 

The  surplus  money  arising  from  the  sale  of  mortgaged  prem- 
ises, in  cases  where  the  mortgagor,  or  person  owning  the  mort- 
gaged premises,  shall  be  deceased  at  the  time  of  the  sale,  may. 
if  in  the  opinion  of  the  chancellor  the  same  shall  be  expedient 
or  necessary  for  the  proper  administration  of  the  estate,  be  paid 
to  the  administrator  or  executor  of  said  deceased,  to  be  ad- 
ministered in  the  same  manner  as  money  arising  from  the  sale 
of  real  estate  made  by  administrators  or  executors ;  provided, 
said  administrator  or  executor  shall  enter  into  bond  as  now 
required  by  law,  upon  their  application  for  the  sale  of  real 
estate.^* 

In  order  to  induce  the  Court  of  Chancery  to  order  surplus 
money  arising  upon  sale  of  mortgaged  premises  to  be  paid  to 
the  personal  representative  of  the  owner  of  the  equity  of  re- 
demption, it  is  not  necessary  that  each  of  the  claims  presented 
to  such  personal  representative  should  be  finally  proved  and 
passed  upon  in  that  court;  it  is  sufficient  if  the  court  shall 
be  satisfied  that  it  is  expedient  or  necessary,  for  the  proper 
administration  of  the  estate,  that  such  payment  be  made;  and,  / 
notwithstanding  such  payment,  the  personal  representative  or 
other  person  interested  in  the  estate  is  at  liberty  to  contest  any 
of  the  claims  reported  by  him  to  the  court.'" 

Proceeds  of  Partition  Sale. 

When  it  appears  that  the  personal  estate  has  been  exhausted, 
and  that  there  is  a  fund  in  the  Court  of  Chancery,  the  proceeds 
of  the  sale  of  real  estate  under  proceedings  for  the  partition 

i^Bray   v.   Neill,   21    N.   J.   Eq.,  J.  Eq..  739.     For  practice  on  ap- 

343-  plication   for  surplus  proceeds  of 

'*i  Comp.  vStat.,  433,  sec.  63.  sale,  see  Kocher's  Chancery  Prac- 

''Salaun   v.   Hartshorne,   52   N.  tice.  p.  57,  et  seq. 


Liability  of  Lands  kok  Debts.  461. 

of  lands,  an  executor  may  apply  for  an  order  for  so  much  of 
the  said  moneys  as  may  be  necessary  to  pay  the  balance  of  tiie 
debts  due  from  the  estate  of  which  he  is  executor.-"  Upon  such 
an  application,  no  distinction  is  made  between  the  proceeds  of 
the  sale  of  personalty  in  such  proceedings  and  the  sale  of 
realty,  and  therefore  a  waiver  of  the  statute  of  limitations  by 
the  administrator  in  an  action  on  a  claim  applies  to  the  entire 
proceeds  and  not  merely  to  the  proceeds  from  the  i)ersonaltv.'-" 
Where  land  of  intestate  was  sold  in  partition  proceedings  by 
the  heirs  more  than  a  year  after  the  ancestor's  death,  and  the 
administrator  made  application  that  the  proceeds  be  devoted 
to  payment  of  debts,  it  was  held  that  a  creditor  of  an  heir  who 
issued  attachment  after  the  decree  of  sale,  but  before  the  sale, 
attained  priority  over  creditors  of  the  estate,  as  the  decree 
transferred  the  attachment  to  the  proceeds. -- 

Proceeds  of  Sale  Under  Condemnation  Proceedings. 

Where  lands  of  deceased  have  been  sold  by  condemnation 
proceedings,  the  proceeds  in  the  hands  of  the  citv  trea.surer 
may,  after  the  personalty  is  exhausted,  be  applied  to  the  pay- 
ment of  debts.-' 

ACTION  BY  CREDITOR  AGAINST  HEIR  OR  DEVISEE. 
Statutory  Provisions. 

All  and  every  creditor  or  creditors,  whether  by  simple  con- 
tract or  specialty,  and  whether  the  heirs  are  mentioned  therein 
or  not,  shall  and  may,  by  virtue  of  this  act,  have  and  maintain 
his.  her  and  their  action  and  actions  against  the  heir  and 
heirs-at-law  of  any  debtor  who  hath  already  died,  or  shall 
hereafter  die  intestate,  seized  of  any  messuages,  lands,  tene- 
ments or  hereditaments,  and  against  the  heir  and  heirs-at-law, 
and  devisee  and  dc\isees  of  such  debtor,  in  case  such  debtor 

zoHattersley  v.  Bissett,  52  N.  J.  see  "Debts  Barred  I)y  Limitation." 

Hn.,    6<;3.      For    practice    on    ap-  p,  526,  infra. 

I>lication  for  proceeds  of  sale,  see  ^apirgt       National       Bank       v. 

Kocher's     Clianccry     Practice,     p.  Thompson,  61   N.  J.  Eq.,   188. 

57-    et    seq.  -"'Manory    v.    Craige,    15    N.    J. 

^^ First        National       Bank       v.  F.q.,  -jt,. 
Thompson,  61   N.  J.  F,q.,   188,  and 


462  Probate  Law  and  Practice. 

made  any  last  will  and  testament;  and  such  heir  and  heirs 
and  devisees  shall  be  liable  and  chargeable  for  a  false  plea 
by  him,  her  or  them  pleaded  in  the  same  manner  as  any 
heir  should  have  been  for  any  false  plea,  by  him  pleaded,  in  any 
action  of  debt  upon  specialty,  or  for  not  confessing  the  lands 
or  tenements  to  him  descended ;  and  moreover,  all  such  cred^ 
itors  shall  be  preferred  as  in  actions  against  executors  and  ad- 
ministrators.-* 

Devisees  Liable  in  Same  Manner  as  Heirs. 

All  and  every  devisee  and  devisees  made  liable  by  this  act. 
shall  be  liable  and  chargeable  in  the  same  manner  as  the  heir 
and  heirs-at-law  by  force  of  this  act  notwithstanding  the 
lands,  tenements  and  hereditaments,  to  him,  her  or  them  de- 
vised shall  be  aliened  before  the  action  brought,  and  shall  be 
liable  to  like  judgments  and  executions  as  the  heir  and  heirs- 
at-law.-^ 

Heir  Liable  Though  He  Alien  Land  Descended. 

In  all  cases,  where  any  heir  or  heirs-at-law  is,  are  or  shall 
be  liable  to  pay  the  debt  of  his,  her  or  their  ancestor,  in  regard 
of  .any  lands,  tenements  or  hereditaments,  descending  lo  him. 
her  or  them,  and  shall  sell,  alien  or  make  over  the  same,  before 
any  action  brought,  or  process  sued  out  against  him.  her  or 
them,  such  heir  and  heirs-at-law  shall  be  answerable  for  such 
debt;  to  the  value  of  the  said  lands,  tenements  or  heredita- 
ments, so  by  him,  her  or  them  ^old,  aliened  or  made  over ;  in 
which  cases,  all  creditors  shall  be  preferred,  as  in  actions 
against  such  heir  or  heirs,  to  the  value  of  the  said  lands,  tene- 
ecution  shall  be  taken  out  upon  any  judgment  so  obtained, 
against  such  heir,  or  heirs,  to  the  value  of -the  said  lands,  tene- 
ments or  hereditaments,  as  if  the  same  were  his,  her  or  their 
own  proper  debt,  but  the  lands,  tenements  and  hereditaments. 
which  were  bona  fide  aliened  before  the  action  brought,  shall 
not  be  liable  to  such  execution."" 

-*3  Comp.  Stat.,  2739,  sec.  ..I.  -^2  Comp.  Stat.,  p.  2740,  ^ec.  2. 

-^2  Comp.  Stat.,  p.  2742.  sec.  4. 


Liability  of  Lands  for  Debts.  463 

What  Constitutes  an  Alienation. 

A  judgment  against  an  heir  or  devisee  upon  his  individual 
debt,  and  levy  of  an  execution  issued  thereon  upon  lands  de- 
scended or  devised,  prior  to  the  commencement  of  an  action 
against  the  heir  or  devisee  upon  a  debt  of  the  ancestor  or  tes- 
tator, is  not  an  alienation  within  the  meaning  of  the  act;"' 
and  a  devise  of  land  by  one  who  holds  as  devisee  of  one  who 
died  indebted  is  not  such  a  transfer  of  the  title  as  will  divest 
the  statutory  lien  of  the  creditors  of  the  first  devisor  ;-^  but 
it  has  been  held  that  a  bona  fide  mortgage  given  by  a  devisee 
upon  lands  devised  to  him,  and  executed  before  suit  brotight 
against  such  devisee  upon  the  debt  of  the  testator,  is  an  aliena- 
tion pro  tanto  of  the  lands,  and  will  take  precedence  over. a 
judgment  recovered  against  the  devisee  upon  the  debt  of  the 
testator,  notwithstanding  the  reversal  by  the  Court  of  Errors 
and  Appeals  of  the  judgment  of  the  Supreme  Court,  reported 
in  Den  v.  Jaques.-^  '■■  - 

Title  of  Bona  Fide  Purchaser.  ""^  noitoA  riarfW 

The  heir  and  devisee  are  responsible  after  alienation  of  the 
estate  as  if  they  still  held  it,  but  bona  fide  purchasers  hold  the 
lands  discharged  from  such  lien  ;^°  and  the  fact  that  the  alienee 
knew  that  the  land  had  belonged  to  the  decedent,  and  that  the 
decedent  left  debts  unpaid,  would  not  of  itself  be  evidence 
of  his  bad  faith. ^^ 

Necessity  for  Presentation  of  Claims. 

An  action  at  law  may  be  brought  against  heirs  and  devisees 
under  the  statute,  although  the  claim  be  not  presented  to  the 

-'Muldoon   V.   Moore,   55   N.  J.  J.  L.,  259.     Affirmed,  in  part  and 

L.,   410.  reversed   in   part,   Hal.   Dig.,   634. 

2*Salaun   v.   Hartshorne,   52   N.  See     also    McMahon    v.    Schoon- 

J.    Eq.,    739,    and    see    Ransom    v.  maker,  51  N.  J.  Eq.,  95,  at  p.  97. 
Brinkerhoff,  56  N.  J.  Eq.,   149.  ^'Den    v.   Jaques,    10    N.   J.    L., 

-^10  N.  J.  L.,  259.     McMahon  v.  259.      Affirmed,    in    part    and    re- 

Schoonmaker,  51  N.  J.  Eq.,  95.  versed  in  part,  sec  Hal.  Dig.,  .634. 

^''Skillman  v.  Van  Pelt,  i  N.  J.  See    also,    McMahon    v.    Schoon- 

Eq.,   511.     Den    v.   Jaques,    10   N.  maker,  51  N.  J.  Eq..  95.  at  p.  97. 

3^ 


464.  Probate  Law  and  Practice. 

executor  or  administrator,  and  there  is  sufficient  personal  prop- 
erty to  pay  the  debts.^- 

Effect  of  Presentation  of  Claim. 

The  creditor  of  a  decedent  is  not  barred  or  estopped  of  his 
action  against  heirs  or  devisees,  under  the  above  act,  because 
the  creditor  before  the  commencement  of  the  action  has  pre- 
sented a  duly  verified  claim  of  his  debt  to  the  executor  or  ad- 
ministrator, which  claim  has  been  accepted  by  the  latter  as  cor- 
rect.^^ 

When  Action  Will  Lie. 

An  action  of  covenant  will  lie  against  heirs  or  devisees  for 
the  breach  of  a  covenant  against  encumbrances  contained  in  a 
conveyance  of  the  ancestor  or  devisor.^*  So  if  the  endorser  of 
a  promissory  note  dies  before  its  maturity,  his  heirs  or  devisees 
may  be  sued  under  the  statute  upon  the  contract  of  endorse- 
ment.^"' 

When  Action  Will  Not  Lie. 

An  action  will  not  lie  against  the  heirs  of  a  deceased  devisee 
to  recover  debts  or  obligations  incurred  by  the  devisor.  The 
right  of  action  given  by  the  statute  is  not  given  for  the  pur- 
pose of  creating  and  enforcing  a  lien  upon  the  lands  devised  ; 
'  it  is  not  the  land,  but  the  devisee  who  is  made  liable  for  the  in- 
debtedness. That  liability  is  purely  personal,  and  survives,  if 
at  all,  not  against  the  heirs,  but  against  the  executors  and 
administrators  of  a  deceased  devisee. ^'^  It  is  otherwise,  how- 
ever, as  to  the  liability  of  the  heir  of  a  deceased  heir  of  a  de- 
ceased obligor  upon  the  bond  of  his  ancestor ;  this  result 
arises  from  the  fact  that  in  this  case  the  heir  is  not  only  the 
heir  of  his  immediate  ancestor,  but  also  of  the  deceased  obligor. 

3-Stone  V.   Todd,   49   N.  J.   L.,  "•*N.  J.  Insurance  Co.  v.  Meeker, 

274.     Dodson  V.  Taylor,  53  N.  J.  37  N.  J.  L.,  282. 

L.,  200.    Lime  &  Cement  Mfg.  Co.  sopo^jsoj^  y   Taylor.  53  N.  J.  L., 

V.  Harrington,  62  N.  J.  L.,  632,  at  200. 

p.  634.  36Congar  v.  Brady.  62  N.  J.  L., 

^^Newark  Lime  &  Cement  Mfg.  641. 
Co.    V.    Harrington.   62    N.   J.    L., 
632. 


Liability  of  Lands  for  Debts.  465 

and  so  is  just  as  much  bound,  both  by  the  very  terms  of  the 
specialty  and  by  the  words  of  the  statute,  as  is  he  upon  whom 
the  lands  first  descended.^' 

Jurisdiction  of  Chancery. 

The  liability  of  the  heirs  under  this  statute  is  purely  leijal, 
and  cannot  be  enforced  by  a  Ijill  in  equity;^*  but  where  a 
judgment  was  recovered  at  law  against  an  executor  for  his 
testator's  tort,  and  there  was  a  deficiency  of  j^ersonal  assets,  it 
was  held  that  a  bill  in  equity  would  lie  against  the  heirs  and 
devisees  to  subject  real  estate  descended  and  devised  to  the 
judgment.''" 

Parties. 

In  an  action  against  the  surviving  heirs  of  a  deceased 
obligor  upon  a  bond  of  their  ancestor,  the  heirs  of  a  deceased 
heir  having  lands  by  descent  should  be  joined  in  the  action  ; 
if  they  are  not,  the  non-joinder  may  be  pleaded  in  abatement.*'^ 

Pleadings — Complaint. 

In  a  complaint  under  this  statute,  it  is  not  necessary  to  aver 
that  the  personal  estate  is  insufficient  to  pay  the  debts  of  the 
decedent.*^ 

Answer. 

\\"here  any  action  shall  be  brought  against  any  heir  or  heirs, 
such  heir  or  heirs  may  plead  riens  per  descent  at  the  time  of 
the  original  writ  brought,  or  the  Ijill  filed  against  him,  her  or 
them ;  and  the  plaintift'  in  such  action  may  reply,  that  such 
heir  or  heirs  had  lands,  tenements  or  hereditaments  from  his. 
her  or  their  ancestor  before  the  original  writ  brought,  or  l)ill 
filed;    and  if  on  issue  joined  thereupon,  it  be  found  for  thr 

3"St.  Mary's  Church  v.  Wallace,  soHouston  v.  Levy,  44  N.  J.  Eq., 

10  N.  J.  L.,  311.  6.     This  case  was.  however,  crit- 

^sMutual  Insurance  Co.  v.  Hop-  icized  in  Dodd  v.  Lindsley.  57  N. 

l)er,  43  N.  J.  Eq..  .387.     Affirmed,  J.  Eq.,     334,  at  p.  337. 
44   N.    J.    Kq..   604.     Edwards    v.  ^"St.  Mary's  Churcli  v.  Wallace, 

McClave,  35  X.  J.  Eq..  151.     Af-  10  N.  J.  L.,  311. 
firmed,  ib.,  822.     Pratt  v.  Boody.  -"Dodson  v.  Taylor,  53  N.  J.  I,., 

55  N.  J.  Eq.,  175.  200. 


466  Probatk  Law  and  Practice. 

plaintiff, ^the  jury  shall  inquire  of  the  value  of  the  lands,  tene- 
ments or 'hereditaments  so  descended,  upon  which  judgment 
shall  be  given,  and  execution  awarded  as  aforesaid ;  but  if 
judgment  be  given  against  such  heir  or  heirs,  by  confession  of 
the  action,  without  confessing  the  assets  descended,  or  upon 
demurrer,  or  nihil  dicit,  it  shall  be  for  the  debts  and  damages, 
without  arty  writ  to  inquire  of  the  lands,  tenements  and  here- 
ditaments so  descended.*-  ■   ; 

In  an  action,  under  the  statute,  a  defendant  confesses  assets 
by  devise,  if  by  his  answer  he  neither  admits  nor  denies  them  f-^ 
and  an  averment  in  an  answer  that  defendant  had  aliened  his 
ancestor's  estate  before  action  brought  is  material  and  travers- 
able, and  a  failure  on  the  part  of  the  plaintiffs  to  reply  thereto 
is  an  admission  of  a  bona  fide  alienation.** 

Defenses. 

It  is  no  defense  to  an  action  against  heirs  or  devisees  that 
the  executors  have  made  diligent  but  unsuccessful  eff'orts  and 
attempts  to  make  sale  of  the  lands  of  which  the  ancestor  or 
devisor  died  seized  in  order  to  make  payment  of  the  debts  of 
the  decedent.*^ 

Judgment — In  General. 

The  plaintiff",  in  an  action,  under  this  statute,  in  the  absence 
of  any  alienation  of  the  lands  by  the  heirs  or  devisees  is  en- 
titled to  a  special  judgment  against  such  heirs  and  devisees  for 
the  amount  of  the  indebtedness,  to  be  levied  on  the  lands  of 
which  the  ancestor  or  devisor  dies  seized,  without  regard  to  the 
value  of  such  lands.**^ 

Form  of  Judgment. 

In  an  action  against  heirs  and  devisees,  a  creditor  of  a  de- 
ceased debtor  may  recover,  either,  (i)  (if  defendant  pleads 
properly),  a  special  judgment,  requiring  the  debt  to  be  made 

*'2  Comp.  Stat,  p.  2741,  sec.  3.  ^^Newark  Lime  &  Cement  Co. 

*3Meyers  v.  Weger,  62  N.  J.  L..  v.   Harrington,   62   N.  J.   L.,   632. 

432.  *6Ne^vark  Lime  &  Cement  Co.  \ 

•**Brinkerhoff  v.  Ransom,  57  N.  Harrington,  62  N.  J.  L.,  632. 
J.  Eq.,  312. 


Liability  of  Lands  for  Debts.  467 

only  out  of  lands  descended  or  devised,  and  which  have  not  been 
botm  fide  ahened  before  the  commencement  of  the  action  ;  or 
(2)  (if  defendant  fails  to  plead,  or  pleads  falsely  or  ini- 
properiy),  a  general  judgment,  as  if  for  the  debts  of  defendant ; 
or  (3)  (if  it  is  made  to  appear,  in  the  manner  prescribed,  that 
such  lands  have  been  aliened  before  action  brought),  a  like 
general  judgment,  but  only  for  the  value  of  the  lands.*' 

Effect  of  Judgment. 

A  judgment  against  a  residuary  devisee,  as  such,  for  a  debt 
of  his  devisor,  establishes  the  debt  as  a  just  debt  of  the  tes- 
tator.*^ ;fei;909K 

Improvements  by  Heir  on  Lands  Aliened. 

In  a  suit  on  a  bond  against  the  heir-at-law,  who  has  aliened 
descended  lands  before  suit  brought,  the  recovery  will  be  only 
for  the  value  of  the  lands  in  the  condition  in  which  they  were 
at  the  time  of  the  descent  cast.*"  The  improvements  put  upon 
the  land  by  the  heir  will  not  enter  into  the  valuation  of  such 
land,  nor  will  the  heir  be  called  on  for  the  rents  and  profits ; 
nor  on  his  side  can  he  claim  repairs,  taxes,  etc.""' 

CREDITOR  MAY  FILE  BILL  TO  IMPEACH  CONVEYANCE 
BY   DECEDENT   IN    FRAUD   OF   CREDITORS. 

In  General. 

Debts  being  liens,  by  force  of  the  statute,  on  the  lands  of  a 
decedent,  a  creditor  at  large,  whose  claim  has  been  admitted 
by  the  executor,  has  a  standing  to  file  a  creditor's  bill  to  set 
aside  conveyances  alleged  to  have  been  made  by  the  deceased 
in    fraud  of  creditors-^'   and  the  administrator  is   not  a   nec- 

*'Muldoon   V.   Moore.   55   N.  J.  hofif,  56  N.  J.  Eq.,  149.    Reversed, 

I-  410.  57  N.  J.  Eq.,  312. 

^^Morris    v.    Dorsey,    77    N.    J.  •'■Haston    v.    Castner.    31    N.   J. 

Eq.,  460.     Affirmed,  80  N.  J.  Eq..  Eq.,  697.    Ramsay  v.  VooVhees.  38 

555-  N.  J.  Eq..  282.     Jones  v.  Daven- 

^spredericks  v.   Isenman,  41   N.  port,  44  N.  J.  Eq..  33-    Rutherford 

J-  L-.  212.  V.     Alyea.     53     N.     J.     Eq..    580. 

^^opredencks  v.  Isenman,  41   N.  Reversed,  54  N.  J.  Eq.,  411.    Simp- 

J.   L.,   212.     Ransom    v.    Brinker-  son  v.  Bockius,  77  N.  J.  Eq.,  339. 


-468  Pkobati:  Law  axu  Pkactick. 

essary  party  to  such  suit ;"'-  and  a  simple  contract  creditor  may 
maintain  an  action  in  equity  to  invalidate  a  conveyance  made 
by  a  debtor  in  fraud  of  his  rights,  notwithstanding  he  is  at- 
tempting, by  legal  process,  to  collect  his  debt  of  another  per- 
son, who  is  liable  for  it.''"  So  a  creditor  of  a  decedent,  by  judg- 
ment recovered  against  him  in  another  state,  the  existence  of 
which  is  admitted  by  the  personal  representative,  is  entitled  to 
maintain  a  suit  in  the  Court  of  Chancery  to  reach  equitable  as- 
sets, viz :  moneys  given  by  the  debtor  to  his  wife  and  chil- 
dren in  fraud  of  the  judgment  creditor.'* 

Presentation  of  Claim  Necessary. 

A  creditor  at  large  of  a  deceased  person  who  has  not  pre- 
sented his  claim  to  the  personal  representative,  under  the 
statute,  cannot  maintain  a  bill  in  equity  to  set  aside  as  fraud- 
ulent a  conveyance  of  decedent's  lands. ^'■' 

Personal  Estate  Must  be   First  Exhausted. 

A  creditor  of  a  deceased  person  cannot  maintain  a  bill  to 
set  aside  as  fraudulent  a  conveyance  of  the  decedent's  lands, 
when  the  bill  shows  that  the  personal  property  of  the  deceased 
is  ample  to  pay  his  debts  i'^'"'  but  a  judgment  creditor  of  a  de- 
cedent, who  filed  exceptions  to  the  administratrix's  account 
in  the  orphans'  court,  need  not,  on  the  ground  that  he  has  not 
exhausted  his  remedy  at  law,  wait  until  those  exceptions  are 
disposed  of  there,  before  filing  a  bill  in  chancery  to  have  such 
judgment  declared  a  lien  on  lands  conveyed  away  by  decedent. 
if  such  account,  as  presented,  shows  that  all  the  assets  amount 
to  less  than  the  judgment.'^'" 

5-Munn  V.  Marsh,  38  N.  J.  Eq.,  v.   Alyea,  53  N.  J.  Eq.,   580.  and 

.410.     Affirmed,  40  N.  J.  Eq..  343.  distinguishing       Merchants       and 

•^•3Jones  V.  Davenport,  44  N.  J.  Miners  Transportation  Co.  v.  Bor- 

Eq-  33.  land.  53  N.  J.  Eq..  282. 

5*Merchains    &    Aliners    Trans-  >''«Rutherford    v.    Alyea,    54    N. 

portation  Co.  v.  Borland,  53  N.  J.  J.  Eq.,  411. 
Eq.,  282.  sTposjgj.    ^.     Knowies.   42   N.   J. 

^"Rutherford  v.  Alyea,  54  N.  J.  Eq.,   226. 
Eq.,   411.     Reversing,   Rutherford 


LiABiLiTv  OF  Lands  for  Debts.  469 

Creditors  Right  May  be  Lost  by  Laches. 

The  right  of  a  creditor  of  a  decedent  to  compel  an  executor, 
who  is  also  a  devisee,  to  execute  a  power  of  sale  of  land  con- 
tained in  the  will  for  the  purpose  of  paying  testator's  debts, 
may  be  lost  by  delay  in  enforcing  it  as  against  a  judgment 
creditor  of  the  executor  and  devisee  who  sells  the  lands  to 
satisfy  his  debts  ;■''•*  but  where  a  debtor  died  thirteen  days  after 
a  judgment  had  been  obtained  against  him  on  his  bond,  it  was 
held  that  it  was  not  laches  for  the  creditor  to  wait  until  after 
his  administratrix  had  filed  her  account  in  the  orphans'  court 
before  filing  her  bill  to  have  such  judgment  declared  a  lien 
upon  lands  conveyed  by  decedent  in  fraud  of  creditors.''' 

JUDGMENT  CREDITOR  OF  DISTRIBUTEE  MAY  REACH 
PROCEEDS  OF  SALE  OF  LANDS  IN  PARTITION. 

Statutory  Provisions. 

In  all  suits  in  partition  heretofore  or  hereafter  begun,  in  anv 
of  the  courts  of  this  state,  wherein  a  sale  of  the  lands  sought 
to  be  partitioned  is  or  shall  be  made,  and  any  judgment  or 
judgments  are  or  shall  be  obtained  against  any  of  the  dis- 
tributees, their  executors,  administrators  or  legal  representa- 
tives, at  any  time  })rior  to  the  distribution  of  the  proceeds  of 
any  such  sale,  such  judgment  creditor  or  creditors  may.  upon 
petition  filed  in  such  cause,  have  an  order,  and  such  court  is 
hereby  authorized  to  make  the  same,  directing  the  payment  of 
such  judgment  or  judgments  out  of  the  proceeds  of  the  sale 
of  such  share  or  shares  against  which  the  same  would  be  a 
lien  had  such  share  or  shares  been  owned  bv  such  debtor  or 
debtors  in  severalty.''" 

5«Hackensack   Savings   Bank  v.          ^op    j^    jggg    p    gjg^  gg^.    ^i.     3 

Morse,  46  N.  J.   Eq.,    161.  Comp.  Stat.,  p.  3907,  sec.  31.     See 

s^Foster  v.  Knowles,  42  N.  J.  also  i  Comp.  Stat.,  p.  446,  sec.  93. 
F.q.,  226. 


.  -Hi 

CHAPTER  XXVII 

SALE  OF  LANDS  FOR  PAYMENT  OF  DEBTS. 

Petition  by  Executor  or  Administrator. 

When  any  executor  or  administrator  shall  discover  or  be- 
lieve that  the  personal  estate  of  his  testator  or  intestate  is 
insufficient  to  pay  his  debts,  it  shall  be  his  duty  to  exhibit,  under 
oath,  a  true  account  of  the  personal  estate  and  debts,  as  far  as 
he  can  discover  the  same,  to  the  orphan's  court  of  the  county 
in  which  the  will  of  said  testator  was  proved,  or  letters  of 
administration  were  granted,  requesting  its  aid  in  the  premises 
by  petition,  which  petition  shall  set  forth  the  description  of 
all  land  of  which  the  said  testator  or  intestate  died  seized, 
where  the  same  is  situate,  its  character,  condition  and  value  as 
near  as  may  be.^ 

Necessity  for  Petition. 

It  seems  that  while  the  orphans"  court  has  general  jurisdic- 
tion of  the  sale  of  lands  of  decedents  to  pay  their  debts,  it  can 
exercise  that  jurisdiction  in  a  particular  case  only  upon  an 
application  in  writing  being  made  by  a  personal  representative 
of  the  decedent,  and  statutory  notice  given  to  the  heirs-at-law 
or  devisees ;  that  an  order  of  sale  not  based  upon  such  acqui- 
sition of  jurisdiction  would  be  void,  and  that  a  purchaser  of 
real  estate  under  such  order  of  sale  is  bound  to  observe  whether 
or  not  there  has  been  such  an  application ;  but  he  is  not  bound 
to  take  notice  of  any  indications  of  fraud  apparent  upon  the 
face  of  the  application.-  So  where  an  administrator,  on  an 
application  to  the  orphans'  court  for  an  order  to  sell  lands 
:o  pay  debts,  exhibited  to  said  court  only  an  account  of  the 
debts,  and  the  said  court  on  the  same  day  made  an  order  for 
the  sale  of  lands,  and  the  administrator  made  sale  and  made  ' 

^Orphans'  Court  Act,  sec.  82.    3        ^l^^sq^  ^   Acton,  57  N.  J.  Eq., 
Comp.  Stat.,  3840.  107. 


470 


Sale  of  Lands  for  Payment  of  Debts.  47.1 

report  of  the  sale  to  the  said  court,  and  on  exceptions  to  the 
report  of  sale  the  court  confirmed  the  sale  and  ordered  that  a 
deed  be  given,  it  was  held,  on  appeal,  that  the  proceedings  were 
irregular.^ 

Petition  by  Co-Executors. 

When  there  are  two  or  more  executors,  both  or  all  should 
join  in  a  petition  to  the  court  for  an  order  to  sell  their  testator's 
lands  to  pay  his  debts,  or  if  both  or  all,  do  not  join,  the  record 
should  show  why  the  executor  or  executors  not  applying  do 
not  join  in  the  application;*  but  one  of  two  executors  may 
apply  for  moneys  in  the  hands  of  the  Court  of  Chancery,  to 
pay  undisputed  claims,  when  any  sufficient  reason  appears  for 
not  joining  the  other.^ 

Form  of  Petition. 

All  applications  to  the  orphans'  court  for  the  sale  of  lands 
are  required  to  be  verified  by  the  oath  or  affirmation  of  the 
party  making  the  same.*' 

The  fact  that  the  administrator's  petition  sets  forth  that  the 
estate  is  insufficient  to  pay  the  just  debts  and  expenses,  and 
that  the  same  language  is  used  in  the  order,  while  the  statute 
empowers  the  court  to  decree  a  sale  of  lands  where  the  personal 
estate  is  not  sufficient  to  pay  debts,  will  not  render  void  the 
subsequent  proceedings.^ 

Petition  by  Judgment  Creditor. 

When  any  creditor  shall  ha\e  obtained  judgment  against  an 
executor  or  administrator,  and  the  execution  issued  on  the 
same  shall  remain  unsatisfied  in  whole  or  in  part,  for  want  of 
personal  estate  to  be  levied  on  and  sold,  and  there  is  real  estate, 
the  creditor,,  or  his  legal  representative  (if  the  executor  or 
administrator,  being  thereto  required,  shall  neglect  or  refuse 

■'McDonald  v.   Hutton,  8  N.  J.  "Orphans'  Court  Rule  13.  p.  763, 

^^■<  473-  infra. 

^Personette  v.  Johnson,  40  N.  J.  ^O'Hanlin  v.  Van  Kleeck.  20  N. 

Eq.,    173-      Hutchinson    v.    New-  J.   L..  31-50.     Affirmed,   21    N    J 

bold,  45  N.  J.  Eq.,  698.  [^.,  582. 

'^Hattersley  v.  Bissett,  52  N.  J.  t 
Eq.,  693. 


47-' 


1'kobate  Law  and  Practice. 


to  take  proceedings  to  obtain  a  sale  thereof  according  to  law, 
for  the  space  of  one  month  after  being  so  required)  may 
apply  to  the  orphans'  court  of  the  proper  county  to  order  such 
sale  to  be  made ;  and  the  said  court,  upon  due  notice  given  to 
said  executor  or  administrator  of  such  application,  shall 
examine  the  circumstances  of  the  case,  and  if  it  appears  that 
the  said  debt  or  any  part  thereof  is  unpaid,  and  the  personal 
estate  deficient  as  aforesaid,  and  no  sufficient  cause  being  shown 
to  the  contrary,  the  said  court  shall  make  such  order  to  show 
,  cause  in  the  name  of  such  executor  or  administrator  and  such 
further  proceedings  shall  be  had  as  are  prescribed  in  relation  to 
the  sale  of  real  estate  where  the  personal  estate  is  insufficient 
to  pay  debts.* 

The  relief  intended  by  this  section,  though  it  may  originate 
in  the  application  of  a  single  creditor,  is  not  intended  for'him, 
alone,  but  for  all  the  creditors ;  the  sale  is  to  be  made  for  the 
benefit,  not  merely  of  the  applicant,  but  of  all.  The  order  to 
show  cause,  like  the  order  made  at  the  instance  of  an  executor 
or  administrator,  should  be  why  so  much  should  not  be  sold  as 
will  be  suificient  to  pay,  not  singly  the  amount  due  the  appli- 
cant, but  the  debts  of  the  deceased,  or  the  residue  thereof  un- 
satisfied by  the  personal  estate ;  and  the  final  order  for  sale 
should  have  the  like  scope  and  extent." 

Notice  of  Application. 

The  notice  to  an  executor  or  administrator  of  an  applica- 
tion, by  a  creditor,  requiring  him  to  take  proceedings  to  sell 
lands  to  pay  debts,  shall  be  served  on  such  executor  or  adminis- 
trator at  least  five  days  before  the  day  therein  named  for 
making  the  said  application  ;  and  the  orphans'  court  may,  by 
citation  or  other  process,  require  the  executor  or  adminis- 
trator to  appear  before  it  and  testify  as  to  the  amount  of  the 
personal  estate  and  debts  of  the  deceased.  ^*^ 

Account  Must  be  Specific. 

Upon  an  application  for  sale  of  lands  for  debts,  the  account 
required  by  the  statute  must  be  a   full  statement  of  all  the 

''Orphans'  Court  Act,  sec.  97.    3  ^Taylor  v.  Hanford,  11  N.  J.  L.. 

Comp.  Stat.,  3847.       •  341-345. 

'"Orphans'  Court  Rule  32. 


Salic  of  Lands  tor  Payment  of  Debts.  473 

])ersonal  estate  which  the  decedent  left  at  his  death,  whether 
administered  or  unadministered,  collected  or  not  collected, 
even  if  part  has  been  destroyed,  by  fire,  or  loss,  w'ithout  the 
default  of  the  executor.  An  account  of  the  jiersonal  estate 
of  the  intestate,  on  application  to  an  orphans'  court  for  sale 
of  lands  to  pay  debts,  which  refers  only  to  an  inventory  filed 
in  another  state,  is  not  a  compliance  with  the  statute,  unless  a 
copy  of  the  inventory  is  annexed. ^^ 

Debts  Inserted  Not  Taken  Out  of  Statute  of  Limitations. 

The  insertion  of  a  debt  barred  by  the  statute  of  limitations, 
in  a  representation  of  debts  made  by  an  administrator  to  the 
orphans'  court  for  the  purpose  of  procuring  an  order  tO'  sell 
lands  to  pay  debts,  is  not  such  an  acknowledgment  as  takes 
such  debt  out  of  the  statute,  or  as  estops  the  administrator  from 
setting  up  the  bar  of  the  statute  against  it.  The  adjudication 
in  such  case  is  made  only  between  the  j^ersonal  representative 
and  the  heirs  and  devisees,  the  only  finding  being  that  it  is 
necessary  to  resort  to  the  realty  to  pay  debts. ^- 

Account  Must  be  Under  Oath. 

The  account  of  the  personal  estate  and  the  account  of  debts 
must  be  rendered  under  oath.^" 

ORDER    TO    SHOW    CAUSE. 

Court  to  Make  Order. 

Upon  the  presentation  of  the  petition  and  account,  the 
court  shall  thereupon  make  an  order  requiring  all  persons 
interested  in  such  lands,  tenements,  hereditaments  and  real 
estate,  to  appear  before  it  at  a  certain  day  and  place,  in  the 
said  order  to  be  named,  not  less  than  two  months  after  the 
day  of  making  such  order,  to  show  cause  why  so  much  of  the 
said  lands,  tenements,  hereditaments  and  real  estate  of  the 
said  testator  or  intestate  should  not  be  sold  as  will  be  sufficient 

I'Bray   v.   Ncill,   21    N.   J.   Kq.,  517,  3  Comp.  Stat.,  3842,  sec.  83a, 

343-  !'•  477.  infra. 

i2Everitt   V.   Williams,   45   N.  J.  '^Qbert  v.  Ilamniel.  18  N.  J.  L., 

T...    140.     But   sec    P.    L.    1910,   p.  73,  at  p.  77- 


474  Probate  Law  and  Practice. 

to  pay   his   debts,  or  the   residue  thereof,  as  the  case  may 
requive.^* 

Return  Day  of  Order. 

If  the  day  to  show  cause  is  less  than  two  months  from  the 
date  of  the  rule,  even  by  one  day,  the  order  to  sell  is  erroneous, 
and  must  be  set  aside  on  appeal ;  and  as  this  rule  is  the  pro- 
ceeding by  which  jurisdiction  is  acquired,  this  defect  appear- 
ing on  the  record  would  avoid  the  proceedings  collaterally.'^ 
If,  however,  the  rule  to  show  cause  is  on  its  return  day  con- 
tinued by  the  court  to  a  later  date,  in  order  that  it  may  be  served 
on  the  other  parties,  the  later  date  becomes  its  return  day.'^ 

Publication  of  Order  to  Show  Cause. 

iThe  statute  provides  that  the  order  to  show  cause  shall  be 
signed  by  the  surrogate,  and  shall  be  immediately  thereafter 
set  up  at  three  of  the  most  public  places  in  said  county  for 
six  weeks  successively,  and  be  published  at  least  once  in  each 
week  for  the  same  time  in  one  or  more  of  the  newspapers  of 
this  state,  as  the  said  court  may  direct.  '"  It  is  not  necessary 
that  the  publication  should  be  made  in  the  six  weeks  next  pre- 
ceding the  return  day  of  the  rule.^^ 

If,  on  the  return  day  of  a  rule  to  show  cause  in  the  orphans' 
court,  proctors  appear  on  behalf  of  all  the  parties  interested, 
and  admit  due  and  legal  service  of  the  rulQ,  that  is  sufficient 
evidence  of  its  proper  service. '** 

BOND  BY  HEIR-AT-LAW  FOR  PAYMENT  OF  DEBTS. 

Heir-at-Law  May  Give  Bond. 

When  any  order  to  show  cause  why  lands  and  real  estate 
should  not  be  sold  for  the  payment  of  debts  shall  be  obtained, 
the  heirs  or  devisees  of  the  intestate  or  testator,  or  any  of 
them,  may  appear  before  the  said  court  at  the  time  fixed  for 

'^Orphans'    Court   Act,   sec.  82.  1  "Orphans'  Court  Act,  sec.  82.   3 

3  Comp.  Stat.,  3840.  Comp.   Stat.,  3840. 

i-'^Bray  v.   Neill,   21    N.   J.   Kq.,  isRobison  v.  Funnan,  47  N.  J. 

343-  Eq.,  307. 

i^Robison  v.  Furman,  47  N.  J.  i^Robison  v.   Furman,  47  N.  J. 

Eq.,  307.  Eq.,  307. 


Sale  of  Lands  for  Payment  of  Debts.  475 

hearing,  and  enter  into  bond  to  the  executor  or  administrator 
in  such  sum  and  with  such  sureties  as  the  court  shall  approve, 
conditioned  for  the  payment  to  the  said  executor  or  adminis- 
trator of  so  much  money  as  may  be  required  to  pay  the  residue 
of  the  debts  of  the  testator  or  intestate  and  the  just  expenses 
and  allowances  for  the  settlement  of  the  estate  which  shall 
remain  after  the  personal  estate  shall  be  applied  thereto,  and 
to  indemnify  and  save  harmless  the  said  executor  or  adminis- 
trator, from  any  damages  or  costs  which  he  may  individually 
be  lawfully  subjected  to  by  reason  of  the  delay ;  and  thereuipon 
the  hearing  of  the  said  rule  to  show  cause  and  all  proceedings 
thereunder  shall  stand  adjourned  until  the  amount  of  such 
deficiency  shall  be  ascertained  ;  and  if  such  heir  or  devisee 
on  demand  made  of  such  heir  or  devisee  or  of  his  sureties  on 
the  said  bond,  shall  refuse  or  neglect  to  pay  to  the  executor, 
or  administrator  the  monies  required  to  pay  the  residue  of  the 
debts,  expenses  and  allowances  as  aforesaid,  the  said  orphans' 
court  shall  order  the  said  bond  to  be  prosecuted  in  any  court 
of  competent  jurisdiction,  or  proceed  to  make  such  order  for 
the  sale  of  the  lands  and  real  estate  whereof  the  testator  or 
intestate  died  seized,  as  might  have  been  made  if  the  said  bond 
had  not  been  given.-" 

Practice  on  Prosecution  of  Bond. 

Where  the  heirs  of  an  intestate,  or  the  heirs  or  devisees  of 
a  testator,  shall  have  given  bond  to  the  executor  or  adminis- 
trator, with  the  approval  of  the  court,  upon  the  return  of  the 
rule  to  show  cause  for  the  sale  of  lands  for  the  payment  of 
debts,  the  court  shall,  before  making  any  order  for  the  prosecu- 
tion of  the  bond  or  for  the  sale  of  the  lands,  require  proof  of 
the  service  of  a  notice  upon  such  heirs  or  devisees  and  their 
sureties,  if  they  be  still  living  and  resident  in  this  state,  or, 
if  dead,  on  their  executors  or  administrators,  if  any  they  have 
in  this  state,  of  the  intended  ap])lication  for  such  order.-' 

Judgment  in  Suit  on  Bond — Disposition  of  Proceeds, 

In  any  suit  U])on  an}-  bond  which  shall  be  given  under  t.he 
last  preceding  section,  if  judgment  shall  be  recovered  by  the 

^''Orphans'    Court    Act,   sec.  89.  ^lOrphans'  Court  Rule  31.' 

.?  Cnmp.    St;it..   3H44.  '■  ' 


476  Probate  Law  and  Practice. 

plaintiff,  such  judgment  shall  be  for  the  penalty  of  the  bond, 
together  with  costs  of  suit,  and  the  sheriff  or  other  officer  to 
whom  the  execution  thereon  shall  be  issued,  shall  make  the 
amount  thereof  out  of  the  property  of  the  defendants  as  in 
other  cases,  and  shall  pay  the  same  into  the  orphans'  court 
having  jurisdiction  over  the  accounts  of  such  executor  or 
administrator,  and  the  said  court  shall  apply  the  same,  or  so 
much  thereof  as  may  be  needed,  towards  the  payment  of  the 
residue  of  the  debts,  expenses  and  allowances  aforesaid,  which 
shall  remain  unpaid  after  the  personal  estate  in  the  hands  of 
the  executor  or  administrator  has  been  applied  thereto,  and 
the  costs  and  damages  of  the  executor  or  administrator,  indi- 
vidually sustained  as  aforesaid ;  and  the  surplus,  if  any,  shall 
be  repaid  to  the  defendants  from  whom  such  judgment  was 
collected. ^- 

HEARING. 
Proceedings  at  Hearing. 

The  said  orphans'  court  shall  at  the  time  and  place  mentioned 
in  said  order,  or  at  such  other  time  and  place  as  they  may  then 
appoint,  hear  and  examine  the  allegations  and  proofs  of  the 
said  executor  or  administrator  and  other  persons  interested ; 
and  if,  on  full  examination,  the  said  court  shall  find  that  the 
personal  estate  of  the  said  testator  or  intestate  is  not  sufiicient 
to  pay  his  debts,  the  said  court  may  order  the  executor  or 
administrator  to  se,ll  the  whole,  if  necessary,  of  the  lands, 
tenements,  hereditaments  and  real  estate  of  the  said  testator 
or  intestate,  for  the  payment  of  his  debts,  or  so  much  thereof 
as  will  be  sufficient  for  that  ])urpose :  and  when  a  part  only 
of  the  said  lands,  tenements,  hereditaments  and  real  estate  is 
sufficient,  such  order  shall  specify  the  part  to  be  sold ;  and  no 
more  of  the  said  lands,  tenements,  hereditaments  and  real 
estate  shall  be  sold  than  may  be  necessary  to  pay  the  residue  of 
the  said  debts  after  the  executor  or  administrator  shall  have 
applied  the  personal  estate,  or  such  part  thereof  as  may  have 
come  to  his  hands,  towards  the  payment  thereof  ;    provided 

'^Orphans'   Court   Act,   sec.   90. 
3,  Comp.  Stat.,  3844. 


Sale  of  Lands  for  Payment  of  Debts.  477 

always,  that  where  any  houses  and  lots  and  lands  are  so  circum- 
stanced that  a  part  thereof  cannot  be  sold  without  manifest 
prejudice  to  the  heirs  or  devisees,  the  said  court  may,  in  its 
discretion,  order  the  whole  or  a  greater  part  than  is  necessary 
to  pay  such  debts  to  be  sold ;  if  the  land  lies  in  more  than 
one  county,  the  court  in  such  order  or  decree  sh^ll  further 
direct  the  executor  or  administrator  to  apply  to  the  orphans' 
court  of  any  other  count}-  wherein  land  of  such  testator  or 
intestate  is  situate  for  an  order  to  sell  said  land  or  parcels 
thereof  lying  in  such  other  county,  which  order  shall  specify 
the  particular  lots  to  be  sold  and  the  county  wherein  they  sev- 
erally lie.-'* 

Testimony  Taken. 

Upon  the  return  of  a  rule  to  show  cause  why  lands  should 
not  be  sold  for  the  payment  of  debts,  the  statute  provides  that 
the  court  shall  "hear  and  determine  the  allegations  and  proofs 
of  the  executor  or  administrator  and  other  persons  inter- 
ested ;"  and  the  practice  is  to  take  oral  testimony  in  open  court 
to  prove  all  of  the  allegations  contained  in  the  petition  and 
account.  Usually  the  testimony  of  the  executor  or  adminis- 
trator is  sufficient,  but  this  should  be  supplemented  by  the 
testimony  of  other  persons,  when  necessary. 

Court  May  Determine  Validity  of  Claims. 

Upon  application  being  made  to  the  prerogative  court,  or  any 
orphans'  court,  for  an  order  to  sell  lands  for  the  payment  of 
debts  of  any  decedent,  the  court  shall  have  jurisdiction  to 
consider  and  determine  the  validity  of  any  claim  or  debt  in- 
cluded by  the  applicant  in  the  schedule  or  statement  of  the 
debts  of  any  such  decedent :  and  the  determination  and  decree 
of  said  court  shall  be  conclusive  in  such  proceeding  for  sale 
of  lands,  but  not  otherwise;  pro\i(led,  objection  in  writing  is 
filed  by  the  executor  or  administrator  of  the  deceased  or 
by  any  person  interested  in  said  lands  to  the  validity  of  any 
such  claim  or  debt  and  the  claimant  has  had  ten  days'  notice 
of  the  filing  of  such  objection;    and  provided  further,  if  any 

-^Orphans'  Court  Act,  sec.  83.  3 
Comp.   Stat..  3841. 


478  Probate  Law  and  Practick. 

claim  or  debt  be  disallowed  in  such  proceeding  and  a  judg- 
ment be  thereafter  obtained  thereon  in  any  court  of  competent 
jurisdiction,  the  same  shall  thereafter  be  duly  allowed  and 
received.-^ 

Prior  to  the  enactment  of  this  statute,  it  was  held  that  the 
orphans'  court  had  no  power,  except  in  cases  of  insolvent 
estates  of  decedents,  to  settle  disputed  claims  against  the  estate, 
to  determine  who  are  creditors  and  who  are  not,  or  to  adjust  the 
amount  due  to-  such  as  are.^^ 

Claim  Disputed  by  Co-Executor. 

The  orphans'  court  has  no  power  to  allow  one  executor  the 
amount  of  a  debt  which  he  insists  is  due  him  from  the  testator's 
estate,  or  of  a  fee  which  he  claims  to  have  paid  counsel  for 
advice  in  regard  to  the  estate,  if  his  co-executor  dispute  their 
payment.'^® 

Court  May  Not  Try  Title  to  Lands. 

The  orphans'  court  cannot  try  title  to  lands,  under  proceed- 
ings for  sale  thereof  for  payment  of  debts,  ^^  and  neither  an 
order  for  sale,  nor  a  sale  under  it,  will  destroy  or  disturb 
previous  conveyances  legally  made  ;-^  but  while  the  court  may 
not  pass  upon  the  question  of  title  as  between  a  decedent  and 
a  person  claiming  against  him,  yet  it  may  ascertain  of  what 
real  estate  the  decedent  died  seized,  so  fa*r  as  necessary  to 
enable  it  to  indicate  in  the  order  what  the  administrator  is 
ordered  to  sell.-^ 

'*P.   L.   1910,  p.  517.     3   Comp.  ^f'Middleton  v.  Aliddleton,  35  N. 

Stat.,  3842,   sec.  83a.  J.    Eq.,    115.      See    also    "Actions 

25Miller   v.   Pettit,    16   N.   J.   L.,  between  Co-Executors,"  p.  421,  in- 

421.    Vreeland  v.  Vreeland,  16  N.  fra. 

J.   Eq.,   512.      Smith   v.   Smith,   27  27Li(](jei  y    McVickar,   11   N.  J. 

N.  J.  Eq.,  445.    Middleton  v.  Mid-  L.,  44.     Swackhamer  v.  Kline,  25 

dleton,  35   N.  J.  Eq.,    115.      Part-  N.  J.  Eq.,  503. 

ridge  v.  Partridge,  46  N.  J.  Eq.,  -*Liddel    v.    McVickar,    11    N. 

434.     Affirmed,  47  N.  J.  Eq.,  601.  J.  L.,  44. 

In   re   Pitcher,  61   N.  J.   Eq.,"  614.  -^Rohison   v.   Furman,  47  N.  J. 

Doll   V.   Cash,   61    N.   J.   Eq.,    108.  Eq.,  307. 
Godfrey's  Case,  72  N.  J.  Eq..  351. 


Sai.k  of  Lands  for  I'avment  of  Debts.  479 

Adjournment  of  Hearing. 

Though  section  83  of  the  Orphans'  Court  Act,^°  provides  that 
at  the  time  and  place  mentioned  for  the  hearing  of  the  rule, 
or  at  such  other  time  and  place  as  the  court  may  then  appoint, 
it  shall  hear  and  adjudicate  upon  the  matter,  it  cannot  be 
reasonably  insisted  that  it  was  the  intention  of  the  legislature 
to  confine  the  power  of  postponement  to  a'  single  adjourn- 
ment, according  to  the  literal  terms  of  the  act.  The  intention 
was  to  provide  that  at  the  time  tixed  in  the  rule,  or  at  such 
time  thereafter  as  should  be  fixed  by  adjournment,  whether 
one  or  more,  the  hearing  should  take  place ;  but  an  order  for 
adjournment  may,  on  due  notice,  be  revoked,  and  the  hearing 
brought  on.^^  When  a  rule  to  show  cause  is  on  its  return  day 
continued  by  the  court  to  a  later  date,  in  order  that  it  may  be 
served  on  other  parties,  the  latter  date  becomes  its  return  day.'- 

JURISDICTION   OF   CHANCERY. 

Jurisdiction  to  Order  Sale  of  Lands  for  Payment  of  Debts. 

It  has  been  held  that  a  creditor  with  an  established  claim 
against  an  estate  may  come  into  a  court  of  equity  against  an 
executor  for  discovery,  or  distribution  of  assets,  and  that  be 
may  have  a  bill  against  heirs  and  devisees  to  subject  real  estate 
decended  and  devised,  there  being  a  deficiency  of  personal 
assets,  to  the  payment  of  decedent's  debts  f^  but  this  doctrine 
was  criticized  in  Dodd  v.  L'mdsley.^*  Where  a  bill  sought  to 
subject  real  estate,  which  decedent's  will  ordered  to  be  con- 
verted into  money  by  the  executors  and  distributed  to  legatees, 
to  the  payment  of  its  proper  proportion  of  the  complainant's 
claim,  and  also  alleged  that  the  executors  were  intent  on  pre- 
venting recovery  by  complainants,  it  was  held  that  it  is  fully 
established  that  such  a  suit  is  within  the  jurisdiction  of  the 
Court  of  Chancery,  even  though  complainant's  claim  may  not 

5°Page  476.  supra.  •''••Houston  v.  Levy,  44  N.  J.  Kq.. 

^'Parker  v.  Reynolds,  32  N.  J.       6. 
'^-q-  290.  ■■■'■.7  N.  T.  F.q..  334,  at  p.  ^T^y. 

32Robison    \-.   Furman.   47   N.  J. 

i-q..  307. 

32 


4801  Pkouate  Law  and  Practice. 

be  establislied  at  law  ;"^  but  a  creditor ;who  bas  failed  t^pffe'sbnt 
his.daim  to  the  executors  within  the  time  limited  biy  the 
orphans'  court  cannot  apply  to  the  Court  of  Chancery  to  have 
cert^jijti  bequests  and  devises  subjected  to  his  claim,  it;  appear- 
ing ip  his  bill  that  on  final  settlement  there  was  a  large  residue 
left  in  the  hands  of  the  executors ;^**  and  on  a  bill  in. equity 
brought  against  the  administrator  and  the  heir-at-law,  for  the 
sole  benefit  of  a  single  creditor  of  the  estate,  whpge  claim  has 
not  been  admitted  by  the  administrator,  nor  established  against 
him  by  judgment  or  decree,  the  court  has  no  j)ower  to  render 
a  decree  against  the  heirs  charging  the  debt  on  the  lands,  or 
directing  the  sale  thereof  for  its  payment."' 

PROCEEDINGS  WHERE  LANDS  LIE  IN  DIFFERENT 
COUNTIES. 

Proceedings  in  Case  Lands  Lie  in  Two  Counties. 

A  sale  and  conveyance  made  under  an  order  of  the  orphans' 
court  of  the  county  in  which  letters  of  administration  were 
grai^ted,  and  confirmed  by  said  court,  will  not  pass  title  to  the 
intestate's  lands  situate  in  another  county.  The  proceedings 
provided  for  in  the  statute  must  be  strictly  complied  with.^* 

Statutory  Provisions. 

The  proper  practice,  where  lands  lie  in  two  counties,  is  to 
include  in  the  petition,  order  to  show  cause,  and  order  for  sale, 
all  of  the  lands  of  decedent,  irrespective  as  to  the  county  in 
which  they  may  lie ;  and  the  statute  provides  that  the  orphans' 
coiirt  of  any  county  of  this  state,  upon  the  production  of  a 
certified  copy  of  such  an  order,  directing  the  sale  of  lands  lying 
therein,  shall  order  the  sale  and  conveyance  of  said  lands  and 
real  jiroperty  in  pursuance  of  the  original  order."'' 

3''Dodson    V.    Sevars.    52    N.    J.  ^spjopkins  v.  Meir,  19  Atl.  Rep.. 

Eq.,  611.     Affirmed.  53  N.  J.  Eq.,  264.  See  Orphans'  Court  Act.  sees. 

347-  84.  86,  and  92.    3  Comp.  Stat.,  pp. 

aepodson  v.  Sevars.  53  N.  J.  Eq..  384^'.  3843.  and  3S45.  tliis  p^ge  and 

347.  1).  481.  infra. 

s^Edwards  v.  McClave.  55  N.  J.  '"Orphans'   Court   Act,  sec!  84; 

Hq.,   151.  3  Comp.  Stat..  3842. 


Sale  of  Lands  for  Payment  of  Debts.  48^1 

Further  Proceedings  in  Case  Lands  Lie  in  Two  Counties.. 

-  When  sale  of  any  land  has  been  made  in  pursuance  of  sec- 
tion eighty-four,*"  an  authenticated  copy  of  the  report  of  sale, 
and  the  order  confirming  such  sale,  shall  be  recorded  and 
filed  in  the  office  of  the  surrogate  of  the  county  where  the  will 
was  pro\ed  or  administration  was  granted,  and  the  executor 
or  administrator  shall  account  for  the  proceeds  of  said  sale 
or  sales  to  the  orphans'  court  making  the  original  order.*' 

Proceedings  Where  Lands  Lie  in  More  Than  One  County 
and  are  Contiguous. 

Wlien  any  executor  or  administrator  has  been  ordered  to- 
make  sale  of  lands  for  payment  of  debts,  and  the  lands  to  be 
sold  are  contiguous  and  situate  in  more  than  one  county,  and 
are  so  situated  that,  in  the  judgment  of  such  executor  or 
administrator,  the  same  should  be  sold  together  and  in  one 
parcel  or  in  several  parcels,  some,  or  all,  of  which  may  com- 
prise as  one  parcel  contiguous  lands  situate  in  more  than  one 
county,  such  executor  or  administrator  may,  in  the  exercise 
of  his  discretion,  make  sale  of  such  lands  as  one  parcel,  or 
in  several  parcels,  some  or  all  of  which  may  comprise  as  one 
parcel  contiguous  lands  situate  in  more  than  one  county ;  and 
after  such  sale  or  sales  report  the  same  to  the  orphans'  courts 
of  the  respective  counties  in  which  said  lands  lie  for  approval 
and  confirmation  ;  and,  if  the  sale  be  approved,  the  same  shall 
be  confirmed,  and  the  said  administrator  or  administrators, 
executor  or  executors,  and  the  survivor  or  survivors  of  them, 
shall  execute  and  deliver  conveyances  to  the  purchaser  or 
jjurchasers  for  the  lands  so  sold,  upon  compliance  with  the 
conditions  of  sale.*- 

Form  of  Application. 

Where  application  for  the  sale  of  lands  to  pay  debts  shall 
be  made  to  the  orphans'  court  of  any  county  other  than  the 
county  in  which  letters  of  administrator  or  prol)ate  of  the 
will   shall   have  been   granted,  the  executor  or  administrator 

■•"Page  480,  supra.  •'-Ori)hans'   Court   Act.   sec.  92"; 

*' Orphans'   Court   Act,   sec.  86;      3   Comp.   Stat.,  3845. 
3  Comp.  Stat.,  3843. 


482  Probate  Law  and  Practice. 

making  such  application  shall  present  to  the  said  orphans' 
court  a  certified  copy  of  the  will  and  of  the  letters  testamentary 
issued  thereon,  or  of  the  letters  of  administration,  as  the  case 
may  require,  and  also  a  certified  copy  of  the  inventory  of  the 
personal  estate  of  the  testator  or  intestate ;  which  copy  of 
letters  testamentary  and  will  and  inventory,  or  of  letters  of 
administration  and  inventory,  shall  be  filed  by  the  surrogate  of 
the  county  in  which  such  application  is  made.  ^" 

WHEN  LANDS  WILL   BE  ORDERED   SOLD. 
Personalty  Must  First  be  Exhausted. ''-»"af5f 

Before  an  orphans'  court  may  make  an  order  for  the  sale 
of  lands  of  a.  testator  to  pay  debts  which  his  personal  estate 
is  insufficient  to  pay,  the  executor  who  seeks  the  order  must 
have  applied  all  the  personal  estate  to  their  payment,  including 
specific  legacies.  It  is  true  that  the  rule  is  that  for  debts  of 
■a.  testator  remaining  undischarged,  after  the  application  of  his 
estate  not  specifically  given,  in  the  absence  of  lands  not  specific- 
ally devised  specific  legacies  and  lands  specifically  devised  must 
contribute  ratably."** 

Lands  will  not  be  ordered  sold  to  pay  debts,  where  it  appears 
that  sufficient  personalty  came  to  the  hands  of  the  executors  to 
enable  them  to  make  such  payment;  and  the  personalty  will 
not  be  exonerated  from  this  primary  liability  merely  because 
the  testator  has  evinced  a  purpose  to  charge  his  debts  upon  his 
real  estate,  unless  he  has  clearly  indicated  an  intention  to 
discharge  his  personalty  therefrom  ;*^  but  to  obtain  an  order 
for  ^ale,  it  is  not  necessary  that  all  the  personal  estate  should 
be  collected  and  applied  in  payment  of  debts,  but  only  that  it, 
should  be  ascertained  by  the  court  upon  examination  that  the 
personal  estate  is  insufficient,  and  that  so  much  thereof  as  has 
come  to  the  hands  of  the  executor  or  administrator  has  been 
applied.*" 

^"■Orphans'  Court  Rule  30.  <''Ford  v.  West'ervelt,  55  N.  J. 

**Thomas  v.  Thomas,   17  N.  J.  Eq.,  485;    and   see  "Assets   from 

Eq.,  356.     Langsiroth  v.  Golding,  Which    Debts    Are   to    Be    Paid," 

41  N.  J.  Eq.,  49.    Wiggins  v.  Wig-  p.  545.  infra. 

gins,  65   N.  J.  Eq.,  417,   and  see  ^^gtate  v.  Conover,  9  N.  J.  L., 

■"Lands  Devised,"  page  486,  infra.  ,^,18-342.     Stiers  v.  Stiers,  20  N.  J. 

L..  52. 


Sale  of  Lands  for  Payment  of  Debts.  483 

The  jurisdiction  of  the  orphans'  court  to  order  a  sale  of  lands 
to  pay  debts  does  not  invest  that  court  with  power  to  determine 
and  enforce  the  equities  of  contribution  between  the  devisees 
and  legatees  of  a  specific  bequest.  By  the  statute,  lands  are 
to  be  sold  only  for  debts  remaining  undischarged  after  the 
application  of  the  personal  estate.  If  a  specific  legacy  is  thereby 
exhausted,  the  legatee  may  doubtless  enforce  his  equity  to 
require  the  devisees  to  aid  in  repairing  his  loss  by  making 
payment  of  their  proper  contribution  thereto.^' 

Where  Estate  is  Insolvent. 

In  Godfrey's  Casc*^,  it  was  held  that,  when  an  application 
is  made  to  an  orphans'  court  for  an  order  directing  an  adminis- 
trator to  sell  lands  of  his  intestate  for  the  payment  of  debts, 
and  upon  the  return  of  the  rule  to  show  cause  thereon  it  appears 
that  the  personal  and  real  estate  of  intestate  are  and  are  known 
to  the  administrator  to  be  insufficient  to  satisfy  the  debts 
claimed,  the  orphans'  court  should  decline  to  make  the  order 
of  sale,  because  the  application  should  have  been  made  under 
the  section  of  the  act  relating  to  insolvent  estates.  The  de- 
cision of  this  case  was  based  upon  the  well  settled  rule  that, 
except  in  the  case  of  an  insolvent  estate,  the  heir  at  law  is 
powerless  to  contest  any  claim  reported  by  the  administrator, 
except  by  giving  a  bond  with  security  under  the  provisions 
<jf  section  89.*°  Inasmuch,  however,  as  the  act  of  1910''". 
confers  upon  the  orphans'  court  jurisdiction  to  try  disputed 
claims,  it  would  seem  that  much  of  the  above  reasoning  would 
fall.  There  can,  however,  be  no  doubt  that  in  the  case  of  an 
insolvent  estate  insolvency  proceedings  should  be  resorted  to. 
rather  than  a  proceeding  for  the  sale  of  lands  to  pay  debts. 

Court    Must   Ascertain    That   Personal   Estate    Has   Been 
Exhausted. 

It  is  the  duty  of  the  orphans'  court,  before  making  the  order 
for   sale,   to  examine  and   ascertain   that  the   personal  estate 

^'Whitaker's  Case,  72  N.  J.  Eq.,  "Page  475,  supra. 

362.  5op.  L.   1910,   p.  517;    3   Conip. 

*'^72  N.  J.  Eq.,  35.  Stat.,  p.  3842,  sec.  83:1.  jiasc  47«. 

siipra. 


484  Probatic  Law  and  Practice. 

which  came  to  the  hands  of  the  executor  or  admmistrator  has 
been  applied  by  him  in  the  course  of  administration;^^  and  a 
decree  of  the  orphans'  court  for  the  sale  of  the  real  estate  of 
an  intestate,  made  without  evidence  of  the  insufficiency  of  the 
personal  estate  for  the  payment  of  the  debts  of  the  intestate, 
or  that  such  part  thereof  as  has  come  to  the  hands  of  the 
administrator  has  been  applied  for  that  purpose,  is  erroneous.^- 

DEBTS  FOR  WHICH  LANpS  WILL  BE  ORDERED  SOLD. 

In  General, 

The  orphans'  court  is  as  has  been  seen,  authorized  by  statute 
to  order  a  sale  of  lands  of  a  decedent  for  the  payment  of  his 
debts,  when  the  personalty  is  insufficient  for  that  purpose.  The 
word  '"debts,"  as  used  in  the  statute,  refers  to  the  debts  of  the 
deceased  alone ;  and  therefore  the  court  may  not  order  a  sale 
of  the  real  estate  of  a  testator  to  pay  the  debts  and  funeral 
expenses  of  his  wife,  notwithstanding  his  will  devises  estate 
to  his  wife  for  life,  and  at  her  death,  after  the  payment  of 
the  wife's  debts  and  funeral  expenses,  to  a  daughter^^  nor  has 
the  court  jurisdiction  to  order  the  sale  of  lands  of  a  decedent 
to  pay  a  single  debt;  and  decree  for  the  sale  of  real  estate  to 
pay  debts  is  erroneous,  if  the  order  to  show  cause  why  the 
real  estate  should  not  be  sold  and  the  order  for  sale  respect 
the  payment  of  a  single  debt,  and  not  the  debts  generally  of  the 
intestate.''^ 

The  orphans'  court  has  no  jurisdiction  to  order  lands  sold 
for  the  payment  of  legacies."'^ 

Debts  Due  to  Accoimtant  for  Advances  to  Estate. 

If  an  executor  pays  the  debts  and  funeral  expenses  of  hi^ 
testator,  for  the  discharge  of  which  there  is  no  personal  estate, 

•'^State  V.  Conover,  9  N.  J.  L.,  Eq.,  460.     Affirmed.  80  N.  J.  Eq., 

338.     Stiers  V.  Stiers,  20  N.  J.  L.,  555. 

52.     Bray  v.  Neill,  21   N.  J.  Eq.,  5*Taylor   v.   Hanford.    11    N.  J. 

343.    Robison  v.  Furman,  47  N.  J.  L.,  341. 

Eq.,  307,  at  p.  308.  55si^illj„an  v.  Van  Pelt,   i   N.  J. 

'^^Taylor  v.  Hanford,    11    N.  J.  Eq..  511.    Morris  v.  Dorsey,  77  N 

L-  341.  J.    Eq.,   460.     Affirmed,   80    N,    .1 

5'Morris    v.    Dorsey.    "^-j    N.    J.  Eq..  555. 


Sale  of  Lands  Fe:)R  Payment  of  Debts.  485 

an  order  for  sale  of  lands  maybe  made  to  reimburse  him  ;^''  but 
where  the  administrator,  has  himself,  as  heir,  sold  and  con- 
veyed his  share  of  the  real  estate,  an  order  for  sale  of  tiiat 
share  to  pay  a  debt  due  him,  or  to  reimburse  moneys  advanced 
by  him,  ought  not  afterwards  to  be  made;'  as  his  is  the:  hand 
both  to  pay  and  to  receive,  the  portion  of  tlie  dfebts  with  which 
his  share  of  the  land  might  otherwise  be  chargeable  ought  f6  be 
extinguished."''  i-:  ■•■;.; 

Expenses  of  Administration. 

A  testator's  lands  may  be  sold  to  pay  costs  and  expenses. 9f 
settling  his  estate,  including  executor's  commissions  and  counsel 
fees,  where  the  personal  estate  is  insufificicnt  to  pav  them.^'' 

Collateral  Inheritance  Tax. 

Executors,  administrators  and  trustees  have  full  powpr  to 
sell  so  much  of  the  property  of  their  decedent  as  will  einabie 
them  to  pay  any  inheritance  tax  assessed  against  the  estate, 
in  the  same  manner  as  they  are  authorized  by  law  to  do  for.th& 
l)ayment  of  debts  of  their  testators  and  intestates.^" 

Debts  Barred  by  Statute  of  Limitations. 

Where  a  claim  is  barred  by  the  statute  of  limitations  at  the 
time  of  testator's  death,  and  the  debt  is  to  be  satisfied  out  of 
the  real  estate,  both  the  executors  and  devisees  have  a  right 
to  avail  themselves  of  the  statute  in  defense,  and  no  acknowl- 
edgment of  the  personal  representatives  will  bind  tlie  lands  in 
the  hands  of  a  devisee ;  but  where  a  claim  is  not  barred  Ijy 
the  statute  at  the  testator's  death,  though  no  proceedings  are 
had  against  the  heir  or  devisee  within  six  years  from  the  time 
the  action  accrued,  the  claim  will  not  therefore  be  considered 
as  barred  by  the  statute,  but  may  be  paid  out  of  the  proceeds 
of  the  sale  of  the  land  when  sold  for  the  payment  of  debts.*'" 

■•''Liddel  V.  McVickar,  ii  N.  J.  ^s^    Comp.    Stat.,    p.    5306,    sec. 

L.,  44.     Clayton  v.  Somers,  27  N.  544. 

J.  Eq.,  230.  "oStark  v.  Hunton,  3  N.  J.  Eq., 

•''^Liddel  v.  McVickar,   11   N.J.  300.     For   power   of   executor   to 

I^v  44-  pay    from    the    personalty    claims 

^"Personette  v.  Johnson.  40  N.  barred   by   statute   of   limitations, 

J.  Eq.,  173.  see  "Deltts  Barred  by  Limitation," 

p.  526.  infra. 


486  Probate  Law  and  Practice. 

WHAT  LANDS  MAY  BE  SOLD. 

Lands  Devised. 

The  statute  makes  all  of  the  lands  of  a  decedent  liable  for 
his  debts,  including  lands  devised;  hence,  when  a  decedent 
leaves  debts,  and  the  residuary  fund  has  been  exhausted,  there 
being  neither  lands  descended  nor  land  charged  with  debts,  the 
general  rule  is  that  specific  legacies  and  the  land  devised  must 
contribute  ratably  to  discharge  such  debts. "^  So  where  a  testa- 
tor directs  the  payment  of  his  debts,  and  specifically  devises 
portions  of  his  real  estate,  and  then  gives  and  devises  all  the 
rest  and  residue  of  his  real  and  personal  estate  to  two  of  his 
children,  one  of  whom  dies  in  his  lifetime,  so  that  the  devise 
lapsed  and  descended  to  the  heir-at-law,  it  not  appearing  that 
testator  left  any  personal  estate,  all  of  the  lands  included  in  said 
residuary  devise,  as  well  those  taken  by  the  surviving  devisee 
as  those  which  descend  in  consequence  of  the  death  of  the 
other  devisee,  are  equally  liable  to  the  discharge  of  the  debts, 
and  of  the  costs  and  expenses  incurred  in  the  settlement  of 
the  estate  ;*'-  and  so  where  an  executrix,  to  whom  lands  are 
devised  for  a  certain  time,  neglects  to  apply  for  an  order  of  sale 
to  pay  debts  until  her  estate  expires,  and  in  the  meantime  enjoys 
the  estate  and  takes  the  rents  and  profits  from  it,  she  must 
account  for  the  value  of  the  estate  so  enjoyed,  and  deduct  its 
fair  proportion  of  the  debts  in  ascertaining  the  amount  to  be 
raised  from  the  other  devisees.*^^ 

When  the  applicant  has  received  and  sold  lands  devised  by 
the  testator,  and  which  ought  to  contribute  to  the  payment  of 
debts,  it  is  error  to  order  lands  of  other  devisees  to  be  sold  for 
the  payment  of  debts  paid  by  the  applicant,  without  deducting 
the  proportion  the  applicant  ought  to  pay*'*,  but  where  de- 
scended and  devised  lands  are  sold  for  the  payment  of  debts, 
and  personal  property  afterwards  comes  into  the  hands  of  the 
executor,  it  forms  a  fund  representing  the  devised  lands  which 

81  Thomas  v.  Thomas,   17  N.  J.  63Bray   v.   Neill,   21    N.   J.   Eq., 

Eq.,  356.     Langstroth  v.  Golding,  343. 

41   N.  J.  Eq.,  49-55.  6*Bray  v.   Neill,   21    N.   J.   Eq., 

*-Hattersley  v.  Bissett.  52  N.  J.  343. 
Eq.,  693;    and  see  Martin  v.  Cul- 
len,  30  N.  J.  Eq.,  426. 


Sale  of  Lands  for  Pavment  of  Debts.  487 

have  been  sold,  and  the  devisee  of  such  lands  is  entitled  to 
subrogation.''^ 

Lands  Devised  in  Lieu  of  Dower. 

Lands  devised  to  a  widow  in  lieu  of  dower,  if  accepted  by 
her,  are  liable  to  their  proportion  of  the  debts  of  the  testator.^*^ 

Lands  Escheated. 

The  orphans'  court  has  no  power  to  order  lands,  which  have 
been  escheated  to  the  state,  to  be  sold  for  payment  of  debts 
of  their  former  owner. ''^ 

ORDER  FOR  SALE. 

Order  Must  Specify  Sum  to  be  Raised. 

The  court  should  ascertain,  as  nearly  as  may  be,  the  extent 
of  the  deficiency  and  fix  and  express  in  the  order  for  sale  the 
sum  necessary  to  be  raised  ;''*  but  if  an  appeal  be  taken 
from  a  decree  of  the  orphans'  court  on  that  ground,  the  Pre- 
rogative Court  will  correct  the  order  in  that  particular,  when- 
ever the  proceedings  removed  by  the  appeal  show  the  facts 
which  will  enable  the  court  to  do  so.*^" 

Court  May  Direct  Method  of  Selling. 

Comprised  within  the  duty  of  the  orphans'  court  in  the 
premises  is  an  obligation  to  have  the  lands  so  set  up  for  sale 
that  they  may  be  sold  on  the  most  advantageous  terms,  and  that 
no  more  of  the  lands  of  the  deceased  shall  be  sold  than  is  neces- 
sary to  provide  a  fund  for  the  payment  of  debts.'^"  The  princi- 
ple that  justifies  an  executor,  in  selling  under  a  power  con-* 
tained  in  a  will,  in  dividing  the  iM-oi)erty  into  lots,  laying  streets 

"•"'Graham  v.  Dickinson,  3  Barb.  Robison  v.  Furman.  47  N.  J.  Kq., 

Ch.,  169.  307. 

^^Bray   v.    Neill,   21    N.   J.    Eq.,  ''"Rubi.son   v.   Furman,  47   N.   J. 

343-  Fq..   307.      For    statute   validating 

""O'Hanlin    v.    Van    Klecck,    20  sales  where  order  omitted  to  spe- 

N.  J.   L.,   31.     .Affirmed,  21    X.   J.  cify  the  amount  of  the  deficiency 

L.,  582.  to  be  raised,  see  2  Gen.   Stat.,  p. 

"^Stiers  V.   Stiers,  20  N.  J.   L.,  1435.  sec.  38. 

52.     Bray  v.  Neill,  21    N.  J.  luj.,  'oHohokus  v.  ]"',rie  Railroad  Co.. 

343.    F'urman  v.  Furman.  45  N.  J.  65  N.  J.  L.,  353. 
Eq.,    744.       Reversed,     suli    nom.. 


4^88  Probate  Law  and  Practice. 

through  it  and  creating  easements  of  a  right  of  way  in  the 
several  purchasers,  when  the  e'state  will  he  benefited  by  such  a 
disposition  of  the  property,  applies  equally  to  the  orphans' 
court  in  the  exercise  of  its  discretion.  Indeed,  it  would  be 
difficult  on  any  principle  to  give  full  scope  to  the  statutory 
provisions  which  exact'  from  the  orphans'  court  the  duty  of 
seeing  to  it  that  no  more  of  ihe  lands  of  the  deceased  shall  be 
sold  than  is  necessary  to  pay  the  debts,  unless  a  discretion  be 
confided  to  the  court  of  selling  the  lands  in  the  most  advantage- 
ous manner-in  parcels,  or  in  lots,  with  streets  and  avenues 
laid  out,  if  a  sale  in  that  manner  will  be  most  advantageous.  In 
exercising  its  powers,  the  court  has  a  duty  to  heirs  and  devisees 
as  well  as  to  creditors,  and  an  obligation  to  perform  those 
duties  in  such  a  manner  as  will  conserve  the  interest  of  bot1i.'^ 

Order  Must  Specify  Portion  of  Lands  to  Be  Sold. 

It  is,  as  has  been  said,  the  duty  of  the  orphans"  court  making 
an  order  for  the  sale  of  real  estate  to  ascertain  and  decide 
whether  a  sale  of  the  whole  of  the  real  estate  is  necessary,  or 
whether  the  sale  of  a  part  will  suffice,  and,  if  it  finds  that  the 
sale  of  a  part  only  will  suffice,  and  ought  to  be  made,  then  to 
ascertain  and  decide  what  part  ought  in  legal  propriety  and 
sound  discretion  to  be  sold.'^-  Thus,  where  an  executor  re- 
ported to  the  orphans'  court  that  the  amount  of  claims  presented 
to  him  exceeded  the  amount  of  the  personal  estate  which  had 
come  to  his  hands  by  $1,500,  and  also  represented  that  testator 
left  real  estate  consisting  of  three  houses  valued  at  $5,000, 
each  of  which  houses  had  been  devised  by  the  testator  to  a 
different  person,  and  it  further  appeared  that  the  sale  of  one 
of  these  houses  would  have  realized  assets  sufficient  to  liquidate 
all  of  the  debts  of  the  testator,  but  the  orphans'  court,  ordered 
the  executor  to  sell  all  three  of  the  houses,  it  was  held,  on  ap- 
peal, that  while  the  equities  of  the  case  required  the  sale  of  all 
three  houses,  upon  the  theory  that  all  of  the  real  estate  de- 
vised should  contribute  ratably  to  the  payments  of  debts,  the 
statute  gives  no  authority  to  the  orphans'  court  to  work  out 

^'Hohokus     V.     Erie     Railroad      L.,  44,  at  p.  50.     State  v.  Conover. 

Co.,  65  N.  J.  L.,  353.  9    N.    J.    L..    338.      Hohokus    v. 

'^Liddel  V.  McVickar,  u  N.  J.      Erie  R:  R.  Co.,  65  N.  J.  L.,  353. 


Sale  of  Lands  fok  Pav.mknt  of  Debts.  489 

those  equities,  or  to  direct  the  sale  of  all  the  real  estate  for  that 
purpose,  but  oti  the  contrary,  expressly  directs  that  no  more 
thereof  shall  be  sold  than  is  sufficient  to  pa\-  the  debts:  .that 
while  it  is  true  that  the  last  clause  of  section  95' ■  provides  that 
any  devisee,  Avhose  lands  devised  ha\e  been  sold  for  the  -pay- 
ment of  debts  of  his  devisor,  may  compel  others  holding  unokr 
the  testator  to  contribute  in  proportion  to  their  respective  inter- 
ests, so  as  to  oc|ualize  the  burden  of  loss,  still  it  is  impossible 
to  find  in  this  enactment  any  jurisdiction  conferred  upon  the 
orphans'  court  to  entertain  actions  to  compel  such  contribu- 
tions; and  that  if  any  such  jurisdiction  was  intended,  it  ob- 
viously gives  no  support  to  this  clause  of  the  order,  the  right 
to  contribution  protected  thereby  being  a  right  in  a  devisee 
whose  lands  have  been  sold  and  the  act  giving  no  c^loirof 
power  to  adjust  the  equities  by  a  sale  of  the  land.^*    ■   -"'   "'''■ 

\\'hile  a  decree  of  the  orphans'  court  ordering  an  admmis- 
trator  to  sell  the  whole  or  so  much  of  the  lands  of  the  intestate 
as  will  be  sufficient  to  pay  the  debts  will  be  reversed  as  'er- 
roneous and  unlawful,  such  decree  cannot  be  impeached  col- 
laterally, or  treated  as  a  nullity  :'•''  and  while  it  is  irregular  for 
the  orphans"  court,  on  an  order  for  the  sale  of  lands  to  pay 
debts,  to  order  in  gross  that  the  whole  of  the  real  estate  of  the 
decedent  be  sold,  it  is  not  such  an  irregularity  as  will  avoid  the 
sale  when  actually  completed.''' 

Sale  of  Lands  Free  from  Judgment. 

Whenever  a  judgment  creditor  or  holder  of  any  judgment 
against  the  real  estate  of  any  testator  or  intestate  shall  have 
filed  or  shall  hereafter  file  a  claim  uixin  said  judgment  with 
the  executor  or  administrator  of  said  testator  or  intestate 
and  it  shall  aj)pear  to  the  orphans'  court  to  be  necessary  to  sell 
the  lands  and  premises  covered  by  the  lien  of  said  judgment 
for  the  payment  of  the  debts  of  said  testator  or  intestate,  the 
court  shall  have  power  to  order  the  said  lands  and  prelnises 
to  be  sold  free  and  discharged  of  the  lieuxof  said  judgment,  but 

^■'Page  517,  infra.  ^'Pittenffcr  v.  Pittenger.  3  N.  J. 

^^Whitaker's  Case.  72  N.  J.  Kq..       F.q.,   156. 
362.  ^''Runyon      v.      Newark      liuli.i 

Rubber  Co.,  24  N.  J.  L,  467. 


49©  Probate;  Law  and  Practice. 

shall  order  at  the  same  time  that  the  moneys  arising  from  such 
sale  be  first  applied  to  the  payment  of  said  judgment,  and  the 
balance,  after  paying  the  same,  be  assets  in  the  hands  of  the  exec- 
utor or  administrator ;  if  the  proceeds  of  said  sale  be  insufti- 
eient  to  pay  the  judgment  in  full,  the  balance  remaining  due 
thereon  shall  be  a  claim  against  the  other  assets  in  the  hands  of 
the  executor  or  administrator  in  the  same  manner  as  now  pro- 
vided by  law." 

Sale  of  Lands  Free  from  Dower,  or  Curtesy. 

The  act  of  191 5,^^^  provides  that  estates  and  interests  of 
dower,  and  right  of  dower  and  curtesy,  be  and  the  same  are 
abolished  thereby,  provided,  however,  that  nothing  in  the  act 
shall  affect  any  such  estates  or  interests  which  may  have  be- 
come vested  heretofore. 

It  will  be  observed  that  this  act,  which  became  effective  July 
4,  191 5,  excepts  from  its  operation  estates  of  dower  and  curtesy 
which  vested  prior  to  the  date  when  it  became  effective. ^*^  It 
was  therefore  deemed  advisable  to  retain  the  following  text 
in  connection  with  the  sale  of  lands  free  from  dower,  or 
curtesy. 

In  proceedings  for  the  partition  of  lands  in  any  court  of  this 
state,  or  for  the  sale  of  any  lands  by  executors,  administrators, 
or  guardians,  by  order  of  the  orphans'  court,  if  it  shall  appear  to 
the  court  in  which  such  proceedings  are  pending,  that  any  person 
is  entitled  to  an  estate  in  dower  or  by  the  curtesy  in  the  whole 
or  any  part  or  share  of  the  premises,  it  shall  be  lawful  for 
the  said  court  at  the  time  of  making  the  order  for  the  sale  of 
such  premises  to  consider  and  determine  under  all  the  circum- 
stances of  the  case,  having  regard  to  the  interests  of  all  persons 
interested,  whether  such  right  or  estate  in  dower  or  by  the 
curtesy  should  be  excepted  from  such  sale,  or  whether  the  same 
should  be  sold,  and  to  order  and  decree  accordingly  ;  and  if  the 
sale  of  the  premises  including  such  estate  shall  be  ordered. 
the  estate  and  interest  of  every  such  person  shall  pass  thereby, 
and  the  purchaser,  his  heirs  and  assigns  shall  hold  such  prem- 
ises free  and  discharged   from   all  claims  by  virtue  thereof; 

"^P.    L.    1903,    p.    74.     3    Comp.  held  that  inchoate  as  well  as  con- 
stat., p.  3847,  sec.  97a.  summate  rights  of  dower  are  not 
^»P.  L.  1915.  P-  61,  sec.  7.  affected    by    this    act.      Class    v. 
"*aln  a  very  recent  case  it  was  Strack,  96  Atl.  Rep.  405. 


Sale  of  Lands  for  I'aymext  of  Debts.  491 

proi-ided,  hoivcz'cr,  that  notice  shall  be  given  to  the  party  en- 
titled to  the  said  estate  in  dower  or  by  the  curtesy  of  the  in- 
tended application  for  the  sale  of  said  lands  free  and  dis- 
charged of  such  estate  at  least  twenty  days  prior  to  such  ap- 
jilication.  or  by  publishing  such  notice  at  least  four  weeks  next 
preceding  the  time  of  making  such  application,  in  one  of  the 
newspapers  printed  and  published  in  the  county  where  such 
lands  are  situate.''' 

Doweress.  or  Tenant  by  the  Curtesy,  May  Consent  to  Sale 
Before  Order  for  Sale  Made. 

In  all  proceedings  for  the  sale  of  lands  hereafter  to  be  made 
by  executors,  administrators,  or  guardians,  or  by  commission- 
ers on  proceedings  in  partition  under  the  direction  of  the  or- 
phans' court,  whenever  any  person  shall  be  entitled  to  an  estate 
in  dower,  or  by  the  curtesy  in  the  whole  or  any  part  or  share 
of  the  premises  in  question,  any  such  person  entitled  to  such 
estate,  shall,  before  or  at  the  time  of  the  making  of  the  order 
by  the  said  court  for  the  sale  of  said  lands  and  real  estate,  by 
writing  under  his  or  her  hand  and  seal,  signifying  his  or  her  as- 
sent and  determination  to  relinquish  his  or  her  estate  in  the 
same,  so  that  the  sarne  may  be  sold  free  of  the  encumbrance  of 
such  estate,  it  shall  be  lawful  for  the  court  to  order  and  decree 
such  estate  to  be  sold.*" 

doweress,  or  Tenant  by  the  Curtesy,  May  Consent  to  Sale 
After  Order  and  Before  Sale. 

Whenever  any  person  entitled  to  an  estate  in  dower  or  by  the 
curtesy  as  above  mentioned,  shall  at  any  time  after  the  making 
of  the  order  for  the  sale  of  such  lands  by  the  orphans'  court, 
and  before  the  sale  thereof,  signify  in  writing  under  his  or  her 
hand  and  seal  to  the  executors,  administrators,  guardians  or 
commissioners  making  such  sale,  his  or  her  desire  and  de- 
termination to  relinquish  his  or  her  estate  in  the  same,  so  that 
the  Same  may  be  sold  free  of  the  encumbrance  of  such  estate, 
such  executors,  administrators,  guardians  or  commissioners, 
may  sell  the  said  lands  including  such  estate,  and  the  executors, 

^^4  Comp.  Stat.,  p.  4680,  sec.  18.  8"4    Comp.    Stat.,    p.   4682,     .sec. 

19a. 


493  Probate  Law  and  Practice. 

adrnmistrators.  guardians  or  commissioners,  in  their  report  of 
such  sale  to  the  orphans'  court,  shall  also  report  that  the  said 
lands  were  sold  free  and  discharged  of  such  estate,  and  shall 
tile  therewith  the  request  of  such  tenant  in  dower  or  by  the 
curtesy,  and  the  court  may,  in  their  discretion,  approve  or  dis- 
allow the  same,  and  order  the  confirmation  of  such  sale  accord- 
ingly.*^ 

Purchaser  to   Hold   Free   from   Such   Estate   of   Dower  or 
Ifi' Curtesy. 

If  the  sale  of  the  premises  including  such  estate  shall  be 
made  and  approved  as  above  provided,  the  estate  and  interest 
of  every  such  person  shall  pass  thereby,  and  the  purchaser,  his 
heirs  and  assigns,  shall  hold  such  premises  free  and  discharged 
from  all  claims  by  virtue  thereof .^- 

Sale  Divests  Widow  of  Her  Estate. 

Where  the  proceedings  for  the  sale  of  lands  to  pay  dece- 
dent's debts  are  regular,  and  the  orphans"  court  orders  the  land 
to  be  sold  free  from  the  widow's  right  of  dower,  the  sale 
thereunder  divests  her  of  all  claim  upon  the  lands,  and  trans- 
fers her  interest  to  the  money  derived  from  such  sale.*^ 

Disposition  of  Proceeds  of  Sale, 

Upon  such  sale  being  made  of  any  such  estate  in  dower  or 
by  the  curtesy,  the  said  court  shall  direct  the  payment  of  th^ 
proceeds  of  the  sale  of  the  premises  in  the  same  manner  as  is 
already  provided***  where  lands  are  sold  free  and  discharged 
of  any  estate  in  dower  or  by  the  curtesy,  l)y  the  order  of  said 
court.*^ 

All  Lands  Must  Be  Sold. 

On  a  bill  for  partition  of  three  separate  tracts  of  land,  the 
coun  has  no  power  to  order  that  a  widow's  dower  therein  be 

^^^    Comp.    Stat.,    p.  4682,    sec.  84See  "Compensation  to  Dovver- 

19b-  ess,  or  Tenant  b\-  tlie  Curtesy."'  p. 

^^4    Comp.    Stat.,    p.  4682,    sec.      493.  infra. 
19c.  S54    Comp.    Stat.,    p.    4682,     sec. 

»^Schmitt    V.    Willis,  40    N.    J.       igd. 
Eq..  515- 


Sale  of  Lands  for  Paymknt  of  Debts.  493 

bft  off  in  one  tract,  and  that  the  remainder  of  that  tract,  and 
also  the  other  two  tracts.  l)e  sold  free  and  clear  of  the  en- 
cumbrance of  dower.®^ 

When  Lands  Will  Not  Be  Sold  Free  from  Dower. 

Where  the  widow  was  aged,  and  her  health  was  precarious 
and  infirm,  and  she  had  lived  on  the  premises  during  most  of 
her  married  life,  and  it  appeared  that  the  ])remises  were  such 
that  a  suitable  part  could  be  set  off  for  her  occupancy,  that  her 
pecuniary  interests,  as  well  as  her  general  welfare,  would  be 
promoted  by  excepting  her  interest  from  the  sale,  and  that  com- 
plainant's interest  would  not  thereby  be  impaired,  it  was  held 
that  the  premises  would  be  directed  to  be  sold  subject  to  the 
widow's  dower.*' 

Compensation  to  Doweress,  or  Tenant  by  the  Curtesy. 

Upon  such  sale  being  made  of  such  estate  in  dower  or  by 
the  curtesy  under  the  last  preceding  section,  the  said  court 
shall  direct  the  payment  of  such  sum  in  gross  out  of  the  pro- 
ceeds of  the  sale  of  the  premises  to  the  person  entitled  to  such 
estate,  as  shall  be  deemed  a  just  and  reasonable  satisfaction  for 
such  estate  or  interest,  and  which  the  person  so  entitled  shall 
consent  in  writing  to  accept  in  lieu  thereof ;  but  in  case  no 
such  consent  be  given  before  the  making  of  the  order  confirm- 
ing such  sale  or  for  the  distribution  of  the  proceeds  thereof, 
then  the  court  shall  a.scertain  and  determine  what  proportion 
of  such  proceeds  will  be  a  just  and  reasonable  sum  to  be  in- 
vested for  the  benefit  of  the  person  entitled  to  such  estate,  in 
dower  or  by  the  curtesy,  and  shall  order  the  same  to  be  put 
at  interest,  on  sufficient  security  of  real  property  or  invested  in 
public  stock,  or  deposited  in  some  safe  and  reliable  savings  in- 
stitution, by  order  and  under  the  direction  and  control  of  said 
court  for  the  benefit  oi  the  parties  entitled,  and  the  interest 
thereon  to  be  paid  to  them  as  the  same  may  become  due  as  a 
romi)ensation  for,  and  in  lieu  of  the  said  estate  in  dower  or  by 
the  curtesy,  and  at  the  (Iccca^c  of  the  ])crson  entitled  to  the 

8«Har(Hn  v.  Lawrence.  40  N.  J.  ^^Bleeckcr  v.  Hennion.  23  N.  J. 

T^q-,  154-  Eq..   123. 


494  Probate  Law  and  Practice. 

same,  the  principal  sum  shall  be  paid  to  or  distributed  among 
the  parties  entitled  thereto.^® 

Method  of  Fixing  Compensation. 

W^hen  a  sale  is  made  free  from  a  widow's  right  of  dower, 
the  doweress  is  entitled  by  the  statute  to  a  just  and  reasonable 
satisfaction  for  her  estate.  This  means  full  compensation  for 
the  loss  which  she  sustains  by  having  her  estate  taken  from 
her  by  the  decree  of  the  court.  The  value  of  her  estate  must 
be  computed  from  the  use  and  profits  she  was  entitled  to  derive 
from  it  if  not  sold.  It  was  not  intended  that  the  interest  of 
one-third  of  the  net  proceeds  was  to  be  paid  to  the  doweress, 
or  a  sum  in  gross  computed  from  the  interest  of  such  one-third, 
as  a  compensation  for  the  sale  of  her  estate.®''  In  ascertaining 
the  proper  sum  to  be  paid  in  gross  to  a  tenant,  the  present  value 
of  an  estate  of  dower,  or  curtesy  is  to  be  ascertained  upon  the 
principle  of  life  annuities,  to  be  calculated  upon  the  basis  ot 
the  tables  prescribed  by  the  rules  of  the  Court  of  Chancery.^*' 
The  184th  and  185th  rules  of  the  Court  of  Chancery  should 
not,  however,  be  taken  as  an  absolute  guide ;  but,  irrespective 
of  the  result  of  the  application  of  the  rule  to  the  case  in  hand, 
the  court  should  determine  what,  in  each  case,  under  the  circum- 
stances thereof,  is  a  reasonable  sum  to  be  paid  in  commuta- 
tion.^^ 

Where,  after  sale  of  the  lands,  the  widow  consents  to  take  a 
gross  sum  in  lieu  of  dower,  and  then  dies,  the  fact  of  her  death 
cannot  affect  the  valuation  to  be  made  of  her  interest  in  the 
lands,  for  it  is  her  expectancy  which  is  to  be  valued,  not  the 
actual  value  of  her  life  estate,  as  it  has  turned  out  to  be :  the 
right  of  the  widow  becomes  vested  by  her  consent,  and  her 
subsequent  death  cannot  affect  her  vested  right."-  But  where 
the  estate  is  ordered  to  be  sold,  and  the  widow  agrees  to  ac- 
cept a  gross  sum  in  lieu  of  dower,  and  she  dies  before  the  sale 
of  the  premises,  her  estate  is  determined  by  her  death,  and  her 

s?4  Comp.  Stat.,  p.  4681,  sec.  19.  o'Cronkright  v.  Haulenbeck.  25 

^"Haulenbeck  v.  Cronkright,  23  N.  J.  Eq.,  513. 

N.  J.   Eq.,  407.     Affirmed.  25   N.  ^-Mulford    v.    Hiers.    13    N.    J. 

J.  Eq.,  513.  Eq.,     13.       McLaughlin     v.     Mc- 

■>"Chiswell   V.   Morris,    14   N.   J.  Langlilin,  22  N.  J.  Eq..  505. 
l-'.q..    lOI. 


Sale  of  Lands  for  Pay.ment  of  Debts.  495 

children  can  have  no  claim  to  any  portion  of  the  proceeds  of 
the  sale.'*^  '  ■  • 

Where  lands  subject  to  curtesy  are  sold  free  of  such  curtfifsy, 
the  interest  on  the  proceeds  will  belong  to  the  tenant  by  cui^tesy 
during  life.''* 

Investment  of  Proceeds. 

Where  a  portion  of  the  money  arising  from  the  sale  of  lands 
in  which  the  widow  has  a  right  of  dower  is  put  out  by  com- 
missioners on  bond,  the  bond  should  be  taken  in  the  name  of 
the  commissioners,  and  not  of  the  widow  f-'  but  when  the 
money  arises  from  a  sale  made  by  an  officer  of  the  Court  of 
Chancery  the  mortgage  is  made  to  the  Chancellor.''^' 

Proceedings  Where  Executor  or  Administrator  Has  Died 
After  Order  for  Sale  Made. 

Where  the  orphans'  court  of  any  county  of  this  state  has 
made  or  shall  make  an  order  for  the  sale  of  lands  for  the  pay- 
ment of  debts  and  tlie  executor  or  administrator  to  whom  such 
order  is  directed,  or  in  whose  name  the  application  may  be 
pending,  has  died,  shall  die  or  be  removed  before  such  sale 
is  made,  the  said  court  shall  have  power  upon  the  application 
of  the  substituted  administrator  or  administrators,  and  upon 
giving  bond  in  the  manner  and  form  prescribed  by  law,  to 
direct  the  substituted  administrator  or  administrators  to  make 
sale  of  said  land  at  public  or  private  sale  in  the  same  manner 
as  if  the  rule  to  show  cause  and  other  prior  proceedings  had 
been  in  his  or  their  names. ^' 

Proceedings  When  Executor  or  Administrator.  Dies  After 
Confirmation  of  Sale  and  Before  Deed  Delivered. 

Where  any  sole  or  surviving  executor  or  administrator,  who 
hath  heretofore  sold,  or  may  hereafter  sell  any  lands  or  real 
estate  for  the  payment  of  debts  of  his  testator  or  intestate,  by 

■•-Mulford    V.    Hiers,    13    N.    J.  N.  J.  L.,  60.     Sliotwell  v.  Dalrym- 

Eq.,  13.  McLaughlin  v.  McLaugh-  pie,  49  N.  J.  L.,  530-536. 

lin.  22  N.  J.  Eq.,  505.  ""Sholwell   v.   Dalrymple,  49   N. 

^^Jacques  v.  Ennis.  25  N.  J.  Eq.,  J.  L.,  530-536. 

402.  !'"!'.    I,.    1904,    p.   93.     3    Comp. 

"^In  re  Elizaljeili  Stevenson,  10  Stat.,  p.  3848.  sec.  98a. 

33 


496  Probate  Law  and  Practice. 

virtue  of  an  order  of  any  orphans'  court,  shall  have  died  or 
may  hereafter  die,  after  such  sale  has  been  confirmed  by  said 
court,  and  before  the  delivery  of  the  deed  or  deeds  for  the  said 
lands  or  real  estate,  to  the  purchaser  or  purchasers,  and  said 
lands  or  real  estate,  have  not  been  heretofore  resold,  the  said 
court  at  any  term  shall,  on  the  application  of  any  one  interested 
in  the  sale  of  said  real  estate,  by  rule  of  court,  direct  the 
administrator  or  administrators  de  bonis  non  of  such  testator 
or  intestate  or  the  survivor  or  survivors  of  them,  to  execute 
good  and  sufficient  conveyances  in  the  law  to  said  purchaser  or 
purchasers,  for  the  tracts  or  tract  of  land  or  real  estate  so 
sold ;  and  it  shall  be  the  duty  of  the  said  court,  before  grant- 
ing such  rule,  to  take  of  such  administrator  or  administrators 
de  bonis  non,  a  bond,  with  sufficient  sureties,  the  same  in  et^ect 
as  is  required  to  be  given  by  any  executor  or  administrator 
who  may  be  ordered  to  sell  land,  or  real  estate."^ 

Proceedings  in  Case  of  Death  of  Purchaser  After  Sale. 

When  any  purchaser  of  real  estate  at  any  commissioners', 
executors',  administrators'  or  guardians'  sale  shall  die,  after 
such  sale  has  been  made  and  the  conditions  thereof  subscribed 
and  agreed  to,  but  before  the  same  has  been  confirmed  by  the 
court,  or  after  such  sale  has  been  confirmed  and  before  the  deed 
for  such  real  estate  has  been  delivered,  or  having  been  delivered 
has  been  lost  or  mislaid  and  is  not  of  record  in  the  office  of 
the  county  clerk  or  register  of  the  county  in  which  such  real 
estate  is  situated,  it  shall  and  may  be  lawful  for  such  com- 
missioners, executors,  administrators  or  guardians  (such  sale 
being  confirmed  by  the  court)  to  execute  and  deli\er  to  the 
heirs  or  devisees  or  assigns  of  the  purchaser  or  present  owner 
of  said  real  estate  a  deed  for  the  real  estate  so  sold,  subject  to 
any  conditions,  restrictions  or  reservations  contained  in  the 
order  of  the  court,  if  any  there  be,  directing  the  making  of  such 
deed,  which  deed,  when  delivered  to  the  heirs  of  a  purchaser 
dying  intestate,  or  to  the  devisee  or  devisees  of  a  purchaser 
leaving  a  will,  who  by  said  will  would  be  entitled  thereto,  or 
to  such  person  or  persons  as  may  be  entitled  thereto  because  of 
the  absolute  conveyance  of  said  real  estate  l^y  said  purchaser 

"*4  Comp.  Stat.,  p.  4680,  sec.  17. 


Sale  of  Lands  for  Payment  of  Debts.  497 

by  a  good  and  sufficient  deed  recorded  in  tlie  office  of  the  clerk 
or  register  of  the  county  in  which  said  real  estate  is  situated, 
shall  have  the  same  force  and  effect  as  if  made,  executed  and 
delivered  to  the  purchaser  when  living,  provided  the  said  heirs 
or  devisees  shall  perform  the  conditions  of  sale  subscribed  and 
agreed  to  by  the  purchaser ;  provided,  hoivever,  that  no  deed 
so  made  shall  be  to  the  prejudice  of  any  rights  in,  privileges  to, 
liens  or  encumbrances  upon  or  affecting  said  real  estate  or  any 
part  thereof,  if  any  there  be,  at  or  before  the  time  of  delivery  of 
such  deed ;  further  provided,  that  where  such  commissioners, 
executors,  administrators  or  guardians  shall  have  died  subse- 
quently to  the  sale  of  real  estate  in  virtue  of  an  order  of  the 
court  and  said  sale  shall  have  been  approved  of  by  the  court, 
and  the  purchase  price  paid  by  the  purchaser  and  deed  ordered 
by  the  court  to  be  executed  to  the  purchaser,  the  said  court 
may,  upon  the  application  and  satisfactory  proofs  of  any  person 
or  persons  interested  in  said  real  estate,  appoint  an  adminis- 
trator, substitutionary  or  otherwise,  to  make,  execute  and 
deliver  the  deed  as  aforesaid ;  and  it  shall  be  the  duty  of  the 
said  court  before  granting  such  order  to  take  of  such  adminis- 
trator a  bond,  with  sufficient  sureties,  with  condition  or  con- 
ditions as  may  be  agreeable  to  the  court.^** 

Proceedings   When   Purchaser   Refuses   to    Comply   With 
Conditions  of  Sale. 

When  any  purchaser  of  real  estate  at  any  commissioners,' 
executors',  administrators'  or  guardians'  sale  shall,  after  such 
sale  has  been  made,  and  the  conditions  thereof  subscribed  and 
agreed  to,  and  the  same  has  l^een  confirmed  by  the  court,  or 
after  such  sale  has  been  confirmed  and  before  the  deed  for 
such  sale  of  real  estate  has  ])een  delivered  to  the  purchaser, 
refuse  or  neglect  to  comply  with  any  of  the  conditions  of  such 
sale,  including  the  receiving  of  the  deed  and  the  payment  of  all 
the  consideration  money,  it  shall  be  lawful  for  any  such  com- 
missioners, executors,  administrators  or  guardians,  to  apply 
to  the  court  making  the  order  of  sale,  or  making  the  order  of 
confirmation  of  sale,  as  the  case  may  be,  by  petition,  and  the 

8°4  Comp.  Stat.,  p.  4683,  sec.  21, 
as  amenrlcfl  by  P.  I..   1915,  p.  151. 


498  Probate  Law  and  Practice. 

said  court  is  hereby  authorized  to  set  aside  such  contirmation  of 
sale  or  sales,  and  further  order  such  commissioners,  executors, 
administrators  or  guardians,  as  the  case  may  be,  to  make  re-sale 
of  the  said  real  estate ;  provided,  nevertheless,  that  such  order 
or  orders  of  re-sale  shall  not  in  any  way  relieve  the' first  pur- 
chaser from  liability  to  make  good  and  pay  any  deficiency  or 
reduction  of  price,  and  interest,  cost  and  expenses  incurred  in 
or  resulting  from  making  a  re-sale  of  such  real  estate  imder 

this  act.^ 

» 

Validity  of  Order.. 

In  making  orders,  for  the  sale  of  lands  of  decedents  for 
the  payment  of  debts,  the  orphans'  court  exercises  a  jurisdiction 
which,  though  limited,  is  not  special.  Its  orders  and  decrees 
upon  all  subjects  within  the  scope  of  its  jurisdiction  are  entitled 
to  every  presumption  in  favor  of  their  regularity  that  the 
judgments  of  the  Supreme  Court  are  entitled  to.  and  infirmities 
in  the  proceedings  of  the  orphans'  court  are  not  available  in  a 
collateral  proceeding.-  The  court  will  be  presumed  to  have 
passed  upon  all  those  matters  the  existence  of  which  was  neces- 
sary in  order  to  authorize  the  making  of  such  order.^  If  there 
be  irregularities  or  infirmities  in  the  proceeding  by  which  the 
court  exercises  its  jurisdiction,  the  order  of  sale  may  be  set 
aside  in  a  direct  proceeding  for  review :  but  the  conveyances 
made  by  the  executor  in  pursuance  of  the  order  of  sale  cannot 
be  called  in  question  or  set  aside  in  a  collateral  proceeding.^ 
Where,  however,  a  proceeding  instituted  in  behalf  of  decedent's 
widow  for  sale  of  his  real  estate  for  the  ])ayment  of  debts  is 
founded  upon  false  claims,  fraudulently  made  for  the  purpose 
of  procuring  the  sale  of  such  lands,  a  sale  made  thereunder  to 
one  purchasing  with  notice  of  the  fraud  is.  as  between  the  heir 

M  Comp.  Stat.,  p.  4685,  sec.  27.  •"•Clark  v.  Costcllo,  59  N.  J.  L.. 

-Hohokus  V.  Erie  Railroad  Co.,  234.     As  to  validity  of  decree  of 

65  N.  J.   L.,  353.     Van   Kleek  v.  orphans'     court    in    general,     see 

O'Hanlon,  21  N.  J.  L.,  582.     Run-  "Validity  of  Decree."  p.  48.  supra, 

yon  V.  Newark  India  Rubber  Co.,  *Hohokus  v.  Erie  Railroad  Co., 

24  N.  J.  L.,  467.     Clark  V.   Cos-  65  N.  J.  L..  353. 
tello,  59  N.  J.  L.,  234. 


Sale  of  Lands  for  Payment  of  Debts.  4'^j 

at  law  and  the  purchaser,  void;   but  not  so  as  agahist  a  bona 
fide  purchaser,  without  notice." 

While  the  orphans'  court  has  general  jurisdiction  of  the 
sale  of  lands  of  decedents  to  pay  their  debts,  it  can  exercise  that 
jurisdiction  in  a  particular  case  only  upon  application  in  writing 
made  by  a  personal  representative  of  the  decedent,  and  statu- 
tory notice  given  to  the  heirs  at  law,  or  devisees ;  and  an  order 
of  sale  not  based  upon  such  acquisition  of  jurisdiction  would  be 
void.  A  purchaser  of  real  estate  under  such  order  of  sale  is 
bound  to  observe  whether  or  not  there  has  been  such  an  appli- 
cation, but  he  is  not  bound  to  take  notice  of  any  indications  of 
fraud  apparent  upon  the  face  of  the  application.''  So  if  the  day 
to  show  cause  is  one  day  less  than  two  months  from  the  date 
of  the  rule,  even  by  one  day,  the  order  to  sell  is  erroneous,  and 
must  be  set  aside  on  appeal ;  and  as  this  rule  is  the  proceeding 
by  which  jurisdiction  is  acquired,  this  defect  appearing  on  the 
record  would  avoid  the  proceeding  collaterally.' 

Court  May  Make  Second  Order. 

The  court  may  make  a  second  order  for  sale  of  real  estate 
when  the  part  directed  to  be  sold  by  the  first  order  proves 
insufficient  for  the  payment  of  the  debts. ^ 

Time  Limit  Within  Which  Order  May  Be  Made. 

No  time  is  limited  by  the  statute  within  which  an  order  for 
sale  is  to  be  made.  A  discretion  is  confided  to  the  orphans' 
court,  and  each  case  must  in  some  measure  depend  upon  its 
own  circumstances." 

Effect  of  Order. 

The  order  to  sell  lands  to  pay  debts  is  not  such  an  adjudi- 
cation in  favor  of  a  creditor  whose  debt  is  included  therein  as 
prevents  the  administrator's  setting  up  the  statute  of  limitations 
in  an  action  against  him  for  the  debt.'" 

•"•Lawson    V.    Acton,    57    N.    J.  sLiddel   v.   McVickar,    11    N.   J. 

Eq.,  107.  L.,  44. 

«Lawson  V.  .Acton.  57  N.  J.  Hq.,  -'Liddel    v.    McN'ickar.    11    N.   J. 

'07.  L..  44. 

'Bray    v.    Neill,    21    N.    J.    Eq.,  '"Everitt   v.  Williams,  45  N.  J. 

343-                       '                              ■  L.,  140. 


5op  Probate;  Law  and  Practice. 

SALE  OF  LANDS  FREE  FROM  MORTGAGE. 

When  Court  May  Order. 

Whenever  any  mortgagee  or  holder  of  an\  mortgage  upon, 
the  real  estate  of  any  testator  or  intestate  shall  file  a  claim 
upon  the  debt  secured  by  said  mortgage  with  the  executor  or 
administrator  of  said  testator  or  intestate,  and  it  shall  appear 
to  the  orphans"  court  to  be  necessary  to  sell  the  lands  and 
premises  encumbered  by  said  mortgage,  for  the  payment  of  the 
debts  of  said  testator  or  intestate,  the  said  court  shall  have 
power  to  order  the  said  lands  and  premises  sold  free  and  clear 
of  the  encumbrance  of  said  mortgage;  provided,  the  said  court 
shall,  at  the  time  of  making  the  order  to  sell,  also  order  that 
the  moneys  arising  from  such  sale  be  first  applied  to  the  pay- 
ment of  the  said  mortgage  debt,  and  the  balance,  after  paying 
the  same,  to  be  assets  in  the  hands  of  said  executor  or  adminis- 
trator.^^ 

Form  of  Order  For  Sale. 

A  general  order  to  sell  lands  of  the  intestate  encumbered  by 
mortgages,  for  which  claims  have  been  filed  with  the  adminis- 
trator, is  insufficient  to  authorize  a  sale  free  from  the  mortgage  ; 
but  where  mortgagees  had  filed  their  claims  with  the  adminis- 
trator, and  a  general  order  for  the  sale  of  lands  was  made, 
and  the  purchasers  either  had  no  knowledge  of  the  mortgages, 
or  understood  that  the  sale  was  free  from  them,  and  the  price 
realized  from  the  land  was  adequate,  regarding  the  property  as 
unencumbered,  and  the  proceeds  were  first  applied  to  the  pay- 
ment of  the  mortgages,  it  was  held  that  the  order  of  sale  should 
be  amended  nunc  pro  tunc  so  as  to  authorize  a  sale  free  from 
encumbrances. ^- 

Payment  of  Mortgage  in  Case  Proceeds  of  Sale  Are  Insuffi- 
cient to  Pay  Mortgage  Debts. 

Where  the  proceeds  of  said  sale  shall  be  insufficient  to  pay 
the  said  mortgage  debt  in  full,  the  said  mortgagee  or  holder  of 
the  mortgage  shall  be  entitled  to  be  paid  out  of  the  other  assets 

"Orphans'   Court   Act,   sec.   87.  ^aVoorhees'  Case.  57  N.  J.  Eq., 

,3   Comp.   Stat.,  3843.  291. 


Sale  of  Lands  for  Payment  of  Debts.  501 

in  the  hands  of  said  executor  or  administrator  tlie  balance  onl\- 
of  his  claim  /to  rata  with  the  other  creditors/^ 

Proceedings    Where    Court    Does    Not    Make    Order    Con- 
cerning Payment  of  Mortgage  Debt. 

Whenever  any  mortgagee  or  holder  of  any  mortgage  upon 
the  real  estate  of  any  testator  or  intestate  has  heretofore  filed 
a  claim  upon  the  debt  secured  by  said  mortgage  with  the  exe- 
cutor or  administrator  of  said  testator  or  intestate,  and  the 
orphans'  court  has  heretofore  ordered  the  lands  and  premises 
covered  by  said  mortgage  to  be  sold  free  and  clear  of  the  en- 
cumbrance of  said  mortgage  without  at  the  same  time  ordering 
that  the  moneys  arising  from  such  sale  should  be  first  applied 
to  the  payment  of  the  said  mortgage  debt,  and  the  said  lands 
and  premises  have  actually  been  heretofore  sold  under  said 
order,  then  and  in  any  such  case  it  shall  be  lawful  for  the  said 
orphans'  court,  at  any  time  before  the  distribution  of  the  pro- 
ceeds of  said  sale,  to  make  an  order  that  the  money  received 
from  such  sale  shall  be  first  applied  to  the  payment  of  the 
said  mortgage  debt,  and  the  balance,  after  paying  the  same,  to 
be  assets  in  the  hands  of  said  executor  or  administrator,  pro- 
vided the  holder  of  the  mortgage,  upon  receiving  payment  of 
such  mortgage  debt  in  pursuance  of  such  sale,  shall  forthwith 
procure  the  said  mortgage  to  be  cancelled  of  record.'* 

APPEAL  FROM  ORDER  FOR  SALE  OF  LANDS. 

Who  May  Appeal. 

Only  those  aggrieved  by  an  order  for  sale  of  lands  have  the 
right  to  appeal  from  such  order,  a  party  aggrieved  being  one 
whose  pecuniary  interest  is  directly  affected  by  the  decree,  or 
whose  right  of  property  may  be  established  or  divested  there- 
by.^'^  A  party  having  no  interest  in  or  claim  upon  the  estate  in 
lands  ordered  to  be  sold  for  the  payment  of  debts,  but  setting 
up  a  claim  thereto  by  title  paramount,  is  not  entitled  to  appeal 
from  the  order  of  sale.     So  a  person  claiming  that  he  and  not 

^'Orphans'  Court  Act,  sec.  88.  3  '•'•Swackhamer  v.  Kline,  25  N.  J. 

Comp.  Stat..  3843-  Eq-  503- 

'♦P.  L.   1900,  p.  305.     3  Comp. 
Stat.,  p.  3843,  sec.  88a. 


502  "  tPROBATiE    LyAW    AND    PRACTICE. 

the  intestate  was  the  owner  of  lands  ordered  sold  by  the  or- 
phans' court  for  payment  of  debts  upon  the  appHcation  of  an 
administrator  is  not  a  party  in  interest,  and  is  not  entitled  to 
appeal  from  such  order.'  The  conveyance  which  the  adminis- 
trator is  authorized  to  make  in  pursuance  of  the  sale  authorized 
by  the  orphans'  court  will  pass  only  the  estate,  if  any,  the 
intestate  had  in  the  property  at  the  time  of  his  death,  if  the 
order  was  made  within  a  year  therefrom,  or,  if  it  was  not 
obtained  within  that  time,  then  the  estate,  if  any,  which  his 
heirs  had  in  it  when  the  order  was  made;  no  right  or  title  of 
the  claimant  can  therefore  be  affected  in  any  degree  by  the 
salCj  and  he  is  not  "interested  in  the  lands,  tenements,  heredita- 
ments and  real  estate  of  which  the  intestate  died  seized."^" 

Since  the  pecuniary  interest  of  a  devisee  is  affected  by  a  dis- 
advantageous sale  of  the  property  by  an  administrator,  ap- 
proved b}'  the  orphans'  court,  he  is  aggrieved  l)y  the  order  of 
sale,  and  therefore  the  Prerogative  Court  has  jurisdiction  to 
review  the  same  ;^^  but  general  creditors  of  an  estate  are  not 
aggrieved,  and  have  no  right  to  appeal.^** 

SECURITY    REQUIRED    OF    EXECUTOR    OR    ADMINIS- 
TRATOR ORDERED  TO  SELL  LANDS. 

Executor  or  Administrator  to  Give  Bond. 

When  any  orphans'  court  in  this  state  shall  order  any  execu- 
tor or  administrator  to  sell  any  lands,  tenements,  heredita- 
ments or  real  estate  of  any  testator  or  intestate,  the  said  court 
shall  take  of  the  executor  or  administrator  applying  for  such 
an  order  a  bond,  with  two  or  more  sufffcient  sureties  to  the 
ordinarj^-of  the  state  and  his  successors,  in  a  penalty  double 
the  aniovmt  of  the  estimated  value  of  the  lands,  tenements, 
hereditaments,  or  real  estate  ordered  to  be  sold,  with  condition 
in  form  and  manner  following:^" 

^«SWackhamer   v.    Kline,   25   N.  ^^Parker  v.  Reynolds,  32  N.  J. 

J.  Eq.,  503.  Eq.,  290. 

'^In    re    Devine,   62    N.   J.   Eq.,  ^^Orphans'    Court   Act,   sec.   91. 

703.  3  Comp.  Stat.,  3844. 


Sale  of  Lands  for  Payment  of  Debts.  503 

Condition  of  Bond. 

The  statute  prescribes  that  a  bond  given  by  an  executor 
or  administrator  ordered  to  sell  lands  for  the  payment  of  debts 
shall  contain  the  following  condition  : 

The  condition  of  this  obligation  is  such  that  if  the  above- 
bounden  A.  B.,  executor  of  the  last  will  and  testament  of  C.  D., 
deceased  (or  administrator  of  all  and  singular  of  the  goods, 
chattels  and  credits  of  C.  D.,  deceased,  as  the  case  may  be), 
shall  well  and  truly  administer  the  moneys  arising  from  the 
sales  of  any  lands,  tenements  or  real  estate  of  the  said  C.  D.. 
directed  by  the  order  of  the  orphans'  court  of  the  county  of 
M.  to  be  sold  according  to  law ;  and  further  do  make  or  cause 
to  be  made,  a  just  and  true  account  of  his  administration,  with- 
in twelve  months  from  the  date  of  the  above  obligation, 
and  the  surplus  of  money  which  shall  be  found  remaining  upon 
the  account  of  such  sale  or  sales,  (the  same  being  first  ex- 
amined and  allowed  by  the  orphans'  court  of  the  county,  or 
other  competent  authority),  shall  distribute  and  pay  unto  such 
person  or  persons  respectively,  as  is,  are,  or  shall  be  by  law 
entitled  to  receive  the  same,  then  the  above  obligation  to  be 
void  and  of  none  efifect,  otherwise  to  be  and  remain  in  full  force 
and  virtue ;  and  no  further  bond  shall  be  required  by  the 
orphans'  court  of  any  other  county  in  which  land  is  situate.^" 

Necessity  For  Bond. 

An  executor  or  administrator  ordered  to  sell  lands  of  his 
decedent  is  required  to  give  bond,  even  though  he  has  already 
given  security  as  such  executor  or  administrator  in  a  sum 
sufficient  to  cover  the  proceeds  of  the  sale.  The  bond  given 
on  the  grant  of  administration,  or  of  letters  testamentary,  is 
only  for  the  faithful  administration  of  the  personal  estate  of 
decedent,  and  the  sureties  thereon  cannot  be  held  for  failure  to 
administer  the  proceeds  of  the  sale  of  his  real  estate.-' 

Breaches. 

When  by  the  conditions  of  the  bond  the  executor  or  ad- 
ministrator is  required  to  render  a  just  and  true  account  con- 

20Orphans'   Court   Act,    sec.   gi.  -'Camden    Mutual    Life    Insur- 

3  Comp.  Stat.,  3844.  ancc  Assn.  v.  Jones,  23  N.  J.  F.q., 

171. 


504  Probate  Law  and  Practice. 

ceining  the  sale,  an  assignment  of  a  breach  of  such  condition 
that  he  had  not  rendered  a  just  and  true  account  of  his  adminis- 
tration of  the  moneys  arising  from  the  sale  is  bad  on  de- 
murrer.-- 

Sureties  are  not  liable  for  the  proceeds  of  the  sale  of  lands 
other  than  those  mentioned  in  the  order  of  the  orphans'  court.-^ 

Executor  or  Administrator  Refusing  to  Give  Security  May 
Be  Removed. 

Where  the  orphans'  court  has  made  an  order  for  sale  undet 
the  provisions  of  this  act,  either  on  the  application  of  the 
executor  or  administrator,  or  of  a  creditor  or  creditors,  if  the 
executor  or  administrator  shall,  at  the  term  mentioned  in  the 
said  order,  neglect  or  refuse  to  give  bond  with  sureties,  as 
aforesaid,  the  said  court  shall  forthwith  revoke  the  letters 
testamentary  or  letters  of  administration  of  such  executor  or 
administrator,  and  thereupon  the  surrogate  shall  grant  letters 
(^f  administration  or  letters  testamentary  with  the  will  annexed, 
to  such  person  or  persons  having  right  thereto,  as  will  give 
bond  in  manner  and  form  aforesaid ;  and  the  order  for  the 
sale  of  lands  shall  be  made  in  the  name  of  such  administrator 
so  appointed,  who  shall  be  empowered  to  proceed  with  such 
sale  as  if  the  rule  to  show  cause  and  other  prior  proceedings 
had  been  in  his  name.-* 

JURISDICTION  OF  CHANCERY  TO  RESTRAIN  SALE. 

In  General. 

A  court  of  equity  may  restrain  an  executor  from  prosecuting 
proceedings  to  sell  lands  for  the  payment  of  claims  he  knows 
to  be  fictitious,  or  without  merit. "^  So  where  the  heir  is  an 
infant,  and  it  is  doubtful  whether  some  of  the  debts  to  pay 
which  the  lands  are  about  to  be  sold,  are  really  debts  of  the 
decedent,  chancery  will  restrain  the  sale  ;-*'  but  chancery  will 

--Ordinary  v.  Cooley,  30  N.  J.  --'First  Baptist  Church  v.  Syms, 

L.,  179.  51    N.  J.  Eq..   363.     Reversed,   52 

23Given's    Case.    34    N.    J.    Eq.,  N.  J.  Eq..  545. 

191.  -''Doll   V.   Cash,   61    N.   J.   Eq., 

-♦Orphans'   Court    Act,   sec.  98.  108. 
3  Comp.  Stat.,  3848. 


Sale  of  Lands  for  Payment  of  Debts.  505 

not  restrain  a  sale  on  the  ground  that  the  description  of  the 
lands  to  be  sold  in  the  advertisements  of  sale  is  uncertain.-^ 

JURISDICTION  OF  CHANCERY  TO  ENFORCE  SALE. 
CONTRACT  FOR  SALE. 

In  General. 

The  Court  of  Chancery-  will  not  decree  specific  performatice 
of  an  agreement  to  sell  lands  made  by  an  administrator  under 
an  order  of  sale  of  the  orphans'  court,  if  the  sale  has  not  been 
confirmed  by  the  court  ordering  it  to  be  made,  as  a  decree  for 
specific  performance  in  such  case  would  be  inefficient  and  un- 
enforceable ;  but  where  an  administrator  has  obtained  an  order 
from  the  orphans'  court  to  sell  the  lands  of  his  decedent  for 
the  payment  of  debts,  and  the  proceedings  for  sale  were  regular 
and  the  sale  has  been  confirmed  by  the  orphans'  court,  the 
administrator's  contract  to  sell  the  lands  may  be  specifically 
enforced  by  the  Court  of  Chancery.-^ 

SALE  OF  LANDS  PURSUANT  TO  ORDER. 

Nature  of  Sale. 

A  sale  of  lands  to  pay  decedent's  debts,  made  under  an  order 
of  the  orphans'  court,  is  a  judicial  sale,  and  all  of  the  rules 
concerning  judicial  sales  apply.-'' 

Lands  May  Be  Sold  at  Public  or  Private  Sale. 

Where  any  sale  of  lands,  tenements,  hereditaments  or  real 
estate  shall  be  ordered  by  the  orphans'  court  of  any  county  of 
this  state,  the  officer  or  officers,  person  or  persons  authorized, 
or  directed,  by  said  court  to  make  such  sale,  may,  unless  other- 
wise provided  in  the  order  of  sale,  make  sale  of  such  lands, 
tenements,  hereditaments  or  real  estate,  at  public  or  private 
sale,  in  his,  her  or  their  discretion,  and  on  such  terms  as  such 
officer  or  officers,  person  or  persons  may  deem  to  be  most 
advantageous  to  the  parties  concerned  therein ;  provided,  how- 
ever, that  no  sale  of  lands,  tenements,  hereditaments  or  real 

=7Parker  v.   Allen,  4   At!.  Rep.,  -sPodesta  v.  Binns.  69  N.  J.  Eq.. 

300.  387. 

-^Campbell  v.  Hough,  72,  N.  J. 
F.q.,  601. 


5o6  Probate  Law  and  Practice. 

estate,  so  made  at  private  sale  shall  be  valid  until  such  sale  shall 
have  been  confirmed  by  the  court  upon  a  report  of  the  terms 
thereof  and  proof  before  the  court  by  affidavit  or  otherwise 
that  the  price  obtained  at  such  private  sale  was  a  fair  price,  and 
that  said  sale  not  injurious  to  the  interests  of  the  parties  con- 
cerned therein.^" 

Advertisement  of  Sale. 

In  all  cases  whatsoever  where  any  sheritt,  coroner,  master 
in  chancery,  executor,  administrator,  guardian,  commissioners, 
auditors  or  other  officers  or  persons,  is  now  or  hereafter  shall 
be  authorized  or  required  by  any  public  statute,  or  the  direc- 
tion of  any  court  of  competent  jurisdiction  in  this  state,  to 
make  sale  of  any  lands,  tenements  or  hereditaments  or  real 
estate,  such  officer  or  officers,  person  or  persons,  unless. special- 
ly .directed  by  law,  shall  give  notice  by  public  advertisement 
signed  by  himself,  herself  or  themselves,  and  set  up  at  five 
or  more  public  places  in  the  county,  one  whereof  shall  be  in 
the  township,  ward  or  city  where  such  real  estate  is  situate, 
of  the  time  and  place  of  such  sale  at  least  three  weeks  next 
before  the  time  so  appointed,  and  shall  also  cause  tlie  same  to 
be  published  four  times  in  two  newspapers  to  be  designated 
by  such  officer  or  officers,  person  or  persons,  printed  and 
published  in  the  county  in  which  the  lands  are  situate,  of  which 
one  shall  be  either  a  newspaper  printed  and  published  at  the 
county  seat  of  said  county  or  a  newspaper  printed  and  pub- 
lislied  in  the  municipality  in  sai^  county  having  the  largest 
population  by  the  last  preceding  federal  or  state  census,  at 
least  once  a  week,  during  four  consecutive  calendar  weeks,  the 
last  publication  to  be  not  more  than  seven  days  prior  to  the 
time  appointed  for  selling  the  same ;  and  at  the  time  and  place 
so  appointed,  between  the  hours  of  twelve  and  five  in  the 
afternoon,  such  officer  or  officers,  person  or  persons,  shall  sell 
the  same  at  public  vendue  to  the  highest  bidder.^^ 

Publication  of  Advertisement. 

The  time  of  sale  mentioned  in  the  foregoing  act  relative  to 
the  sale  of  lands  is  referable  to  a  day,  that  is,  the  day  of  sale. 

304  Comp.  Stat,  p.  4686,  sec.  31.       sip    ^    1912,  p.  131. 


Sale  of  Lands  for  Pav.mf.nt  of  Debts.  507 

Therefore  it  is  as  though  the  act  read,  that  the  last  pablication 
of  the' notice  of  sale  is  to  be  not  more  than  seven  days  prior 
to  the  day  appointed  for  selling;'  and  the  last  advertisement 
nuist  be  made  in  two  newspapers  published  and  circulated  not 
later  than  the  calendar  day  next  preceding  the  day  appointed 
for  selling  the  same:  and  a  sate  made  on  the  day  of  theUast 
publication  6i  the  notice  is  invalid,  and  will  be  set  aside,  if  that 
publication  is  to  be  relied  upon  as  one  of  the  advertisements 
required  by  law.^- 

Where  the  time  appointed  for  an  administrator's  sale  was  the 
tenth  day  of  February,  and  the  last  insertion  of  the  notice  of 
sale  m  one  of  the  newspapers  selected  for  its  publication  was 
on  the  second  day  of  February,  it  was  held  that  the  sale  was 
illegal  because  of  the  non-compliance  with  the  requirement  of 
the  statute  providing  that  the  notice  shall  be  published  four 
weeks  successively  once  a  week  next  preceding  the  time  ap- 
pointed for  the  sale.'"  _, 

Publication  of  Advertisement  in  German  New^spaper. 

Hereafter  one  of  the  newspapers  required  to  be  designated 
bv  the  act  to  which  this  is  a  supplement,  for  the  publication 
of  advertisements  of  sales  and  of  adjournments  thereof  may 
be  printed  and  published  in  the  German  language  :  or  the  officer 
having  charge  of  any  sale  of  real  estate,  may,  in  addition  to  the 
publication  required  by  the  act  to  which  this  is  a  further  supple- 
ment, select  a  newspaper  printed  in  the  German  language, 
circulating  in  the  neighborhood  of  the  property  to  be  sold, 
whenever  the  sale,  in  his  opinion,  will  be  promoted  by  the 
publication  of  the  advertisement  thereof  in  said  newspaper.^* 

Notice  of  an  administrator's  sale  by  virtue  of  an  order  of 
an  orphans"  court,  for  the  payment  of  debts,  published  in  a 
German  newspaper,  must  be  in  the  English  language.""^ 

Adjournment  of  Sales. 

Executors  and  administrators  selling  lands  under  any  order 
of  the  orphans'  court  may  adjourn  the  sale  from  time  to  time 
not  exceeding  two  month*^  in  the  whole.''' 

•'■^Trenton    Trust.    &c..     Co.    v.  ■•<4  Com]).  Stat.,  p.  4672,  soc.  2a. 

Fitzgihhiii.  &c.,  Co..  81  N.  J.  Eq..  i.  ^.-.Tappan    v.    Dayton.    51    N!   J. 

'••'■•Tappan    v.    Dayton.    51    N.    T.  F.q.,  260. 

Kq..  260.  ■'"4  Comp.  Stat.,  p.  4673.  sec.  4. 


5o8  Probate  Law  and  Practice. 

Jtxecutors  and  administrators  selling  lands  under  any  order 
of  the  orphans'  court  may  adjourn  the  sale  from  time  to  time 
at  his  and  their  discretion  unless  the  court  making  said  order 
therein,  or  by  some  subsequent  order,  limit  the  time  within 
which  such  sale  shall  be  made,  in  which  case  sale  shall  be 
made  within  the  time  so  fixed  and  limited  or  within  such 
further  time  to  which  the  same  may  be  extended  by  other 
order  of  said  court.  ^^ 

When  Publication  of  Adjournment  Necessary. 

If  any  sale  of  lands  made  under  the  directions  of  this  act 
be  adjourned  for  more  than  one  week,  notice  of  such  adjourn- 
ment, which  need  only  consist  of  a  statement  of  the  parties  to 
the  cause  and  the  time  and  place  of  such  adjournment,  shall 
be  published  once  within  one  week  after  the  date  of  such  ad- 
journment in  the  same  two  newspapers  in  which  the  original 
notice  of  sale  was  published,  for  the  publication  of  which  notice 
of  adjournment  not  more  than  five  dollars  shall  be  allowed 
in  any  case  as  against  the  defendant  in  execution,  and  in 
publishing  any  adjournment  it  shall  not  be  necessary  to  con- 
tinue the  publication  of  the  original  advertisement  of  sale.^* 

Sale  Heretofore  Made  Not  Invalidated  by  Adjournment. 

No  sale  of  lands  heretofore  made  by  executors  or  adminis- 
trators under  any  order  of  the  orphans'  court  shall  be  invali- 
dated by  reason  of  such  sale  having  been  adjourned  for  a 
time  or  times  exceeding  two  months  in  the  whole,  but  that 
the  purchaser  or  purchasers  of  any  lands  at  su.ch  sale  who 
has  paid  or  shall  pay  the  price  thereof,  and  has  received  or  shall 
receive  a  deed  therefor,  such  sale  having  been  duly  reported 
to  and  confirmed  by  the  court  directing  the  making  thereof, 
shall  have  as  good  and  complete  a  title  thereto  as  if  said  sale 
had  been  adjourned  from  time  to  time  not  exceeding  two 
months  in  the  whole. ''^ 

'•''4  Comp.  Stat.,  p.  4673,  sec.  4a.  ^^4   Comp.    Stat..   4673.   sec.   4b. 

(P.  L.  1894,  p.  137.)  (P.  L.  1894.  p.  137.) 

•'»«P.  L.  1906,  p.   130.     4  Comp. 

Stat.,  p.  4674,  sec.  6. 


Sale  of  Lands  for  Paymknt  of  Debts.  509 

An  executor  or  administrator,  ordered  by  the  orphans'  court 
to  sell  lands  to  pay  decedent's  debts,  may  adjourn  the  sale,  after 
it  has  been  properly  advertised,  by  attorney  or  agent.*" 

Effect  of  Sale  on  Dower  Right  and  Right  of  Curtesy. 

A  wife's  dower  right  is  not  affected  by  the  sale,*'  nor  is  a 
right  of  curtesy;*-  and  where  a  widow  as  administratrix  of 
her  husband  sells  and  conveys  his  land  for  the  payment  of  his 
debts,  under  a  decree  of  the  or])hans'  court,  she  is  not  thereby 
estopped  from  claiming  her  dower  therein,  although  it  is  not 
reserved  or  excepted  in  her  deed  to  the  purchaser  at  such  sale.*^ 

REPORT   AND    CONFIRMATION   OF   SALE. 

Court  to  Confirm  Sale. 

The  executor  or  executors,  administrator  or  administrators, 
and  the  survivor  or  survivors  of  them,  who  may  be  ordered  to 
sell  any  lands,  hereditaments  or  real  estate  of  anv  testator 
or  intestate,  shall,  after  making  such  sale,  report  the  same 
to  the  orphans'  court  of  the  county  in  which  the  land  lies,  and 
if  the  said  court  shall  approve  of  such  sale,  it  shall  confirm 
the  same  as  valid  and  effectual  in  law,  and  shall  by  rule  of  court 
direct  said  administrator  or  administrators,  executor  or  execu- 
tors, and  the  survivor  or  survivors  of  them,  to  execute  good 
and  sufificient  conveyances  in  the  law.  to  the  purchaser  or 
purchasers,  for  the  tract  or  tracts  of  land  or  real  estate  so 
sold.** 

Report  of  Sale  to  be  Verified. 

Rejjorts  of  sales  of  land  to  the  orphans'  court  shall  be  veri- 
fied by  the  oath  or  affirmation  of  the  party  making  the  same.*' 

*f'Hicks  V.  Willis.  41  N.  J.  Eq..  "Sip  v.  Lawback.   17   X.  J.   I... 

515-  442. 

♦'Palmer  v.  Casperson,  17  N.  J.  •^♦Orphans'    Court    Act,    .sec.   85. 

Kq.,  204-206.     But  see  P.  L.  191 5-  3  Comp.  Stat.,  3842. 

p.  61,  sec.  7,  p.  490,  supra.  *''Orphans'   Court    Rule   ^3,   sec 

♦^Jacques  v.  Ennis,  25  N.  J.  Eq.,  p.  763,  infra. 
402. 


510  Probate  Law  and  Practice. 

Form  of  Report. 

Reports  of  sales  and  petitions  for  the  confirmation  of  sales 
bv  substitutionary  administrators  with  the  will  annexed  or 
administrators  with  the  will  annexed,  shall  state  the  names 
and  addresses  of  all  parties  in  interest  and  shall  have  annexed 
thereto  affidavits  of  at  least  two  persons  familiar  with  the  value 
of  property  in  the  neighborhood  where  the  lands  so  sold  are 
located,  giving  the  fair  market  value  of  the  lands  and  premises 
so  sold/^ 

Notice  of  Intention  to  Report  Sale  For  Confirmation. 

Notice  of  the  intention  of  any  executor,  administrator, 
guardian  or  trustee  to  make  report  of  any  sale  to  the  orphans' 
court,  or  of  any  application  by  a  substitutionary  administrator 
with  the  will  annexed  or  an  administrator  with  the  will  an- 
nexed for  the  confirmation  of  a  sale  of  lands  made  by  him 
shall,  unless  the  court  shall  otherwise  direct,  be  given  to  all 
persons  in  interest.  Five  days"  notice  of  such  application  shall 
be  given  to  all  persons  in  interest  who  are  residents  of  the 
State  of  New  Jersey,  and  not  less  than  five  nor  more  than  sixty 
days'  notice,  as  the  court  may  by  order  direct,  to  all  such 
persons  in  interest  who  shall  reside  without  the  State  of  New 
Jersey,  which  last  mentioned  notice  may  be  sent  by  mail  with 
the  postage  thereon  prepaid.*' 

Confirmation  of  Sale. 

A\'here  a  sale  is  conducted  by  an  officer  pursuant  to  an  order 
of  the  court,  mere  inadequacy  in  the  price  bid,  at  a  fair  and 
regularly  conducted  sale,  will  not  justify  refusal  to  confirm 
the  sale,  even  though  other  persons  after  such  sale  ofl^er  to  bid 
21  per  cent,  more  for  the  property.*^  The  practice  of  the 
English  court  of  chancery  in  refusing  to  confirm  sales  upon 
an  offer  to  bid  more  for  the  property,  without  an  allegation  of 
fraud  or  surprise,  was  early  repudiated  in  this  state.*'^    There 

•^"Orphans'    Court   Rule   34.  Chancery    Practice,   p.   627,    for   a 

^'Orphans'  Court  Rule  35.  full  discussion  of  this  subject. 

^''Morrisse  v.  Inglis,  46  N.  J.  Eq.,  ^"Seaman    v.    Riggins.    2    N.    J. 

306.    Bethlehem  Iron  Co.  v.  Phil-  Eq..  214.     Conover  v.  Walling,  15 

adelphia  &  Seashore  R.  R.,  49  N.  N.  J.  Eq.,  173.     Cline  v.  Prall,  2; 

J.    Eq.,    356,    and    see    Kocher's  N.  J.  Eq.,  415. 


Sale  of  Lands  for  Pav.mext  of  Debts.  511 

is  a  uniform  current  of  decisions  that  official  sales  will  not  be 
refused  confirmation,  or  set  aside,  on  mere  representation  that 
more  may  be  obtained  for  the  property.  The  court  will  not 
interfere  on  account  of  mere  inadequacy  of  price,  unless  the 
price  is  so  grossly  inadequate  that  the  court  can  infer  fraud 
therefrom,  or  where  great  injustice  will  be  done  by  confirm- 
ing the  sale.^"  A  court  should,  however,  withhold  confirmation 
and  order  a  re-sale,  if  the  bid  reported  is  far  below  the  esti- 
mated value,  and  the  property  was  not  offered  for  sale  in  a 
manner  which,  in  view  of  all  the  known  circumstances,  seemed 
likely  to  bring  the  best  price.  If  the  sale  is  so  managed  as  to 
discourage  bidders  and  to  result  in  a  considerable  sacrifice, 
that  circumstance  would  justify  the  court  in  refusing  to  con- 
firm the  sale,  even  though  the  purchaser  had  nothing  to  do  with 
such  mismanagement ;  the  court  must  regard  the  interest  of 
those  parties  whose  property  it  undertakes  to  sell,  as  well  as 
the  expectations  of  those  who  propose  to  buy."^ 

If  a  sale  be  refused  confirmation  on  the  ground  of  inade- 
quacy of  price  alone,  the  applicants  for  a  resale  will  l)e  required 
to  give  some  security  or  assurance  that  at  such  re-sale  a  higher 
price  will  be  bid  for  the  property.^- 

Effect  of  Irregularity  in  Publication  of  Notice  of  Sale. 

All  sales  of  land  made  by  virtue  of  any  order,  judgment  or 
decree  of  any  court  of  record  of  this  state  shall  be  confirmed 
by  the  court,  notwithstanding  any  defect  or  irregularity  in  the 
publication  of  the  advertisement  of  such  sale;  provided,  that 
the  officer  making  such  sale  shall  certify,  under  oath,  that  such 
sale  was  otherwise  regular,  and  that  the  property  was  sold  for  a 
fair  price,  in  tlie  judgment  of  such  officer;  and  provided 
further,  that  the  court  shall  be  satisfied  ])y  affidavit  that  the 

■■"'"Morrisse    v.    Inglis,    46    N.    J.  "'iRyan  v.  Wilson,  64  N.  J.  Eq., 

F.q.,  306.     Bethlehem  Iron  Co.  v.  797-806.     Bliss  v.  N.  Y.  Life  Ins. 

Philadelphia    &    Seashore    R.    R.  Co..    51    N.   J.    Eq.,   630,   and    see 

Co..  49  N.  J.  Eq.,  356.    Bliss  v.  N.  Kocher's     Chancery     Practice,    p. 

Y.   Life    Insurance   Co.,   51    N.   J.  627,   for  a   full   discussion   of  this 

Eq.,  630,  and  see  Kocher's  Chan-  suhjoct. 

eery   Practice,   p.   629,    for   a    full  '-Porch  v.  Agnew,  66  N.  J.  Eq., 

discussion  of  this  subject.  232.     Afifirmcd,  67  N.  J.  Eq.,  ']2'^. 

Strong  V.  Smith.  68  N.  J.  Eq.,  650. 
34 


512  Probate  Law  and  Practice. 

defect  or  irregularity  in  the  publication  was  not  injurious  to  the 
parties  in  interest.^^ 

This  act  is  not  a  mere  validating  act.  applicable  to  past  sales 
only,  but,  in  providing  that  "all  sales"  made  by  order  of  any 
court  "shall  be  confirmed,"  nothwithstanding  any  irregularity 
in  the  publication  of  the  notice  of  sale,  when  the  officer  making 
the  sale  certifies,  under  oath,  that  the  sale  was  otherwise  regu- 
lar and  for  a  fair  price,  applies  to  future  sales."  Where, 
however,  it  appears  that  the  property  was  sold  for  less  than  its 
fair  value,  it  cannot  be  said  that  a  defect  in  the  publication 
of  the  advertisement,  consisting  in  failure  to  publish  in  two 
newspapers,  as  required  by  law,  was  not  injurious  to  a  second 
mortgagee.^^  The  burden  of  proving  that  the  price  was  fair, 
where  the  advertisement  is  defective,  is  on  the  officer  or  pur- 
chaser alleging  it.^*' 

Practice. 

When  the  law  requires  that  a  report  of  a  sale  should  be 
made  to  a  court,  that  it  may  look  into  the  circumstances,  and 
either  confirm  it  or  set  it  aside,  and  the  sale  is  not  to  be  available 
until  approved  by  the  court,  and  the  conveyance  is  to  be  made 
under  the  direction  of  the  court,  the  proper  practice  is  un- 
questionably that  the  true  purchaser  should  be  made  known, 
either  to  the  officer  ( that  he  may  report  the  facts  to  the  court ) , 
or  to  the  court  itself,  before  the  conveyance  is  ordered. ^^ 
Administrators  who  sell  land  by  virtue  of  an  order  in  pursuance 
of  our  statutes,  having  no  interest,  execute  a  naked  power 
under  a  special  authority,  which  must  be  strictly  pursued. ^^ 

Validity  of  Sale. 

An  administrator's  sale  reported  to  and  confirmed  by  the 
orphans'  court  according  to  the  requirements  of  the  statute 
cannot  be  set  aside  or  inquired  into  collaterally,  except,  like 

■'"P.  L.  1891,  p.  24.  ^'Den  V.  Lambert,   13   N.  J.   L., 

•''^Polhemus  v.   Priscilla,  54  Atl.       182. 

Rep.,  141.  "'SDen  v.  Lambert,  13  N.  J.  L., 

^sPolhemus  v.  Princilla,  61  Atl.       182.     Den  v.  Philhower,  24  N.  J. 

Rep.,  263.  L.,  796.     Wortman  v.  Skinner,  12 

•'■'^Polhemus  v.  Princilla,  61   Atl.       N.  J.  Eq.,  358. 
Rep.,  263, 


Sale  of  Lands  for  Payment  of  Debts.  513 

other  judgments,  for  fraud  in  obtaining  it  f'  the  Court  of 
Chancery  has,  in  the  exercise  of  its  general  jurisdiction,  power 
to  set  aside  sales  made  by  order  of  the  orphans'  court,  where 
fraud  in  obtaining  the  order  is  shown/'"  After  confirmation 
by  the  orphans'  court,  the  Court  of  Chancery  will,  as  has  beei> 
said  above,  enforce  a  contract  of  an  administrator  to  sell  the 
lands  of  his  intestate,  provided  the  proceedings  for  sale  were 
regular."^ 

Where  no  account  of  the  personal  estate  was  exhibited,  and 
no  order  made  directing  persons  interested  in  the  lands  to  show 
cause  why  they  should  not  be  sold,  the  order  to  sell  lands,  the 
sale  thereunder,  and  an  order  confirming  the  sale,  were  errone- 
ous, and  must  be  set  aside. '^- 

After  a  decree  for  sale  of  lands  has  been  executed,  the 
orphans'  court  has  no  power  to  set  aside  the  decree.^^ 

Duty  of  Purchaser. 

A  purchaser  of  real  estate  under  an  order  of  the  orphans' 
court  is  bound  to  observe  whether  all  the  proceedings  to  obtain 
such  order  have  been  regular ;  but  he  is  not  bound  to  take 
notice  of  any  indication  of  fraud  apparent  upon  the  face  of 
the  application."'* 

Evidential  Value  of  Order  Confirming  Sale. 

When  any  sale  of  lands  shall  hereafter  be  made  by  order  of 
an  orphans'  court,  and  the  sale  shall  have  been  confirmed  by 
the  court  of  the  county  in  whicli  the  lands  are  situate,  the 
order  confirming  the  sale,  or  a  certified  co[)y  thereof,  shall  l)e 

•"'^Runyon  v.  Newark  India  Rub-  L.,  82.    Reversed.  21  N.  J.  L.,  614. 

ber  Co.,  24  N.  J.  L.,  467.  As  to  validity  of  decrees  of  or- 

^^'Howell   V.    Sebring,    14   N.   J.  phans'  court  in  general,  see  "Va- 

Eq.,  84.  lidity    of    Decree,''    p.    48,    supra. 

"'Campbell  v.  Hough,  ys  N.  J.  That  the  order  confirming  sale  is 

Eq.,    601.     As    to   jurisdiction    of  conclusive  evidence  of  the  fulfill- 

chancery  to  set  aside   decrees   of  ment    of    the    statutory    requirc- 

orphans'     court    in     general,     see  ments,  see  section  93  of  the  Or- 

"\'alidity  of  Decree,"  p.  48,  supra.  phans'  Court  Act,  3  Comp.   Stat., 

''^McDonald  v.  Hutton,  8  N.  J.  3845,  this  page,  intra. 

Eq.,  473.  "^Lawson    v.    .\cton,    57    N.    J. 

®'Crombie    v.    Engle,    19    N.    J.  Eq.,   107. 


514  Probate  Law  and  Practice. 

conclusive  evidence  in  all  courts,  and  for  all  purposes,  of  the 
validity  of  the  proceedings  for  sale  and  of  the  fulfillment  of 
all  statutory  requirements;  such  order  of  confirmation  may 
be  set  aside  or  reversed  by  appropriate  proceedings  for  that 
purpose ;  but  no  such  reversal  shall  be  of  any  force  or  avail 
against  any  bona  fide  purchaser,  and  the  said  purchaser,  his 
heirs  and  assigns,  after  delivery  of  the  deed  to  him,  shall  hold 
the  lands  so  purchased,  notwithstanding  such  reversal,  and 
notwithstanding  any  defects  in  the  proceedings  for  sale.*^^ 

Appeal  From  Order  Setting  Aside  Sale. 

If  the  court  without  good  cause  refuses  to  confirm  a  sale, 
a  bidder  thereat  is  a  party  aggrieved,  and  is  entitled  to  an 
appeal  to  the  Prerogative  Court.'''"' 

DEED    OF    CONVEYANCE. 
Recitals  in  Deed. 

The  deeds  or  conveyances  made  by  such  executor  or  ad- 
ministrator for  an\'  lands  or  real  estate  sold  by  virtue  of 
any  order  of  the  orphans'  court,  shall  set  forth  that  the  sale 
of  said  lands  or  real  estate  was  made  by  the  said  executor 
or  administrator  by  virtue  of  an  order  of  the  orphans'  court 
of  the  county  in  which  the  sale  shall  be  authorized,  and  the 
date  of  such  order  and  the  term  of  the  orphans'  court  in  which 
the  same  was  granted,  and  the  date  of  the  order  of  confirma- 
tion." 

The  authority  to  execute  the  deed  and  to  convey  the  title 
depends,  not  upon  the  recitals  of  tli^  deed,  but  upon  the  order 
of  th.e  court  authorizing  the  sale  and  the  confirmation  of  the 
sale  by  the  court.  The  provisions  of  this  act  prescribing  what 
shall  be  recited  in  a  deed  made  for  lands  sold  by  order  of  the 
orphans'  court  are  merely  directory :  they  relate  to  the  form  of 
the   deed,   and   do  not   afl^ect  the   substance.     If   the  grantee 

'■■'Orphans'    Court    Act,    sec.  93.  peals,  see  "Appeals."  p.  80,  supra 

3   Comp.   Stat.,  3845.  •''■Orphans'   Court    Act,   sec.  94. 

'''^Conover    v.    Walling.     15  N.  3  Comp.  Stat..  3845. 

J.  Eq.,   167.     For  practice  on  ap- 


Sale  of  Lands  for  Pavmext  of  Debts.  515 

objects  to  the  deed  because  it  is  not  in  proper  form,  he  should 
make  his  objection  at  the  time  the  deed  is  tendered.*^® 

Covenants  of  Title  Invalid. 

The  orphans'  court  act  pro\  idos  what  estate  shall  vest  in 
the  purchaser  of  lands  at  a  sale  made  by  the  representative  of  a 
decedent's  estate  for  the  payment  of  debts.  The  power  of  such 
representative  is  as  has  been  said  above,  a  naked  one,  and  must 
be  strictly  pursued ;  and  such  representative  has  no  power  to 
bind  the  estate  of  decedent  by  co\enants  of  title.'"''' 

Estate  Conveyed  by  Deed. 

The  statute  provides  that  deeds  of  conveyance,  duly  executed 
in  conformity  with  the  statute,  shall  vest  in  the  purchaser  or 
purchasers  all  the  estate  that  the  testator  or  intestate  was  seized 
of  at  the  time  of  his  or  her  death,  if  the  order  to  show  cause 
be  obtained  within  one  year  thereafter;  and  if  the  said  order 
be  not  obtained  within  that  time,  then  the  said  conveyance  shall 
vest  in  the  purchaser  or  purchasers  all  the  estate  that  the  heirs 
or  devisees  of  the  testator  or  intestate  were  seized  of  at  the 
time  of  the  making  of  the  said  order  of  the  orphans'  court ; 
and  any  deed  or  conveyance  made  in  pursuance  of  the  order  of 
the  court  confirming  such  sale  shall  be  good  and  valid  and  re- 
ceived in  evidence  as  such  in  any  court  in  this  state,  notwith- 
standing the  omission  of  the  recital  in  the  said  deed  of  the 
orders  of  such  orphans'  court  authorizing  such  sale,  and  con- 
firming the  same,  and  notwithstanding  any  variance  between 
the  recital  in  said  deed  of  the  said  orders  and  the  record  thcre- 
of.'° 

Estate  Conveyed  by  Sale  Within  One  Year  of  Decedent's 
Death. 

Since  the  enactment  of  this  section  on  December  12,  1825,"' 
a  sale  under  an  order  of  the  orphans'  court  obtained  within 
one  year  after  the  death  of  the  testator  or  intestate,  will  vest 

"sStryker   v.   Vandirbilt,   27   N.  ""Orphans'    Court    Act,    sec.  94. 

J-  L.,  68.  3  C'omp.  Stat.,  3845. 

"oCampbfll   V.   Hnuyh,   73   N.  J.  ">  F.lincr'.s  Digest,  p.  493. 
Eq.,  601. 


5i6  *     Probate  Law  and  Practice. 

in  the  purchaser  such  an  estate  as  the  testator  or  intestate 
died  seized  of  or  entitled  to  notwithstanding  any  ahenation  or 
encumbrance  made,  or  attempted  to  be  made,  by  the  heir  or 
devisee. ^- 

Estate  Conveyed  by  Sale  More  than  One  Year  After  De- 
cedent's Death. 

Since  a  conveyance  of  land  sold  under  an  order  of  the  or- 
phans' court,  not  made  until  a  year  from  the  decedent's  death, 
to  pay  debts  of  an  intestate,  will  pass  only  the  estate  of  which 
the  intestate's  heirs  or  devisees  were  seized  when  the  order 
was  made,'"  all  conveyances  made  or  encumbrances  created  by 
the  devisee  or  heir  will  be  unaffected  by  the  sale.'*  So  a  judg- 
ment against  such  heir  or  devisee  is  unaffected  by  the  sale  ;'^ 
and  so  where  lands  were  sold  under  partition  proceedings  more 
than  one  year  after  decedent's  death,  and  a  creditor  of  an 
heir  issued  an  attachment  after  the  decree  for  sale,  but  before 
the  sale  obtained  a  priority  over  other  creditors  in  the  proceeds 
of  such  sale,  which  were  paid  to  the  executor  for  the  payment 
of  debts,  the  decree  for  sale  transferred  the  attachment  lien  to 
the  proceeds.'" 

Dower  Right  of  Widow  Not  Affected. 

A  conveyance  by  an  administrator  by  virtue  of  an  order 
of  the  orphans'  court  vests  in  the  purchaser  only  the  estate  of 
which  the  husband  was  seized  at  the  time  of  his  death.  It 
follows,  therefore,  that  such  a  sale  cannot  aft'ect  the  widow's 
right  of  dower,  if  any  she  have/' 

Execution  of  Deed. 

Where  two  administrators  sell  land  under  an  order  of  the 
orphan's  court,  and  only  one  of  them  executes  the  deed,  equity 

•■-Warwick  v.  Hunt,  ii  N.  J.  L.,  Eq.,   511.     Bockover   v.  Ayres,   22 

^-  N.  J.  Eq.,   13. 

"Warwick    v.    Hunt,    11    N.    J.  ''Bockover   v.   Ayres,   22   N.   J. 

L.,   I.     Bockover  v.  Ayres,  22  N.  Eq.,  13. 

J.   Eq.,    13.     Morgan    v.    Morgan,  ""First       National       Bank       v. 

71  N.  J.  Eq.,  606.  Thompson,  61   N.  J.  Eq.,   188. 

^*Skillman  v.  Van  Pelt,  i  N.  J.  "Palmer  v.  Casperson,  17  N.  J. 

Eq.,  204. 


Sale  of  Lands  for  Pavmext  of  Debts.  517 

will  enjoin  the  heirs  from  prosecuting  an  ejectment  to  recover 
back  the  land  upon  the  ground  of  such  irregularity."* 

DISPOSITION  OF  PROCEEDS  OF  SALE. 

Assets  for  Payment  of  Debts. 

The  moneys  arising  from  such  sale  of  the  lands,  tenements, 
hereditaments  and  real  estate  of  such  testator  or  intestate, 
shall  be  received  by  the  executor  or  administrator,  and  be  con- 
sidered as  assets  in  his  hands  for  the  payment  of  debts. '° 

Disposition  of  Surplus. 

The  surplus  money  arising  from  such  sale,  remaining  after 
the  payment  of  debts  and  just  expenses  (the  personal  estate 
in  the  hands  of  the  executor  or  administrator  being  first 
applied  thereto),  if  any,  shall  be  distributed  among  the  heirs 
or  devisees  according  to  the  law  of  the  descents  in  the  former, 
and  the  will  of  the  testator  in  the  latter  case ;  and  the  orphans' 
court  in  which  the  executor  or  administrator  is  required  to 
accovmt  after  such  executor  or  administrator  shall  have  legal- 
ly accounted  for  and  touching  the  sale  or  sales  of  the  said 
lands,  tenements,  hereditaments  and  real  estate,  of  the  person 
so  deceased,  shall  order  a  distribution  of  the  surplus,  after 
debts  and  just  expenses  of  every  sort  first  allowed  and  de- 
ducted, among  the  heirs  or  devisees  to  whom  the  lands,  tene- 
ments, hereditaments  and  real  estate  so  sold,  descended  or 
were  devised,  according  to  the  law  of  descents  in  the  former, 
and  the  will  of  the  testator  in  the  latter  case,  and  the  persons 
entitled  to  such  distribution  shall  have  their  remedy  at  law, 
in  case  of  non-payment,  for  the  recovery  of  the  same,  against 
the  executor  or  administrator  so  accounting,  saving  to  every 
one,  if  aggrieved,  his,  her  or  their  right  of  appeal.'"' 

Surplus  Proceeds  Considered  Real  Estate. 

The  surplus  of  the  proceeds  of  lands  of  a  decedent  sold  by 
order  of  the  orphans'  court  for  the  payment  of  del)ts  above  the 

"^Wortman    v.    Skinner.    12     N.  "^Orphans'   Court    Act.   sec.   95. 

J.  Eq.,  358.  3  Comp.  Stat.,  3846. 

^"Orphans'    Court    Act,    ?cc.    95. 
3  Comp.  Stat.,  3846. 


5i8  Probate  Law  and  Practice. 

amount  needed  for  the  payment  of  debts,  retains  the  char- 
acter of  real  estate,  and  upon  the  death  of  the  person  entitled 
thereto  will  pass  by  succession  as  real  estate. ^^  The  proceeds 
of  the  sale  retain  their  character  of  real  estate  for  the  purpose 
of  succession  until  they  vest  in  some  person,  not  an  infant  or 
lunatic,  who  has  capacity  to  change  the  nature  of  the  estate, 
and  who,  by  accepting  it  as  money,  or  by  some  act  recognizing 
it  as  personal  estate,  gives  it  the  character  of  personalty. ®- 
So  where  a  bill  was  filed  by  an  executor  for  the  direction  of  the 
court  as  to  the  disposition  of  the  surplus  proceeds  of  the  sale 
of  real  estate  over  debts  and  legacies  claimed  by  the  adminis- 
trator of  an  insolvent  devisee,  who  died  before  the  sale,  it 
was  held  that  the  administrator,  not  having  obtained  an  order 
of  the  orphans'  court  to  sell  the  land  of  such  devisee,  was 
not  entitled  to  receive  that  part  of  the  surplus,  because  it  was 
vested  in  the  heirs  of  such  devisee.®" 

Where  lands  are  sold  more  than  one  year  after  the  death 
of  decedent,  a  judgment  creditor  has  no  right  to  any  part  or 
share  of  the  surplus  money  in  the  executor's  hands  after  the 
payment  of  debts,  since  his  judgment  is  not  affected  by  the 
sale.®* 

Interest  on  Proceeds  Considered  Personalty. 

The  income  from  lands  and  the  interest  on  the  proceeds 
of  the  sale  of  lands  are  personal  estate,  and  will,  upon  the  death 
of  an  infant  to  whom  they  belong,  be  transmitted  as  such, 
while  the  lands  and  the  proceeds  of  their  sale  pass  as  real 
estate.®^ 

Payment  of  Judgments  Against  Heirs  or  Devisees  From 
Surplus  Proceeds. 

Whenever,  on  the  application  of  any  executor  or  execu- 
tors,   administrator    or    administrators,    lands    have    been    or 

^-'Oberly  v.  Lerch,  i8  N.  J.  Eq.,  ssCook  v.   Cook,   20   N.   J.   Eq., 

346.     Affirmed,   ib.,  575.     Cook  v.  375. 

Cook,  20  N.  J.  Eq.,  375-  "•'Bockover   v.   Ayres,  22   N.   J. 

8-Oberly  v.  Lerch,  18  N.  J.  Eq.,  Eq..  13. 

346.     Affirmed,  ib.,  575.    Fidler  v.  s-'Oberly  v.  Lerch,  18  N.  J.  Eq., 

Higgins,  21  N.  J.  Eq.,  138.    Weth-  346.     Affirmed,  ib.,  575. 
erill    V.    Hough,    52    N.    J.    Eq., 
683. 


Sale  of  Lands  for  Payment  of  Debts.  519 

shall  be  sold  by  the  order  of  a  court  for  the  payment  of 
the  debts  of  any  decedent,  and  there  shall  remain  a  sur- 
plus from  such  sale  in  the  hands  of  such  executor  or  execu- 
tors, administrator  or  administrators,  after  the  payment  of 
the  debts  of  such  decedent,  to  be  distributed  among  the  heirs 
of  such  decedent  or  to  the  devisee  under  any  will,  and  any 
judgment  or  judgments  are  or  shall  he  obtained  against 
any  of  such  heirs-at-law  or  devisees  or  distributees  under 
any  will,  entitled  to  such  surplus  or  any  part  thereof,  at  any 
time  prior  to  the  distribution  of  such  surplus,  such  judgment 
creditor  or  creditors  may,  upon  petition  filed  in  the  court 
ordering  such  sale  in  such  cause,  have  an  order,  and  such  court 
is  hereby  authorized  to  make  the  same,  directing  the  payment 
of  such  judgment  or  judgments  out  of  the  proceeds  of  the 
sale  of  such  share  or  shares  against  which  the  same  would  be 
a  lien,  had  such  share  or  shares  been  owned  in  severalty  by 
such  judgment  debtor  or  debtors,  and  in  the  same  order  of 
priority  as  if  sold  under  execution.-'' 

The  remedies  given  by  the  above  section  can  be  enforced 
at  law  only  after  the  estate  of  decedent  has  been  settled  before 
the   orphans'   court.   Ordinary,   or '  the    Court   of   Chancery.-' 

HEIRS    OR    DEVISEES    MAY    COMPEL    CONTRIBUTION. 

In  General. 

The  heir  or  de\isee,  whose  lands,  tenements,  hereditaments 
and  real  estate,  descended  or  devised  to  him,  have  been  sold 
for  the  payment  of  the  debt  of  his  intestate  or  testator  may 
compel  all  others  claiming  or  holding  under  such  intestate  or 
testator  to  contribute  in  proportion  to  their  respective  interest, 
so  as  to  equalize  the  burden  or  loss."^*^ 

^•'Orphans'   Court   Act,    sec.   96.  ^^Orphans'  Court  Act,  sec.  95.   3 

3  Comp.  Stat.,  3847.  Comp.  Stat.,  .3846. 

'■'Emson  v.  Allen,  62  N.  J.  L., 
491. 


CHAPTER  XXVIII. 

DISBURSEMENTS. 
PAYMENT   OF   DEBTS. 

In  General. 

As  the  legal  representative  of  the  estate,  an  executor  or 
admmistrator  is  authorized  to  pay  all  just  claims  against  it; 
and  while  he  acts  within  the  line  of  his  duty,  and  in  good 
faith,  every  fair  presumption  is  to  be  made  in  his  favor.  He 
is,  however,  but  a  trustee  for  others,  and  may  not  sacrifice  their 
rights  with  impunity.  If  he  pays  gfoundless  or  illegal  claims 
upon  the  estate,  he  must  bear  the  loss.  If  he  pays  disputed 
claims,  especially  after  being  warned,  he  acts  at  his  peril. 
Good  faith  and  regard  for  the  interests  of  the  estate  must 
characterize  all  his  actions.^  So  an  executor  may  pay  any 
1/  claim  against  the  estate  which  he  is  satisfied  is  just,  without 
requiring  a  statement  of  the  items,  or  that  it  be  sworn  to  ;- 
and  where  trustees  offered  evidence  that  expenditures  for 
repairs  to  the  trust  property  for  which  they  claimed  credit  in 
their  report  were  necessary,  that  the  work  was  actually  done, 
and  that  the  price  was  according  to  the  regular  course  of  trade, 
it  is  presumed  that  the  price  paid  was  reasonable,  and  evidence 
of  its  reasonableness  need  not -be  produced  \-^  but,  on  the  other 
hand,  the  mere  fact  that  a  creditor  swears  that  his  claim  is 
correct  will  not  justify  an  executor  in  paying  it,  if  he  has  reason 
to  believe  that  the  claim  is  an  unjust  one."  So  an  executor  who 
pays  debts  with  which  the  estate  in  his  hands  is  not  chargeable 
will  not  be  allowed  for  such  debts  in  his  account.'* 

^Egerton   v.   Egerton,    17   N.   J.  ^Egerton   v.   Egerton,    17   N.   J. 

Eq.,  419-423-  Eq.,  419. 

^Kinnan  v.  Wight,  39  N.  J.  Eq.,  ^Aldridge  v.  McClelland,  36  N.    ' 

501.  J.    Eq..    288.     Affirmed,   38    N.   J. 

-aln  re  Dreier's  Estate,  92  Atl.  Eq..  279. 
Rep.,  SI. 

520 


Disbursements.  521 

Payments   to   Foreign   Executor  or   Administrator   Before 
Letters  Granted  in  This  State  Valid. 

Any  payment  by  any  resident  or  citizen  of  this  state  to  any 
executor  or  administrator  appointed*  by  letters  obtained  in 
another  state  or  territory  of  the  United  States  or  District  of 
Columbia. "of  or  on  account  of  any  debt  due  to  his  or  her  testa- 
tor or  intestate,  made  before  letters  testamentary  or  of  adminis- 
tration sliall  be  actually  granted  in  this  state,  shall  be  as  valid 
and  effectual  as  if  made  to  an  executor  or  administrator  duly 
appointed  in  this  state ;  and  such  foreign  executor  or  adminis- 
trator may,  before  any  letters  shall  be  actually  granted  in  this 
state,  release  and  discharge  any  lands  or  other  security  from 
any  mortgage,  judgment  or  other  lien  or  en.cumbrance  which 
was  held  by  his  or  her  testator  or  intestate,  as  fully  and  to 
the  same  eft'ect  as  if  he  or  she  had  been  duly  appointed  in 
this  state. -^ 

Necessity  for  Allowance  of  Claim  by  Executor. 

To  justify  the  orphans'  court  in  allowing  a  claim,  it  must 
appear  that  the  executor  or  administrator  assented  to  or  recog- 
nized it  as  a  debt  due  from  the  estate. *■'  So  the  orphans'  court 
has  no  powder  to  allow  one  executor  the  amount  of  a  debt  which 
he  insists  is  due  him  from  testator's  estate,  if  his  co-executor 
disputes  its  payment." 

CLAIMS   FOR   SERVICES   RENDERED   TO   DECEDENT. 
In  General. 

A  claim  for  services  rendered  to  decedent  in  liis  lifetime 
may  be  allowed  against  his  estate,  whether  such  services  were 
rendered  upon  an  express  promise  for  a  fixed  payment,  or 
merely  as  meritorious  or  needful,  without  any  express  promise, 
but  with  the  expectation  of  reasonaljle  compensation  therefor;* 
but  an  executor  is  not  justified  in  paying  a  claim  against  the 

'•'2  Comp.  Stat.,  p.  2265,  sec.  19.  tween      Co-Executors"      p.      4^1, 

^Vreeland    v.    Vreeland,    16    N.  supra. 

J.  Eq..  512.    Middleton  v.  Middle-  «i8  CYC,  409.    Disbrow  v.  Dur- 

ton,  35  N.  J.  Eq.,  115.  and,  54  N.  J.   L..  343.     Frean  v. 

^Middleton  v.  Middleton.  35  N.  Hudson.  93  Atl.  Rep.,  582. 
T.  Eq..  115:    and  see  "Actions  be- 


522  Probate  Law  and  Practice. 

estate  for  services  rendered  in  the  lifetime  of  his  testator, 
where  services  rendered  by  the  parties  were  mutnally  bene- 
ficial, and  it  is  apparent  that  no  pecuniary  remuneration  was 
expected  or  intended.''  'Where,  however,  persons  were  induced 
to  support  the  testatrix  durin.g  several  years  by  her  fraudulent 
pretense  that  she  was  destitute,  when  in  fact  she  had  a  consider- 
able estate  in  bank,  they  will  be  entitled  to  be  recompensed  out 
of  the  estate  for  the  support  so  furnished  her.  ^" 

The  burden  is  upon  the  claimant  to  establish  the  fact  that  the 
services  were  not  rendered  gratuitously.^^ 

By  Persons  in  Family  Relation. 

Ordinarily,  where  services  are  rendered  voluntarily,  and 
accepted,  the  law  will  imply  a  promise  upon  the  part  of  the 
recipient  to  pay  for  them  ;  but  where  the  services  are  rendered 
by  members  of  a  family  living  as  one  household,  there  will 
be  no  such  implication  from  their  mere  rendition  and  accept- 
ance. In  order  to  recover  for  such  services,  the  claimant  must 
affirmatively  show  either  that  an  express  contract  for  the  re- 
muneration existed,  or  that  the  circumstances  under  which  the 
services  were  rendered  were  such  as  to  show  a  reasonable  and 
proper  expectation  that  there  would  be  compensation/-  The 
reason  for  this  exception  to  the  ordinary  rule  is  that  the  house- 
hold and  family  relationship  is  presumed  to  abound  in  recipro- 
cal  acts  of  kindness  and  good-will  which  tend  to  the  mutual 
comfort  and  convenience  of  the  members  of  the  family,  and 
which  are  gratuitously  performed  ;  and  where  that  relation- 
ship appears,  the  ordinary  implication  of  a  promise  to  pay  for 
services  does  not  arise,  because  thfe  presumption  which  supports 
such  implication  is  nullified  by  the  presumption  that  between 
members  of  a  household  such  services  are  gratuitously  ren- 
dered. Proof  both  of  the  services. and  of  the  family  relation 
leaves  the  case  in  equipoise,  from  which  the  claimant  must 
remove  it  or  fail.^^     So  when  a  daughter,  after  becoming  of 

"Egerton   v.   Egerton,    17   N.   J.  ^-Disbrow   v.   Durand,   54  N.  J. 

Eq-  419-  L.,  343- 

logggers  V.  Anderson,  63  N.  J.  i^Digi^row  v.  Durand,  54  N.  J 

Eq.,  264.  L.,  343. 

"Frean     v.     Hudson,     93     Atl. 
Rep.,  582. 


Disbursements.  523 

age,  cojuinues  to  reside  in  her  father's  family,  supported  by 
him  and  performing  useful  services  in  return,  the  law  will  not. 
except  under  special  circumstances,  imply  a  promise  on  the 
part  of  the  father  to  pay  for  such  services ;  if  she  demand 
compensation,  it  is  incumbent  on  her  to  show  affirmativelv  that 
compensation  was  to  be  made,  and  that  it  was  so  understood 
by  both  parties,  or  that  the  services  were  performed  under 
such  circumstances  that  the  expectation  of  compensation  there- 
for was  reasonable  and  proper.^* 

Although  the  law  presumes  that  the  relation  of  parent  and 
child  continues  to  exist,  in  the  absence  of  any  arrangement  to 
the  contrary,  when  the  child  continues  to  render  services  to 
the  parent  after  arriving  at  full  age,  yet  that  presumption  ceases 
when  it  is  shown  that  compensation  w^as  to  be  made,  and  that 
it  was  so  understood  by  both  parties,  or  that  the  services  were 
performed  under  such  circumstances  that  the  expectation  of 
compensation  was  reasonable  or  proper. ^^  So  where  a  daughter 
and  her  mother,  who  was  very  old  and  infirm,  lived  together, 
it  was  held  that  the  former  might  recover  compensation  from 
the  estate  of  the  latter  for  services  which  were  indispensable, 
on  the  ground  that  the  whole  question  is  one  of  intention,  and 
that  here  was  a  case,  not  of  an  emancipated  daughter  supported 
by  her  mother  and  rendering  services  to  the  household,  but  of 
the  rendering  by  the  daughter  to  an  old  and  helpless  mother  of 
necessary  services,  which,  if  not  rendered  by  her.  must  have 
been  obtained  from  a  stranger  for  compensation. ^^^  So  a  son 
is  entitled  to  compensation  from  the  estate  of  his  father,  for 
services  rendered  by  the  son  after  he  became  of  age.  under  an 
oral  agreement  that  such  services  should  be  paid  for  after  his 
father's  death. ^" 

The  great  majority  of  cases  in  which  this  exception  to  the 
ordinary  rule  has  been  applied  have  been  between  children 
and  their  ])arents.  or  the  representatives  of  the  parents'  estate, 

^^Ridgvvay  v.  English,  22  N.  J.  '''DeCamp     v.     Wilson.    31     N. 

I-.,   400.      Prickett   v.    Prickett.   20  J.  Eq.,  656. 

X.  J.  Eq.,  47.^.     Smith  v.  Sniitli.  30  ' "Updike  v.  Ten  Brorck.   t,2  N. 

N.  J.  Eq..  564.  [.  L..   105. 

^•''Updike  V.  Ten  Broeck.  32  N. 
T    T...  105. 


524  Probate  Law  and  Practice. 

and  that  fact  appears  to  have  led  some  of  our  courts  to  speak 
of  it  as  restricted  to  cases  where  a  relationship  by  blood  exists ; 
but  it  is  not  perceived  how  the  reason  of  the  exception  is  to 
be  limited  by  mere  propinquity  of  kindred.  The  rule  rests 
upon  the  idea  of  the  mutual  dependence  of  those  who  are 
members  of  one  immediate  family  ;  and  such  a  family  may 
exist  though  composed  of  remote  relations,  or  even  of  persons 
between  whom  there  is  no  tie  of  blood. ^®  Thus,  in  Updike  v. 
Titus,^'-*  Chancellor  Green  expressed  his  opinion  that  it  contem- 
plates "children,  parents,  grand-parents,  brothers,  step-children 
and  other  relations"  and  in  Horner  v.  JVebster,-'^  Justice 
Depue  approvingly  referred  to  the  exception  as  applicable  in 
all  cases  where  the  parties  stand  to  each  other  in  the  relation  of 
support  on  one  side  and  service  on  the  other. 

Agreement  to  Compensate  by  Will. 

Where  a  person  renders  services  to  another,  relying  solely 
upon  his  generosity,  and  expecting  to  be  compensated  by  a 
legacy,  he  cannot,  when  disappointed  in  his  expectation,  recover 
the  value  of  his  services;-^  but  if  there  be  an  express  promise 
to  pay  or  such  services  by  a  legacy,  recovery  may  be  had. 
In  such  case,  the  agreement  to  give  the  legacy  was  but  the 
method  adopted  of  paying  an  existing  and  admitted  obligation 
to  compensate  for  the  services;  and  if  testator  failed  to  pay 
in  the  manner  indicated,  the  person  performing  such  services 
is  entitled  to  recover  as  a  creditor.--  So  where  a  son  advanced 
money  for  the  support  of  his  mother  during  her  life,  under  an 
agreement  that  he  should  be  repaid  at  her  death  out  of  her 
estate,  it  was  held  that  his  claim  to  be  so  repaid  was  valid; 
and  in  a  case  where  the  son  procured  the  money  so  advanced 
from  his  wife,  agreeing  that  she  should  have  his  claim  against 

^^Disbrow   v.   Durand,   54  N.  J.  J.    L..   274.      Johnson    v.    Hubbell. 

t.,  343-  to  N.  J.  Eq..  332. 

'9i3  N.  J.  Eq.,  151.  "Stone   v.   Todd.   40   N.   J.    L., 

2033N    J    i^     387-411.  274.     Gay  V.  Mooney.  67  N.  J.  L.. 

^'Grandin  v.  Reading,   10  N.  J.  .7.     Duvale   v.   Duvale,   54   N.   J. 

Eq.,  370.     Smith   v.   Smith,  28  N.  Eq.,  581.     For  a  full  consideration 

J.  L.,  208.     S'one  V.  Todd,  49  N.  jf   this   subject,   see    11   L.   R.   N. 

S.,  873. 


Disbursements.  525 

his  mother  as  security  therefor,  she  was  liekl  to  l^e  entitled  to 
recover."^ 

The  burden  is  upon  the  claimant  to  prove  that  the  services 
were  not  rendered  gratuitously.-* 

CLAIMS   OF   SURVIVING   HUSBAND    OR  WIDOW   FOR 
MONEYS  LOANED  DECEDENT. 

Claim  of  Widow  for  Moneys  Loaned  Decedent. 

A  widow  mav  recover  from  her  husband's  estate  moneys 
which  she  loaned  him  during  his  lifetime  from  her  separate 
estate,  as  well  as  such  part  of  her  separate  estate  as  he  has 
received  otherwise  than  as  a  gift ;  but  such  recovery  can  only 
l)e  had  in  equity.-^  An  action  at  law  may,  however,  be  main- 
tained  on  the  promise  of  an  executor  to  pay'  moneys  advanced 
by  a  wife  to  her  husband,  though  no  action  would  He  for  the 
original  debt.-^  Where  decedent's  widow  is  executrix,  she 
may  retain  the  amount  of  her  advances.  -" 

Where  it  is  shown  that  property  of  the  wife  has  come  into 
the  hands  of  the  husband,  the  burden  is  upon  his  representative 
to  show  that  he  has  appropriated  it  according  to  her  direction, 
or  that  she  gave  it  to  him.-^  Where,  however,  a  husband 
receives  income  from  his  wife's  separate  estate,  which  he 
spends  with  her  knowledge  and  without  objection,  she  cannot 
recover  such  money  from  his  estate.-"     vSo  where  the  wife's 

-"Titus   V.    Hoagland,   39   N.   J.  44  N.  J.  Eq.,  64.    Affirmed,  45  N. 

£q.,  294.  J.   Eq.,   369.     Cole  v.   Lee,   45   N. 

-^Frean     v.     Hudson,     93     Atl.  J.  Eq.,  779-785. 
Rep.,  582.  -'-Rusling  v.   Rusling,   47   N.   J. 

-^Horner  v.  Webster,  33  N.  J.  L.,    i. 
L.,  387.     Rusling  V.  Rusling,  47  N.  -^Personette    v.    Personette,    35 

J.   L.,    I.     Vreeland   v.   Vreeland,  N.  J.  Eq.,  472. 
i6  N.  J.  Eq.,  512.    Harrall's  Case,  -*Horner  v.  Webster,  33   N.  J. 

31  N.  J.  Eq.,  loi.    Tresch  v.  Wirtz,  L.,  387.     Vreeland  v.  Vreeland,  16 

J4   N.  J.   Eq..    124.     Affirmed,   36  N.  J.  Eq.,  512.    Black  v.  Black,  30 

N.  J.  Eq.,  356.     Greiner  v.  Grein-  N.  J.   Eq.,  215.     Reversed,  31    N. 

er,  35  N.  J.  Eq.,  134.     Personette  J.  Eq.,  798.     Jones  v.  Davenport, 

V.   Personette,  35   N.  J.   Eq.,  472.  44    N.    J.    Eq.,    33-47-      Wood    v. 

Drost  V.  Corle,  41   N.  J.  Eq.,  45.  Chetwood,  44  N.  J.  Eq.,  64-68. 
Rusling  V.  Rusling,  42  N.  J.  Eq.,  -"Horner  v.  Webster,  33  N.  J. 

594.     Jones   V.   Davenport,  44   N.  L.,  387-406.     Jones  v.  Davenport, 

J.    Eq.,    33.      Wood    V.    Chetwood,  44  N.  J.  Eq.,  33. 


526  Probate  Law  and  Practice. 

money  is  eNpended  with  her  knowledge  for  her  husband's 
benefit,  it  will,  in  the  absence  of  an  agreement  to  pay,  be 
regarded  as  a  gift.^-' 

The  statute  of  limitations  does  not  run  against  a  claim  by 
a  wife  against  her  husband."^ 

Claim  of  Husband  for  Moneys  Advanced  to  Deceased  Wife. 

An  agreement  by  a  married  woman,  owning  a  separate  estate, 
with  her  husband  to  re-imburse  him  from  such  estate  for 
moneys  loaned  to  her,  or  paid  by  him  for  the  benefit  of  her 
estate,  on  the  faith  of  such  agreement,  and  at  her  request, 
will  be  enforced  in  equity  against  her  separate  estate. ^- 

DEBTS    BARRED    BY   LIMITATION. 
General  Rule. 

i_y  An  executor  or  administrator  may  pay  a  debt  which  is  just, 

though  it  be  barred  by  the  statute  of  limitations  f^  and  where 
an  action  is  brought  against  him  on  a  claim  so  barred  he  is 
not  bound  to  plead  the  statute."-'  But  a  book  account  of  the 
executor  against  the  testator  was  properly  rejected  when  the 
bulk  of  it  was  barred  by  the  statute  of  limitations  in  the  life- 
time of  the  testator,  and  every  presumption  was  against  the 
justice  of  any  part  of  the  claim. ■^•' 

Debts  Due  to  Personal  Representative. 

Wlien  a  personal  representative  has  a  claim  against  the 
estate  which  he  is  administering,  it  is  impossible  for  him  to 
enforce  the  claim  by  action  at  law  or  in  equity.  In  such  case, 
it  is  well  settled,  he  may  exercise  the  right  of  retainer  for  the 
satisfaction  of  his  claim,  if  the  claim  be  honest.  If  the  in- 
debtedness was  originally  honest,  it  is  not  rendered  dishonest 

■■•"Black  V.  Black,  30  N.  J.  Eq.,  ssp^jj-sel  v.  Pursel,  14  N.  J.  Eq., 

215.       Reversed,     31     N.    J.    Eq.,  514.     Heisler  v.   Sharp,  44  N.  J. 

798.     Young  V.   Young,  45  N.  J.  Eq.,  167-172. 

Eq.,  27-37.  •34Pm.sel  v.  Pursel,  14  N.  J.  Eq., 

siYeomans    v.    Petty.    40    N.   J.  514.      Boynton    v.    Sandford,    28 

Eq.,  495.     Alpaugh  v.  Wilson,  52  N.  J.  Eq..  184-186.     Affirmed,  ib.. 

N.  J.  Eq.,  424.    Affirmed,  ib.,  589.  592. 

32Healey    v.    Healey.    48    N.    J.  Sof^j^sel  v.  Pursel.  14  N.  J.  Eq., 

Eq.,  239.  5I4_ 


Disbursements.  527 

by  the  running  of  the  statute  of  limitations  for  the  prescribed 
period.  As  such  a  representative  might  with  impunity  decHne 
to  interpose  the  bar  vi  the  statute  against  an  honest  debt  due 
to  another  creditor,  he  may  exercise  the  right  of  retainer  to 
satisfy  his  own  claim  of  that  character;  and  the  orphans' 
court  cannot  disallow  such  a  claim  solely  on  the  ground  that 
the  statute  of  limitations  has  run  against  it.^*^* 

Representative  May  Waive  Bar. 

An  executor  or  administrator  may,  by  a  new  promise,  remove  ^--^ 
the  bar  of  the  statute  of  limitations.'"  An  acknowledgment 
t)y  an  executor  of  the  existence  of  a  debt  due  from  the  estate 
of  his  testator  will  bar  the  operation  of  the  statute,  provided 
such  acknowledgment  be  in  writing  ;^~^  and  a  promise  by  one  of 
several  executors  or  administrators  is  sutificient  to  remove  the 
Ijar  of  the  statute. ^^ 

A  promise  removing  the  bar  of  the  statute  may  be  proved 
against  executors  in  the  same  way  as  in  other  cases.^°  So 
letters  written  to  the  holder  of  a  note  by  the  personal  repre- 
sentative of  a  deceased  maker,  before  the  statute  had  run 
against  the  note,  referring  to  the  money  owing  to  the  holder  by 
the  writer  as  personal  representative,  and  requesting  the  holder 
to  w^ait  for  a  time,  and  containing  expressions  which  might  be 
construed  to  be  promises  to  pay  the  note,  are  admissible  to 
prove  a  written  acknowledgment  of  the  debt,  so  as  to  avoid 
the  statutory  bar  existing  at  the  commencement  of  the  suit ;" 
but  the  mere  fact  that  an  executor  includes  debts  not  yet  barred 
by  the  statute  of  limitations  in  representations  made  to  the 
orphans'  court  for  the  purpose  of  procuring  an  order  to  sell 
lands  to  pay  debts,  is  not  such  an  acknowledgment  as  takes 

•■«Wheedon  v.  Nichols,  72  N.  J.  263.     Whecdon  v.  Nichols,  72  N. 

Eq.,  366.  J.  Eq.,  366. 

^^Shreve  v.  Joyce,  36  N.  J.  L.,  soghreve  v.  Joyce,  36  N.  J.  L., 

44.     Everitt  v.  Williams,  45  N.  J.  44. 

I-.,  140,  at  p.  143.    Sahar  v.  Saltan,  '"Shrcve  v.  Joyce,  36  N.  J.   L., 

6  N.  J.  L.,  405-  44. 

-*Hewes  v.  Hurff,  69  N.  J.  L.,  ^'Hewcs  v.  Hurff,  69  N.  J.  L., 

263. 

35 


528  Probate  Law  and  Practice. 

such  debt  out  of  the  statute,  or  as  estops  the  administrator 
from  setting  up  the  bar  of  the  statute  against  it.*- 

Death  of  Debtor  Suspends  Statute  of  Limitations. 

Where  a  person,  against  whom  a  cause  of  action  has  accured, 
dies  before  the  action  is  barred  by  the  statute  of  Hmitations, 
the  running  of  the  statute  is  suspended  for  the  six  months 
next  succeeding  the,  death  of  such  person.*^ 

Prior  to  the  enactment  of  this  statute,  it  had  been  held  that 
section  65  of  the  Orphans'  Court  Act",  did  not  suspend  the 
operation  of  the  statute  of  hmitations.*^ 

Where  Personalty  Insufficient  to  Pay  Debts, 

Where  a  debt  is  barred  by  the  statute  at  the  time  of  testa- 
tor's death,  and  the  debt  must  be  satisfied  out  of  the  real 
estate,  no  acknowledgment  of  the  executor  or  administrator, 
will  bind  the  lands  in  the  hands  of  a  devisee.**^  It  is  otherwise, 
however,  where  the  claim  is  not  barred  by  the  statute  at  the 
time  of  testator's  death  ;*^  and  so  where  lands  of  decedent 
were  sold  under  partition  proceedings  more  than  one  year 
after  his  death,  and  the  proceeds  of  such  sale  were  paid  to 
the  executor  upon  his  application,  alleging  that  the  same  were 
necessary  for  the  payment  of  debts  of  the  estate,  it  was  held 
that  the  executor  might  pay  a  debt  barred  after  the  death  of  the 
decedent  by  the  statute  of  limitations,  from  the  proceeds  of 
such  sale.*® 

PREFERRED  DEBTS. 

In  General. 

The  order  of  priority  to  be  observed  in  the  payment  of  debts, 
at  common  law,  may  be  shortly  stated  as  follows  :  ist.  Funeral 
charges  and  expenses  of  administration,  etc.  2d.  Debts  of 
record.     3d.    Debts  by  specialty.     4th.    Simple  contract  debts. 

^-'Everitt  V.  Williams,  45   N.  J.  ^^Stark  v.  Hunton,  3  N.  J.  Eq., 

L.,  140.  300. 

*33  Comp.  Stat.,  3167,  sec.  9.  *'Stark  v.  Hunton,  3  N.  J.  Eq., 

■**Page  539.  infra.  300. 

•*"DeKay  v.  Darrah,  14  N.  J.  L.,  ^^First       Na.ional       Bank       v. 

288.  Thompson,  61  N.  J.  Eq.,  188. 


Disbursements.  529 

In  Xew  Jersey,  we  have  no  distinction  of  degrees  in  the  pay- 
ment of  dehts.  aside  from  the  preferences  given  by  the  statute^'', 
which  provides  that  judgments  entered  of  record  against  the 
decedent  in  his  Hfetime,  funeral  charges  and  expenses,  and 
the  physician's  bill  during  the  last  sickness,  shall  have  prefei^- 
ence  and  be  first  paid  out  of  the  personal  and  real  estate  of 
the  testator  or  intestate. ^° 

Judgments. 

An  executor  is  justified  in  paying  a  judgment,  irrespective 
of  the  character  of  the  claim  upon  which  it  is  founded,  unless 
fraud  in  obtaining  the  judgment  can  be  shown. ^' 

What  Judgments  Preferred. 

Judgments,  to  be  preferred,  must  be  actually  entered  of 
record  during  the  lifetime  of  the  defendant;^-  and  so  when  a 
rule  to  limit  creditors  has  been  taken,  and  upon  a  subsequent 
application  the  estate  has  been  declared  insolvent,  a  judgment 
obtained  between  the  time  of  taking  such  rule  and  making  such 
application  will  not  be  entitled  to  be  paid  in  preference  to  other 
debts.^" 

Decree  in  Equity. 

A  decree  in  equity  is  a  judgment,  and  as  such  stands  in  equal 
rank  with  a  judgment  at  law  in  the  distribution  of  assets  of 
an  insolvent  estate.^* 

Priorities  Between  Judgments. 

If  the  estate  be  insufficient  to  ]^ay  all  judgments,  distribution 
is  to  be  made  pro  rata:'-'    The  court  will  not  interfere  to  pre- 

■•"Haines   v.   Price,  20  N.  J.  L.,  Reporter's    Note    to    Second    Xa- 

480-483.      Second    National    Bank  tional  Bank  v.  Blauvclt,  44  N.  J. 

V.  Blauvelt,  44  N.  J.  Eq.,   173,  at  Eq.,   173. 

p.  177-                                                    '  ■"'■^Ryan   v.   Von    Arx,   46   N.   J. 

^"Orphans'   Couri   Act,    sec.   66.  L.,   S31. 

3  Comp.  Stat.,  3833.  •'■'* Second      National      Bank      v. 

■■'Pursel  V.  Pursel,  14  N.  J.  Eq.,  Blauvclt,  44  N.  J.  Ec].,  173  and  Re- 

514.    Smith  V.  Smith,  30  N.  J.  Eq.,  porter's  Note  to  \h. 

564-568.  •'■■■"Second      National      Bank      v. 

■•-Wood  v.  Hopkins.  2  N.  J.  L.,  I'.Ianvelt,  44  N.  J.  Eq.,  17- 
263.     .Affirmed,    ili..    693,    and    see 


530  Probate  Law  and  Practice. 

vent  the  payment  of  money  raised  by  an  execution  upon  a 
judgment  against  an  executor  of  an  insolvent  estate,  if  no 
proceedings  have  been  taken  in  the  orphans'  court  to  declare 
the  estate  insolvent;  until  such  proceedings  are  had,  judg- 
rrient  and  execution  creditors  are  entitled  to  be  paid  out  of 
the  estate  according  to  their  legal  priority.^** 

Funeral  Expenses. 

An  executor  is  bound  to  provide  for  his  testator  a  decent  and 
appropriate  burial.  Not  only  do  the  usages  and  necessities 
of  society  require  this  at  his  hands,  but  it  is  a  requirement  of 
the  law  also.  The  estate  in  the  hands  of  the  executor  or  ad- 
ministrator is  bound  by  law  for  the  payment  of  the  expense 
of  the  decent  interment  of  the  decedent ;  and  an  executor  or 
administrator,  if  he  have  sufficient  assets,  is  liable  upon  an 
implied  promise  to  another  person,  who,  as  an  act  of  duty 
or  necessity,  has  provided  for  the  interment,  if  the  funeral 
was  conducted  in  a  manner  suitable  to  the  rank  in  life  of  the 
decedent,  and  the  charge  is  fair  and  reasonable.^' 

In  case  of  the  death  of  a  married  woman,  the  duty  to  bury 
her  and  to  discharge  the  expenses  of  so  doing  devolves  upon 
her  husband,  if  he  survives  her ;  his  liability  for  the  expense  of 
the  interment  does  not  arise  by  virtue  of  any  interest  he  may 
have  in  the  wife's  property,  but  from  the  personal  advantage  it 
is  to  himself  to  have  his  wife  and  lawful  children  properly 
maintained  during  life  and  suitably  buried  at  death.  But 
common  decency  and  humanity  are  regarded  by  the  authorities 
as  authorizing  the  speedy  burial  of  a  decedent  by  any  proper 
person,  unobstructed  by  hesitation  in  measuring  the  responsi- 
bilities of  the  husband  and  the  representative  of  the  wife's 
estate;  and  it  has  been  held  that  where  a  married  woman  dies 
leaving  an  insolvent  husband  surviving  her,  a  proper  third 
person  who  has  borne  the  necessary  expense  of  her  suitable 
burial  may  recover  from  her  estate.^'"*    So  an  executor  is  justi- 

^'■Dibble  v.  Woodhull,  24  N.  J.  Eq.,  299.     Gould  v.  Moulahan,   53 

L.,  618;    and  see  Reporter's  Note  N.   J.   Eq.,   341.      Pierson   v.   Gar- 

to  Second  National  Bank  v.  Blau-  rison.  91   Atl.  Rep..  829. 

velt,  44  N.  J.  Eq..  173.  s^Gould  v.   Moulahan.  53  N.  J. 

5'Sullivan   v.   Horner,   41    N.   J.  Eq..  341. 


Disbursements.  531 

tied  in  paying  the  funeral  expenses  of  an  indigent  sister  of  the 
testator  for  whose  use  for  life  the  income,  and,  if  necessary, 
the  principal  of  one-half  of  his  residuary  estate  had  been  given. 
In  such  case  the  funeral  expenses  are  necessities  f^  and  the 
rule  has  been  extended  to  the  wife  and  children  of  decedent, 
when  all  perished  with  him  in  the  same  accident.''"  But  if  the 
funeral  expenses  are  paid  Ijy  a  mere  volunteer,  who  does  not 
take  an  assignment  of  the  undertaker's  claim,  he  will  not  be 
.entitled  to  be  subrogated  to  the  rights  of  the  undertaker.''' 

Priority  of  Funeral  Expenses. 

By  our  statute,  funeral  expenses  are  among  the  preferred 
claims.  Though  grouped  in  the  statute  with  other  claims,  also 
preferred,  they  are  entitled  to  preference  over  those  claims,  as 
they  were  at  common  law.  The  statute  does  not  take  away 
the  absolute  preference  which  the  common  law  accorded.  The 
reason  for  such  absolute  preference  still  exists  in  full  force"-, 
and  the  dictates  of  humanity,  no  less  than  the  decency  of  en- 
lightened society,  demand  that  this  rule  be  extended  to  the 
reasonable  funeral  expenses  of  the  wife  and  child  of  the 
decedent,  where  they  are  all  deprived  of  life  by  the  same  fatal 
stroke  and  are  buried  with  one  and  the  same  funeral,  even 
though  decedent's  estate  be  insolvent  f^  and  funeral  expenses 
are  preferred  to  a  debt  due  to  the  United  States  government.®'* 

Amount. 

In  the  case  of  an  insolvent  estate,  the  expense  of  the  funeral 
must  not  only  be  reasonable,  but  should  only  be  such  as  is 
necessary  for  a  funeral  conducted  in  a  plain  manner,  and  with- 
out the  superfluous  accessories  which  would  be  allowable  in 
case  the  estate  were  solvent.  The  rule,  as  against  a  creditor, 
is  that  no  more  shall  be  allowed  for  a  funeral  than  is  necessary  ; 
and  in  considering  what  is  necessary,  legard  must  be  had  to  the 

•''■'Wilson    V.    Staats,    33    N.    J.  N.   J.   Eq..   341.      Pierson   v.   Gar- 

Eq.,  524.  rison,  91  Atl.  Rep..  829. 

'■'^'Sullivan   v.    Horner,   4\    N.   J.  '''Sullivan   v.   Horner,   41    N.   J. 

Eq.,  299.  Eq.,  299. 

«'Fay  V.  Fay,  43  N.  J.  Eq.,  438.  •'♦U.   S.   v.  Eggleston,  4   Sawy.. 

"-Sullivan   v.  Horner,  41    N.  J.  199. 
Eq.,  299.     Gould  V.  Moulahan,  53 


532  Probate  Law  and  Practice. 

degree  and  condition  in  life  of  the  decedent/'^  When  the 
decedent  dies  away  from  home,  it  is  reasonable  that  his  body 
should  be  brought  home  for  interment,  and  to  the  expense  of 
transportation  may  reasonably  be  added  that  of  a  person  to 
accompany  the  body  for  the  purpose  of  superintending  the 
transportation.'^'^ 

Tombstone. 

Where  the  estate  is  solvent,  an  executor  or  administrator  may 
purchase  a  tombstone  reasonable  in  price  with  reference  to  the 
means  of  the  estate  ;  such  outlay  comes  properly  within  the 
item  of  funeral  expenses.*^* 

Burial  Plot. 

An  executor  will  be  allowed  the  reasonable  cost  of  a  ceme- 
tery lot  which  he  purchased  for  the  burial  of  decedent  and  in 
which  decedent  was  buried,  although  the  title  thereto  was 
taken  in  his  own  name.*^'-' 

Mourning  Apparel. 

Alourning  apparel  actually  used  at  the  funeral  and  suitable 
to  the  condition  in  life  of  deceased  will  be  considered  as  part 
of  the  funeral  expenses. '° 

Physician's  Bill. 

Where  a  legatee  was  entitled  to  the  income  of  a  certain 
amount  for  her  life,  with  a  limitation  over  to  A.  and  a  direction 
to  executors  to  accumulate,  upx)n  the  death  of  the  life  tenant 
it  was  held  that  first  the  physician's  bill  and  then  the  funeral 
expenses  must  be  taken  from  the  unexpended  part  of  such 
income  and  accumulation  before  its  payment  to  A.  ;"^  but  med- 
ical services  rendered  to  the  familv  of  an  intestate  after  his 

''■''Sullivan  v.  Horner,  41  N.  J.      J.   Eq.,   337.     Prey's    Case,   -jt,   N. 

Eq.,  299.  J.   Eq.,  346. 

6«Sullivan  v.   Horner,  41  N.  J.          ""Campfield  v.  Ely,  13  N.  J.  L.. 

Eq.,  299-303.  150;    and  see  Reporter's  Note  to 

s^Griggs    V.    Veglite.    47  N.    J.       Wilson    v.    Staats.   33    N.   J.    Eq., 

Eq.,    179.     Prey's   Case.   73  N.   J.      524. 

Eq.,  346.  "ipowler  v.  Colt.  22  N.   T.  Eq., 

69Birkholm    v.    Wardell,  42    N.      44. 


Disbursements.  533 

death,  upon  the  promise  of  the  administrator,  do  not  consti- 
tute a  lien  upon  the  assets  of  the  estate  in  the  hands  of  a  substi- 
tuted administrator. '- 

Debts  Due  to  State  and  to  the  United  States. 

Debts  due  to  the  state  are  not  preferred,  though  otherwise 
as  regards  debts  due  to  the  United  States  ;'^  but  funeral  ex- 
penses are  preferred  to  a  debt  due  to  the  United  States.'^ 

Debts  Due  to  Municipal  Corporations. 

Xo  preference  can  be  claimed  for  a  municipal  corporation 
over  other  creditors.'^ 

Claims    of    Executor    or    Administrator    for    Advances    to 
Estate. 

An  executor  who  pays  a  debt  of  his  testator  out  of  his  own 
funds  will  be  subrogated  to  the  rights  of  the  creditor;'''  and 
so  an  executor  who  pays  the  debts  and  fimeral  expenses  of 
his  testator,  for  the  discharge  of  which  there  is  no  personal 
estate,  is  entitled  in  equity  to  be  re-imbursed  out  of  the  real 
estate."'  So  where  the  orphans'  court  ordered  that  money 
which  had  been  advanced  by  an  executrix  to  pay  a  preferred 
claim  against  an  insolvent  estate  should  be  repaid  to  her  out 
of  the  assets,  it  was  held  no  error.'* 

Where  one  of  two  executors  qualifies  and  proceeds  alone 
with  the  administration  of  the  estate,  and  dies  after  he  has 

''^Johnston  v.  Morrow,  28  N.  J.  ""Woolley  v.  Pemlierton,  41  X. 

Eq.,  327.  J.    Eq.,   394.      Chamberlin    v.    ^Ic- 

'3Evans  v.  Walsh,  41   N.  J.  L.,  Dowell,  42  X.  J.  Eq.,  628.     Ha'm- 

281-282.     Board  of   Chosen   Free-  mond  v.  Cronkright,  47  X.  J.  Eq., 

holders    v.    State    Bank    of    New  447.      DeConcillio    v.    Brownrigg, 

Brunswick,  29  N.  J.  Eq.,  268.    Af-  51    X.    J.    Eq.,    532.      Suydam    v. 

firmed,  30  N.  J.  Eq.,  311.  Voorhees,  58  N.  J.  Eq.,  157.  Speer 

^•*U.   S.  V.   Eggleston.  4   Sawy.,  v.   Whitfield,    10   N.   J.   Eq.,    107 ; 

199.  See    also    "Claims    for    Advances 

^■''Evans  V.  Walsh,  41   X.  J.  L.,  Made  to  Estate  by  Deceased  Ex- 

281-282.     Freeholders   of   Middle-  ecutor,"   p.   570,   infra. 

sex  V.  State  Bank  of  Xew  Bruns-  ''Clayton   v.   Somers.   27  N.   J. 

wick,  29  X.  J.  Eq.,  268.    Affirmed.  Eq.,  230. 

30  N.  J.  Eq.,  31 1.  "^Chamberlin    v.    McDowell.    42 

X.  J.  Eq.,  628. 


534  Probate  Law  and  Practice. 

expended  in  such  administration  more  moneys  than  he  has 
realized  from  the  assets  of  the  estate,  and  then  the  co-executor 
quaUfies  and  continues  the  administration,  it  is  the  duty  of  the 
co-executor,  after  paying  the  expenses  of  the  administration,  to 
re-imburse  the  representatives  of  the  deceased  co-executor  for 
his  legitimate  expenditures  in  excess  of  his  receipts  from  the 
assets  of  the  estate ;  the  balance  due  to  the  deceased  executor 
is  not  a  debt  of  the  testator  which  may  be  barred  by  decree 
under  section  67  of  the  Orphans'  Court  Act,  but  a  part  of  the 
expense  of  the  settlement  of  the  estate.'''  So  where  a  debtor 
of  an  estate  advanced  money  to  the  executor  to  pay  pressing 
claims  against  the  estate,  the  executor  is  justified  in  repaying 
this  sum,  so  advanced,  to  the  debtor,  the  money  so  paid  having 
been  advanced  to  aid  the  executor,  with  the  understanding 
that  it  should  be  returned,  and  having  no  connection  with  the 
indebtedness  to  the  testator.®''  So  if  an  administrator  borrows 
money  from  a  bank,  which  was  one  of  the  creditors  of  the 
estate,  under  an  agreement  to  use  such  borrowed  funds  to 
pay  other  creditors,  who  were  pressing,  and  such  creditors 
were  so  paid,  upon  its  transpiring  that  the  estate  was  insolvent, 
the  bank  was  held  entitled  to  be  subrogated  to  the  rights  of 
such  creditors  as  were  paid  by  the  administrator  from  the 
funds  borrowed  from  it  to  the  extent  to  which  the  adminis- 
trator himself  would  liave  been  entitled  to  recover  for  moneys 
advanced  for  such  payments.*^  But  where  an  administrator  of 
an  insolvent  estate,  who  was  also  an  heir,  paid  claims  which 
were  charges  on  the  realty,  he  being  unauthorized  to  pay  such 
claims,  the  presumption  is  that  the  payment  was  not  as  ad- 
ministrator, but  as  heir;  and  therefore  creditors  who  had 
loaned  him  money  under  an  agreement  that  it  was  to  be  em- 
ployed in  paying  claims  against  the  estate  were  not  entitled 
as  against  other  creditors  to  be  subrogated  to  the  rights  of  those 
whose  claims  were  so  discharged,  though  such  right  might 
have  existed  as  against  the  heirs,  the  intestate  not  having  been 
bound  personally  to  pay  such  claims. ®- 

'9Dunn    V.    Campbell,   47   N.   J.  sipirst       National       Bank       v. 

Eq.,  4-  Thompson,  61  N.  J.  Eq.,  188. 

seWoofsey's  Case.  67  N.  J.  Eq.,  s^pirst       National       Bank       v. 

574-     Reversed,  68  N.  J.  Eq.,  763.  Thompson,  61  N.  J.  Eq.,  188. 


Disbursements.  535 

Partnership  Debts. 

Where  one  of  two  members  of  a  partnership  dies,  the  indi- 
vidual assets  of  the  deceased  member  must  be  first  apphed 
in  discharge  of  his  individual  debts ;  if  there  is  more  than 
sufficient  to  pay  them,  and  the  partnership  assets  are  not  suffici- 
ent to  pay  the  partnership  debts,  the  surplus  assets  of  the 
deceased  member  may  be  applied  to  the  payment  of  the  partner- 
ship debts  ;*"  but  this  principle  does  not  apply  to  creditors  who 
have  secured  their  debts  by  judgment  and  execution  liens.*** 

Expenses  of  Administration. 

The  expenses  of  administration  are  preferred  debts. ®^ 

Conflict  of  Laws.    ' 

Where  decedent  is  domiciled  in  one  country,  and  leaves 
personal  property  in  another,  and  the  laws  of  the  two  countries 
relating  to  the  priority  of  payment  of  claims  against  decedent's 
estate  differ,  the  rule  is  that  the  law  of  the  country  in  v\-hich 
the  assets  are  located  will  prevail.'^^ 

Power  of  Executor  to  Prefer  Creditors. 

An  administrator,  having  in  his  inventory  and  first  settle- 
ment of  accounts  treated  as  a  part  of  the  estate  of  the  intestate  a 
sum  of  money  which  he  knew  was  in  the  hands  of  his  intestate 
as  a  commissioner  for  the  sale  of  property,  but  which  he  there- 
after paid  to  the  persons  entitled  thereto  will  not  be  permitted, 
when  the  estate  proves  insolvent,  to  treat  such  money  as  a 
separate  trust  fund,  and  to  be  sul)rogated  to  the  rights  of  the 
person  to  whom  the  money  was  properly  ])aid.  Having  treated 
the  fund  frcjm  the  beginning  as  a  part  of  the  estate,  it  does  not 
lie  in  his  mouth,  after  ])aying  the  claim,  and  in  order  to  jiro- 

8"Davis  V.  Howell,  33  N.  J.  Eq.,  "''Haines  v.   Price,  20  N.  J.  L., 

7J.     Affirmed.  34  N.  J.  F.q.,  292.  480-484.    Dunn  v.  Campbell,  47  N. 

Greene   v.   Butterworth,  45   N.   J.  J.  Eq.,  4.     2  Williams  on  Execu- 

Eq.,  738.  tors,  850. 

''^Wisham  v.  Lippincott,  9  N.  J.  *^''Varniim  v.  Camp,  13  N.  J.  L., 

Eq.,  353.     Howell   v.  Tecl,  29   N.  ;^26.      Traveler's    Insurance    Com- 

J.  F.q.,  490.  pany  v.  Grant,  54  N.  J.  Eq..  208. 


^36  Probate  Law  and  Practice. 

tect  himself  from  loss  by  reason  of  the  insolvency  of  the  estate, 
now  to  insist  that  the  fund  was  never  a  part  of  that  estate.^' 

Preferred  Cairns  Must  be  Presented. 

A  creditor  holding  a  preferred  claim  against  an  insolvent 
estate  must  present  it  under  oath  within  the  time  limited  by 
the  order  of  the  court,  or  be  barred.*^ 

DISPUTED  CLAIMS. 

In  General, 

An  executor  or  administrator  of  an  estate  is  in  a  sense  a 
trustee  for  all  the  parties  interested  in  the  estate ;  and  it  is 
his  duty  to  protect  these  persons  against  every  demand  made 
against  the  estate  which  is  not  legally,  enforceable. ^°  It  is 
therefore  his  duty  to  dispute  any  claim  presented  to  him  which 
in  his  opinion  is  not  a  valid  claim  against  the  estate  which  he 
represents. 

Method  of  Disputing  Claims — By  Person  in  Interest. 

If  an  executor  or  administrator  allows  and  pays  a  claim, 
any  party  in  interest,  as  a  distributee  or  legatee,  may  contest 
it  by  filing  exceptions  to  his  account.'"' 

By  Personal  Representative. 

The  statute  provides  that  if  any  executor  or  administrator  to 
whom  any  claim  is  presented  dispute  the  same,  or  any  part 
thereof,  and  gives  notice  in  writing  to  the  creditor,  claimant, 
his  attorney  or  agent,  that  said  claim,  or  any  part  thereof,  is 
jj  disputed,  such  creditor  shall  bring  suit  therefor  in  three  months 
from  the  time  of  giving  such  notice ;  and  in  any  suit  not  com- 
menced within  said  time,  a  decree  barring  creditor  will  bar 
any  recovery  of  the  account  or  part  so  disputed,  as  if  said  debt 
or  claim  had  not  been  presented  within  the  time  so  limited  by 
said  court. ''^ 


«'Cooley    V.    Vansyckle.    14    N.  ^oKing  v.  Rockhill,  41  N.  J.  Eq., 

J.  Eq.,  496.  273,   and   see   "Exceptions   to   Ac- 

sspogg's  Case,  37  N.  J.  Eq.,  238.  count,''  p.  660.  infra. 

s^Winchell  v.  Sanger,  Ti  Conn.,  ^^ Orphans'   Court   Act,   sec.   71. 

399,  47  Atl.  Rep.,  706.  3  Comp.  Stat.,  3835. 


^^ 


Disbursements.  537 

The  provisions  of  this  section  are  not  limited  in  their  appH- 
cation  to  claims  presented  after  the  entry  of  a  rule  to  limit 
creditors ;  and  where  a  creditor  presents  his  claim,  and  notice 
that  the  claim  is  disputed  is  served  upon  him  by  the  executor, 
he  must  bring  suit  within  the  statutory  limitation,  or  be  barred 
under  the  provisions  of  this  section,  even  though  no  rule  to  limit 
creditors  had  been  taken  at  the  time  of  his  presenting  the 
claim,  provided  the  decree  barring  creditors  is  entered  while 
the  suit  is  still  pending/-'- 

Statute  includes  Suits  in  Equity. 

The  purpose  of  this  section  of  the  Orphans'  Court  Act  is  to 
effect  a  speedy  settlement  of  estates.  The  reciuirement  that 
"suit"  shall  be  commenced  within  three  months  from  the  time 
the  claim  is  disputed  contains  no  suggestion  that  an  action  at 
law  alone  is  contemplated.  The  term  "suit,"  though  frequently 
used  to  include  an  action  in  a  court  of  law,  as  well  as  in  a  court 
of  equity,  is  more  appropriately  applied  to  the  latter.  The 
well  recognized  spirit  and  purpose  of  the  provisions  of  the 
statue  under  consideration  also  idicate  that  the  intention  of 
its  f ramers  was  to  require  a  creditor  to  litigate  a  claim  for  the 
recovery  of  an  alleged  indebtedness  of  deceased  within  the 
time  specified,  without  limitation  as  to  the  court  in  which  his 
claim  of  indebtedness  should  be  appropriately  asserted.  With 
such  legal  legislative  purpose  in  view,  no  reason  suggests  itself 
why  the  statutory  requirements  should  not  be  held  to  include 
suits  in  equity  as  well  as  actions  at  law.''" 

Rejection  of  Claims  Must  be  Unequivocal. 

Statutes  pro\iding  short  limitations  for  actions  on  rejected 
claims,  and  for  barring  creditors  on  claims  not  duly  presented,  / 

are  generally,  if  not  universallv,  construed  to  l^e  penal  in  char- 
acter, and  cannot  be  invoked  on  behalf  of  the  personal  repre- 
sentative to  bar  suit  on  a  claim,  where  his  action  toward  the 

92Simons  v.  Forster,  TZ  N.  J.  L.,  "■"•Mathi?;  v.  Stevenson.  75  N.  J. 

338.      Affirmed,   suh    iioni.    Gargia       Eq.,  68. 
V.  Foster,  77  N.  J.  L..  802. 


:;38  Pkobatk  Law  and  Practice. 

creditor   in   relation   to   the   rejection   or   presentation   of   the 
claim  has  been  ambiguous  or  equivocal.'-*"' 

Effect  of  Notice. 

A  notice  that  a  claim  presented  is  disputed,  given  under  this 
section  is  not  a  waiver  of  the  defense  of  the  statute  of  limi- 
tations as  to  such  claim. ''^ 

Disputed  Claim  on  Bond  and  Mortgage. 

If  under  an  order  to  limit  creditors  a  verified  claim  on  the 
bond  of  a  deceased  obligor  be  presented  to  his  legal  repre- 
sentatives, and  they  serve  notice  disputing  the  same,  a  suit  may 
be  brought  on  the  bond,  without  first  foreclosing  an  accom- 
panying mortgage,  notwithstanding  the  statutory  requirement 
that  in  all  cases  where  a  bond  and  mortgage  shall  be  given 
for  the  same  debt,  all  proceedings  to  collect  said  debt  shall  be 
first  to  foreclose  the  mortgage,  and,  after  sale,  to  proceed  on 
the  bond  for  the  deficiency.""  Such  a  suit  is  not  a  proceeding 
to  collect,  but  only  to  ascertain  the  debt.  In  such  a  case,  the 
statute  stays  only  execution."'  Where  a  claim  upon  a  bond  ■ 
secured  by  a  mortgage  was  presented  to  the  personal  repre- 
sentatives of  deceased,  who  gave  notice  that  the  claim  was  dis- 
puted and  that  they  rec^uired  suit  to  be  brought  thereon  within 
three  months  and  no  suit  was  brought  within  that  time  and  a 
decree  barring  creditors  was  entered,  but  within  the  three 
months  a  bill  was  filed  to  foreclose  the  mortgage,  and  the  mort- 
gaged premises  sold  under  a  decree  entered  in  that  suit,  from 
which  sale  a  deficiency  resulted,  and  within  six  months  from 
such  sale  an  action  was  brought  to  recover  such  deficiency,  it 
was  held  that  as  the  holder  of  the  bond  might  have  brought  his 
action  at  law  thereon  against  the  executor,  notwithstanding 
the  statute"^  the  mortgagee  could  not  maintain  a  suit  against  the 
estate  for  such  deficiency."" 

''^Seymour  v.  Goodwin,  68  N.  J.  983  Comp.  Stat.,  p.  3420,  sec.  47. 

F.q..   189,  at  p.   197.     Affirmed,  69  "^Ware  v.   Weatherby's  Execu- 

N.  J.  Eq.,  833.  tors,  45  Atl.  Rep.,  914.     See  also 

"•'■Everitt  v.  Williams,  45  N.  J.  "Claim  Secured  by  Mortgage,"  p. 

T,.,  140-145.  564,    infra,    and    "Claim    for    De- 

^"3  Comp.  Stat.,  p.  3420,  sec.  47.  ficiency  on  Foreclosure  of  Mort- 

''"Weatherby    v.    Sparks,   63    N.  gage,"  p.  568.  infra. 
J-  L.,  445- 


DiSBURSEMEXTS.    *  539 

No  Action  to  be  Brought  Against  Executor,  &c.,  for  Six 
Months. 

To  enable  executors  or  administrators  to  examin.e  into  the 
condition  of  the  estate  and  ascertain  the  amount  and  vahie 
thereof,  and  the  debts  to  be  paid  out  of  the  same,  no  action, 
either  at  law  or  in  equity,  except  for  funeral  expenses,  shall  / 
be  brought  or  maintained  against  executors  or  administrators  ^ — ^ 
of  the  estate  of  any  decedent,  within  six  months  after  probate 
shall  have  been  granted  to  such  executor  or  executors  in  case 
of  a  will,  or  letters  of  administration  shall  have  been  granted 
to  such  administrator  or  administrators  in  case  of  intestacv. 
or  with  a  will  annexed,  as  the  case  may  be,  unless  by  special 
leave  of  the  court  wherein  such  action  is  intended  to  be 
brought:  provided,  no  execution  shall  issue  on  any  such  judg- 
ment within  the  six  months  aforesaid/ 

Statute  Does  Not  Apply  to  Foreclosure  Suit. 

The  plain  design  of  the  act  is  to  afiford  the  executor  or  ad- 
ministrator an  opportunity  to  see  whether  the  estate  committed 
to  his  administration  is  sufficient  to  pay  the  debts  of  the 
decedent  in  full  or  not,  and,  if  it  is  not,  to  enable  him  to  insti- 
tute such  proceedings  as  shall  secure  an  equal  distribution 
of  the  estate  among  the  creditors,  and  prevent  one  or  more 
of  them  from  acquiring  by  suit  a  preference  over  the  others. 
Hence  it  seems  plain  that  as  a  suit  to  foreclose  a  mortgage  of 
the  decedent  to  which  an  executor  or  administrator  is  made  a 
party  defendant,  but  in  w^iich  no  relief  is  sought  against  either 
the  personal  representative  or  the  estate,  is  not  designed  to 
charge  or  attack  the  estate  committed  to  his  administration, 
and  as  no  judgment  can  be  i^ronounced  or  decree  made  in  such 
suit  which  will  attack  the  estate,  such  suit  is  not  within  the 
reason  or  the  policy  of  the  statute. - 

Waiver  of  Statute. 

If  the  executor  or  administrator  permits  a  suit  commenced 
before  the  expiration  of  the  six  months  to  proceed  to  final  de- 

' Orphans'  Court  Act,  sec.  65.  3  Eq.,  166.  United  vSecurity  Life 
Comp.  Stat.,  3832.  Insurance    Co.    v.    Vandegrift,    51 

^Ayres    v.    Shepherd,    64    K.    J.       N.  J.  Eq.,  400. 


540 


Probate  Law  and  Practice. 


cree,  the  court  is  bound  to  assume,  in  the  absence  of  proof  of 
accident  or  inadvertence,  that  he  intended  to  waive  the  defense 
given  by  the  statute.^ 

Jurisdiction  of  Orphans'  Court. 

The  orphans'  court  has  no  authority,  except  in  the  case  of  an 
insolvent  estate,*  or  upon  an  appHcation  for  the  sale  of  lands 
to  pay  debts,-'  to  try  disputed  claims  and  to  determine  who 
are  and  who  are  not  creditors  of  decedent's  estate;  but  by  a 
disputed  claim  here  is  meant  a  claim  which  is  disputed  by  the 
executor  and  administrator,  and  not  a  claim  which  the  legatee 
or  next  of  kin  may  deem  unfounded. 

Claim  Disputed  by  One  of  Several  Accountants. 

The  orphans'  court  has  no  power  to  allow  one  executor  the 
amount  of  a  debt  which  he  insists  is  due  him  from  tlie  tes- 
tator's estate,  or  of  a  fee  which  he  claims  to  have  paid  counsel 
for  advice  in  regard  to  the  estate,  if  his  co-executor  dispute 
their  payment." 

Power  of  Executor  to  Compromise  Claim  against  Estate. 

An  executor  may  compromise  a  law  suit,  he  may  buy  the 

I   J    peace   of   the   estate   he   represents,   and   extinguish    doubtful 

claims   against   it,   provided   he   acts    discreetly   and   in   good 

faith;"   and  this  even  where  the  devisees  or  legatees  object  to 

such  compromise,  and  notify  the  executor  to  contest  the  claim. ^ 

Power  of  Executor  to  Submit  Claims  Against  Estate  to 
Arbitration. 

An  executor  or  administrator  may  submit  claims  against 
the  estate  to  the  award  of  arbitrators,  and  will  be  bound  by 

"Boynton  v.  Sandford,  28  N.  J.  "Meeker    v.    Vanderveer,    15    N. 

Eq.,    184.      Afifirmed,    ib.,    592.  J.  L.,  392.     Rogers  v.  Hand,  39  N. 

*See     "Jurisdiction     of      Court  J.  Eq.,  270.     Heisler  v.  Sharp,  44 

over    Disputed    Claims,"'    p.    594,  N.    J.    Eq.,    167-172.      Manns    v. 

infra.  Sanford  Co.,  82  N.  J.  L.,  124. 

•■^P.    L.    1910,    p.    517,    3    Comp.  ^Rogers  v.  Hand,  39  N.  J.  Eq., 

Stat.,  3842,  sec.  83a,  p.  477,  supra.  270.     For  additional  cases  on  this 

^Middleton  v.  Middleton,  35  N.  subject,    see    Reporter's    Note    to 

J.  Eq.,  115.    See  also  "Actions  be-  Rogers    v.    Hand,    39    N.    J.    Eq., 

tween      Co-E-xecutors,"      p.      421,  270-271. 
supra. 


Disbursements.  :;4i 

the  award  and  may  enforce  payment  against  the  other  party; 
but  those  interested  in  the  estate  will  not  be  bound  by  the 
award.  So  if  an  administrator  submit  a  controversy  to  arbi- 
tration, and  the  estate  thereby  suffers  loss,  it  binds  him.  and 
amounts  to  a  devastavit  by  him  to  the  extent  of  the  loss ; 
but  until  the  award  is  shown  to  be  erroneous,  it  is  prima  fade 
evidence  of  the  validity  of  the  claim."  Where  an  adminis- 
trator in  his  representative  capacity  enters  into  a  submis- 
sion of  arbitration,  and  binds  himself  and  his  heirs  to  per- 
form the  award,  he  cannot  avail  himself  thereafter  of  a  plea  of 
want  of  assets,  but  is  bound  to  perform  the  award  whether 
he  has  assets  or  not;  but  this  rule  cannot  prevail  over  the 
clear  intention  of  the  parties  as  found  upon  the  face  of  the 
submission.'"  The  Court  of  Chancery  will  restrain  a  trustee 
from  submitting  to  arbitration  a  question  in  which  the  cestui 
que   trust  alone   is   interested,   without   the   latter's   consent. '^ 

ADVANCES  TO  PAY  DEBTS. 
By  Executors  or  Administrators. 

An  executor  or  administrator  who  pays  the  debts  of  his 
decedent  is  entitled  to  an  allowance  therefor  in  his  account  ;'' 
such  executor  or  administrator  is  entitled  to  be  re-imbursed  out 
of  the  real  estate/'  and  if  the  estate  prove  to  be  insolvent,  he 
will  be  subrogated  to  all  of  the  rights  of  the  creditors  for  the 
payment  of  v/hose  claims  he  advanced  the  money.'*  So  where 
an  executor  or  administrator  makes  advances  to  the  estate 
of  decedent  in  excess  of  assets  received  by  him,  and  then 
dies,  the  claim  of  his  administrator  for  such  advances  is  not 
one  which  can  be  barred  by  a  decree  barring  creditors,  since 

^Crum   V.  Moore,   14  N.  J.  Eq.,  X.  J.  Eq..   188.     Suydam  v.  Vnnr- 

436.  hees,  58  N.  J.  Eq.,   157. 

lOMcKecn  v.  Oliphant,  18  N.  J.  '■''Clayton   v.    Somers,   27   X.   J 

L-  442.  Eq..   230.  and   see  "Debts   Due  to 

"Crum  V.  Moore,  14  X.  J.  Eq.,  Accountant   for  .Advances  to   Es- 

436.  tate."  p.  484.  supra.    First  Xation- 

' -Clayton   v.    Somers,   27   N.   J.  al    Rank   v.    Thompson.   6r    N.   J. 

Eq.,     230.       Chamherlin     v.     Ale-  Eq.,  188. 

Dowell.  42  X.  J.  Eq..  628.     Dunn  i-'See  "Preferred  Debts— Claims 

V.  Campbell,  47  X.  J.  Eq.,  4.  First  of  Executors,  &c.  for  Advances." 

Xational    Hank    v.    Thompson,    6t  p.  533,  supra. 


542  Probate  Law  and  Practice. 

an  executor  who  pays  a  debt  of  his  testator  with  his  own 
funds  will  be  subrogated  to  the  right  of  the  creditor  ji'^  but 
an  administrator  who  advances  money  to  pay  claims  against 
the  estate  is  entitled  to  re-imbursement  only  as  to  such  claims 
as  were  rightfully  paid.^** 

Interest  on  Advances  by  Accountant. 

A  charge  of  interest  by  an  executor  or  administrator  will 
be  viewed  with  caution,  and  the  circumstances  alleged  to  sus- 
tain it  will  be  examined  with  scrupulous  care ;  but  circum- 
stances may  exist  which  will  not  only  justify  but  commend 
an  advance  of  money  by  the  administrator,  and  entitle  him 
to  an  allowance  of  interest/' 

Advances  by  Third  Persons. 

Persons  dealing  with  representatives  of  deceased  persons 
are  presumed  in  law  to  be  fully  apprised  of  the  extent  of  their 
authority  to  act  in  behalf  of  the  estate  which  they  represent, 
and  to  know  that  they  have  no  authority  as  such  to  make 
new  contracts  which  will  bind  the  estate  in  their  charge ;  such, 
for  example,  as  contracts  for  the  loan  of  money,  even  upon 
the  pretense  that  it  is  needed  for  the  payment  of  debts.  Third 
persons,  therefore,  who  have  made  advances  to  an  executor 
or  administrator  to  enable  him  to  pay  the  debts  of  the  estate 
which  he  represents  must  ordinarily  look  to  such  representative 
personally  for  re-imbursement.  Yet  if  the  personal  repre- 
sentative would  be  entitled  to  re-imbursement  from  the  estate 
for  his  payment,  and  he  is  insolvent,  equity  will  subrogate  the 
persons  so  advancing  to  the  rights  of  the  personal  representa- 
tive, and  allow  them  to  be  paid  directly  out  of  the  estate.^* 
So  where  an  administrator,  who  was  conducting  the  business 
owned  by  his  intestate,  agreed  with  a  bank,  which  was  also 
a  creditor  of  the  estate,  that  if  it  would  discount  a  note  for 

i"'Dunn    V.    Campbell,   47   N.   J.  ^'Liddel  v.  McVickar,   11  N.  J. 

Eq.,  4.  L.,  44- 

^"First  National  Bank  of  Free-  ^''First       National       Bank       v. 

hold  V.  Thompson,  61  N.  J.  Eq..  Thompson,  61  N.  J.  Eq..  188.  De- 
188.  Concillio   v.   Brownrigg.   51   N.   J. 

Fa..  532. 


DiSBURSEMEXTS.  543 

him  he  would  pay  other  creditors  of  the  estate,  who  were 
pressing,  and  the  creditors  were  so  paid,  and  it  transpired  that 
the  estate  was  insolvent,  it  was  held  that  the  bank  was  entitled 
to  be  subrogated  to  the  claims  of  the  paid  creditors  to  the  ex- 
tent to  which  the  administrator  himself  would  have  been  en- 
titled to  recover  for  moneys  advanced  for  such  payments. ^^ 
Where,  however,  a  creditor  of  an  estate  advances  money  to 
the  administrator  to  pay  oil  certain  debts,  the  creditor  can- 
not claim  to  be  reimbursed  from  the  estate  as  to  a  portion  of 
the  sum  advanced  which  the  administrator  used  for  individual 
purposes,  although  the  agreement  was  that  it  was  all  to  be  used 
for  the  estate.-" 

CLAIMS  OF  EXECUTORS  OR  ADMINISTRATORS. 

Right  to  Retain  Assets  in  Payment. 

As  has  been  said  above,  the  rule  is  well  settled  that  if  a 
creditor  becomes  the  executor  or  administrator  of  his  debtor's 
estate,  he  may  retain  the  amount  of  a  debt  due  him  from  the 
estate  of  decedent.-^  An  administrator  pendente  lite,  or  other 
special  administrator,  may  exercise  this  right,--  and  the  right 
extends  to  each  of  several  co-executors ;- '  but  by  refraining 
from  exercising  his  right  of  retainer,  an  executor  who  is  an 
alleged  creditor  of  his  decedent's  estate  does  not  thereby  mis- 
lead a  legatee  in  any  way  whereby  an  equitable  estoppel  is 
raised  against  such  creditor  in  his  lifetime,  or  against  his  per- 
sonal representative  after  h's  decease.-* 

The  right  of  retainer  exists  solely  ]jy  operation  of  law. 
Where  an  executor  exercises  it,  he  does  so  subject  to  inquiry 
in  the  orphans'  court,  or  other  tribunal  which  passes  upon  his 

i^First       Xational       Bank       r.  ^-^attoon      v.      Overacker,      8 

Thompson,  61  N.  J.  Eq.,  188.  Johns.    (N.   Y.).    126.     Franks   v. 

20First       Xational       Bank       v.  Cooper,  4  Ves.  Jr..  -/Gi,.     (31  F.ng. 

Thompson.  61  X.  J.  Eq.,  188.  Reprint.  394). 

2iSnowhill  V.  Snowhill.  2  X.  J.  ^''Decker  v.  Miller,  2  Paige  (N. 

Eq.,  30.     Dohnan  v.   Cook.    14   X.  ^'.),    149.      Kent    v.    Pickering,    2 

J.  Eq.,  56.     Personette  v.  Person-  Keen   i.     48  Eng.  Reprint,  528. 

ctte,  35  N.  J.  Eq..  472.     Kinnan  v.  =^0'Donnell   v.   ATcCann.  77   N. 

Wight,  39  X.  J.  Eq.,  501.     Frey's  J.  Eq.,   188. 
Case,  73  K.  J.  Eq.,  346. 
36 


544  Probate  Law  and  Practice. 

account,  as  to  the  validity  of  his  claim;  and  such  court  has 
jurisdiction  to  pass  upon  the  legality  of  his  action  in  retain- 
ing for  his  debt.-^  It  seems  that  the  right  of  retainer  can 
only  be  exercised  where  the  account  of  the  executor  is  before 
the  court  for  the  purpose  of  having  a  settlement  thereof. 
This  right  would  therefore  not  be  recognized,  where  it  would 
simply  operate  as  a  set-oft'.-'^ 

Priority  Over  Other  Claims. 

While  the  right  of  retainer  by  an  executor  or  administrator 
is  undoubted,  he  is  not  entitled  to  retain  the  amount  of  his 
claim,  until  it  is  made  to  appear  whether  the  estate  is  solvent 
or  insolvent.  If  the  estate  prove  insolvent,  his  claim  will  be 
subordinate  to  claims  of  preferred  creditors,  and  will  only  be 
admitted  on  the  same  basis  with  other  claims  of  equal  de- 
gree ;-'  and  so  in  an  accounting  by  a  removed  executor,  he 
cannot  be  allowed  for  the  retainer  of  a  claim  against  the  es- 
tate made  by  himself,  if  it  has  not  then  appeared  that  the  estate 
is  clearly  solvent.-^ 

To  What  Claims  Right  Extends. 

An  executor  or  administrator  may  retain  any  valid  claim 
against  the  estate  of  his  decedent,  irrespective  of  the  nature 
of  such  claim ;  thus,  where  decedent's  widow  is  his  executrix, 
she  may  retain  the  amount  of  advances  made  by  her  to  her 
husband  in  his  lifetime  from  her  separate  estate.-^  So  where 
the  original  relationship  between  the  decedent  and  the  ex- 
ecutor was  that  of -debtor  and  creditor,  recognized,  before 
testator  became  insane,  by  the  payment  and  receipt  of  money 
on  account  of  such  indebtedness,  the  law  will  not  presume 
that   additional   services   afterwards    rendered   to   the   lunatic 

25Kinnan    v.    Wight,    39    N.    J.  483.     In   re   Wiley.  65   Atl.   Rep., 

Eq.,   501.     O'Donnell  v.   McCann,  212. 

■j7    N.    J.    Eq.,    188-201.  -'sMiddleton  v.  Carter,  73  N.  J. 

^sDolman  v.  Cook,  14  N.  J.  Eq.,  Eq.,  624.     Affirmed,  74  N.  J.  Eq., 

56-68.  853. 

-^Dolman  v.  Cook,  14  N.  J.  Eq.,  -^Personette    v.    Personette,    35 

56.    Frey's  Case,  73  N.  J.  Eq.,  346.  N.  J.  Eq.,  472;  see  also  "Claims  ot 

Haines  v.  Price,  20  N.  J.  L.,  480-  Widow  for  Moneys  Loaned  De- 
cedent," p.  525,  supra. 


Disbursements.  545 

were  intended  as  a  gratuity,  and  the  executor  is  justified  in  re- 
taining the  balance  due  him  f"  but  a  charge  by  an  executor 
against  the  estate  of  his  testator  for  services  rendered  dur- 
ing the  hitter's  Hfetinie,  in  a  case  where  there  is  not  the  shght- 
est  intimation  that  during  that  time  it  was  expected  or  in- 
tended that  such  charge  would  be  made,  will  not  be  allowed.^^ 
An  executor's  right  of  retainer  extends  to  debts  due  to  him 
jointly  with  others,  or  in  the  character  of  trustee,  as  well  as  to 
those  which  are  due  to  him  solely  and  in  his  own  right  f-  but 
an  executor  largely  indebted  to  his  testator's  estate  will  not 
be  allowed  to  pay  to  himself  out  of  the  cash  in  his  hands 
a  claim  that  he  holds  against  the  estate,  but  will  be  required 
to  set-off  his  claim  and  indebtedness."'^ 

ASSETS  FROM  WHICH   DEBTS  ARE  TO   BE  PAID. 

In  General.        ' 

In  the  absence  of  any  provisions  to  the  contrary  in  the  will, 
personal  property  is  the  primary  fund  for  the  payment  of 
debts;  specific  legacies  must  yield  to  this  payment,  and  lands 
will  not  be  ordered  sold  to  pay  debts  when  it  appears  that  suf- 
ficient personalty  came  to  the  hands  of  the  executors  to  enable 
them  to  make  such  payment.  The  personalty  will  not  be  ex- 
onerated from  the  primary  liability  merely  because  the  tes- 
tator has  evinced  a  purpose  to  charge  his  debts  upon  his  real 
estate,  unless  he  has  clearly  indicated  an  intention  to  discharge 
his  personalty  therefrom.^*  In  order  to  exonerate  the  general 
personal  estate  from  being  applied  to  the  payment  of  the  debts, 
or  to  postpone  its  primary  use  for  that  purpose,  there  must 

^oWaldron    v.    Davis,    70   N.    J.  Due  to   Personal  Representalive," 

L.,  788.  p.  526,  supra. 

•'-lEgerton  v.  Egerton,   17  N.  J.  ^i-y^liitej^gafj     y      Gibbons,      10 

Eq.,  419-  N.  J.  Eq.,  230.     Shrove  v.  Shreye, 

•'•-Hosack    V.    Rogers,    6    Paige  10  N.  J.  Eq.,  385.     Reversed,    17 

Ch.,    415.      Reversed,     18    Wend.,  N.  J.   Eq.,  487.     Winants  v.  Tcr- 

.119-  liunc,   15  N.  J.  Eq.,  185.    Keene  v. 

■■'-Tcrhune    v.    Oldis,    44    N.    J.  Munn,  16  N.  J.  Eq.,  398.    Slack  v. 

Eq.,  146.    As  to  right  of  executor  Emery,  30  N.  J.  Eq.,  458-461.  Hig- 

or  administrator  to  retain  a  claim  bie  v.  Morris,  53  N.  J.  Eq..   173- 

which    has    been    barred    by    the  177.    Ford  v.  Westervelt,  55  N.  J. 

statute   of   limitations,   sec  "Deljts  I'"q.,  485. 


540  Probate  Law  and  Practice. 

be,  an  express  direction  or  a  necessary  implication  in  the  will.^^ 
So  a  creditor  of  a  deceased  person  cannot  maintain  a  bill  to 
set  aside  as  fraudulent  a  conveyance  of  the  decedent's  lands, 
when  the  bill  shows  that  the  personalty  of  the  deceased  is 
ample  to  pay  his  debts."'"' 

When  Debt  is  Secured  by  Mortgage. 

The  personal  estate  is  primarily  liable,  even  where  the  debt 
is  secured  by  mortgage ;  and  the  heirs-at-law  or  devisees  may 
call  upon  the  executor  to  exonerate  the  land  by  discharging 
the  mortgage  debt  out  of  the  personal  estate.-'''  This  is  the 
rule  even  where  the  devise  is  of  all  the  testator's  "right,  title 
and  interest"  in  the  lands  on  which  there  is  a  mortgage  f'^  but 
the  mortgagee  or  alienee  of  the  heir  or  devisee  has  no  such 
equity ;  the  principle  is  adopted  in  favor  of  the  heir  or  de- 
visee alone.""  But  where  a  testator  .or  intestate  purchases 
lands  subject  to  a  mortgage,  or  assumes  a  mortgage  on  lands 
purchased  by  him,  the  mere  assumption  of  the  mortgage  is  not 
such  proof  of  an  intention  to  make  the  debt  his  own  as  to  ren- 
der his  personal  estate  pecuniarily  liable  therefor,  unless  the 
decedent  shall  have  assumed  the  debt  in  such  manner  as  to 
show  an  intention  to  charge  his  personal  estate ;  making  him- 
self or  his  representative  liable  to  be  called  on  by  the  mort- 
gagee is  not  sufficient  of  itself  to  charge  the  personal  estate  in 
exoneration  of  the  lands. ^"^  And  it  is  only  from  the  residuary 
personal  estate  that  a  devisee  can  demand  that  a  mortgage  on 
lands   devised  to  him  be  paid;    after  the  exhaustion  of   the 

"5Whi;ehead   v.   Gibbons,   lO  N.  "*Higbie    v.    Morris.    53    N.    J. 

J.  Eq..  230.     Higbie  v.  Morris,  53  Eq..  173. 

N.  J.  Eq.,  173-177.     Bird  v.  Haw-  '"Keene  v.  Alunn.   16  X.  J.  Eq., 

kins.   58   N.  J.  Eq.,   229.  398.     Krueger  v.  Ferry.  41    N.  J. 

3'^'Rutherford  v.  Alyea.  54  N.  J.  Eq.,  432.     Affirmed.  43  X.  J.  Eq., 

Eq.,  411.  295. 

3'Keene  v.  Munn.  16  X.  J.  Eq.,  ^"Hetzel  v.  Hetzel,  74  X.  J.  Eq., 

398.      Campbell    v.    Campbell,'   30  770.     McLenahan  v.    McLenahan, 

X.  J.  Eq.,  415.     Krueger  v.  Ferry,  18    X.    J.    Eq.,    loi.      Campbell   v. 

41  X.  J.  Eq..  43^.     Affirmed,  43  X.  Campbell,     30     X.     J.     Eq.,     415. 

J.  Eq.,  295.     Coudert  v.  Condert,  Mount  v.  VanXess,  33  X.  J.  Eq., 

43  X.  J.  Eq..  407.     Bacon  v.  De-  262.     Birkholm  v.  Wardell,  42  X. 

vinney,  55  X.  J.  Eq.,  449.  J.  Eq..  337-     Smith  v.  Wilson,  79 

X.  J.  Eq.,  310. 


Disbursements.  547 

general  residuary  fund,  the  devisee  of  the  mortgaged  lands 
cannot  call  for  contribution  either  on  general  or  on  specific 
legatees.*^ 

An  examination  of  the  cases  cited  in  support  of  the  fore- 
going discloses  the  fact  that  the  rules  there  laid  down  have 
l>een  approved  by  the  Court  of  Errors  and  Appeals  in  several 
instances,  notwithstanding  the  fact  that  in  the  case  of  Smith  z'. 
Wilson*'-  the  Court  of  Chancery,  without  mentioning  or  at- 
tempting to  distinguish  these  cases,  held  that  the  Act  of  March 
1 2th,  iSSo,'*'  and  its  supplements,  have  abolished  the  right  of 
the  heir,  or  devisee  to  be  exonerated  from  a  mortgage  debt 
created  and  owed  by  an  ancestor  or  testator,  out  of  the  per- 
sonal estate  of  such  ancestor  or  testator.  In  such  cases,  the 
statute  expressly  makes  the  mortgaged  lands  the  primary  fund 
out  of  which  the  debt  secured  thereby  is  to  be  paid,  and  per- 
mits the  personal  remedy  on  the  bond  only  after  the  remedy 
against  the  lands  has  been  exhausted.  The  ancient  rule  is 
based  upon  the  theory  that  the  personal  estate  of  a  testator 
or  intestate  is  the  primary  fund  out  of  which  his  debts  are 
to  be  paid.  Exoneration  was  not  allowed  where  the  heir  or 
devisee  received  his  land  encumbered  by  a  mortgage  which 
secured  a  debt  which  the  ancestor  or  testator  did  not  owe.  A 
timely  presentation  therefore,  by  the  heirs  of  a  claim  against 
an  administrator  for  exoneration  from  the  burden  of  a  mort- 
gage made  by  deceased  does  not  amount  to  a  claim  for  the 
whole  debt,  but  is  merely  a  claim  for  the  payment  of  any  de- 
ficiency which  may  thereafter  be  declared  due  to  the  claimant 
afterlhis  primary  security,  the  land,  has  baen  exhausted.  The 
rule  as  laid  down  in  this  case  was  followed  in  Atkinson  v.  At- 
kinson.** Attention  is  also  called  to  the  case  of  Crater  v. 
Smith*-'  in  which  it  was  held  that  the  Act  of  1880,  being  in 
derogation  of  the  creditors'  common  law  remedy,  must  be 
strictly  construed,  and  that  that  act  does  not  prevent  the  mort- 
gagee from  presenting  liis  full  claim  to  the  representative  of 
the  deceased  mortgagor,  before  the  foreclosure  of  the  mort- 

^^Thomas  v.  Thomas,   17  N.  J.  *''^z  Comp.  Stat.,  p.  3421,  sec.  48. 

Eq.,    356.      Higbie    v.    Morris,    53  ••'92  Atl.  Rep.,  795. 

N.  J.  Eq.,   173.  •'■'42    N.   J.    Eq.,   .348.      Affirmed. 

<=79  N.  J.  Eq.,  310.  43  N.  J.  Eq.,  636. 


548  Probate  Law  and  Practice. 

gage,  and  obtaining  his  dividend  on  the  amount  of  the  de- 
ficiency, if  the  estate  be  insolvent,  more  than  six  months  after 
the  foreclosure  sale,  although  no  action  has  been  brought  on 
the  bond. 

ORDER  OF  APPLICATION  OF  ASSETS  TO  PAYMENT  OF 

DEBTS. 

In  General. 

The  order  in  which  assets  are  to  be  applied  to  the  payment  of 
debts,  in  the  absence  of  a  contrary  intention  sufficiently  ex- 
pressed in  the  will,  is,  (  i)  the  general,  or  residuary,  person- 
alty, not  specifically  bequeathed  nor  exonerated  or  exempted  ; 
(2)  real  estate  appropriated  to,  and  not  merely  charged  with  the 
payment  of  debts;  (3)  real  estate  descended  whether  acquired 
before  or  after  the  making  of  the  will;  (4)  real  estate  devised 
charged  with  the  payment  of  debts;  (5)  general  pecuniary 
legacies  pro  rata;  (6)  specific  and  residuary  devises  and  spe- 
cific legacies  pro  rata;  (7)  real  and  personal  property  which 
the  testator  has  power  to  appoint  and  which  he  has  appointed 
by  his  will.*'^  , 

Personalty  Not  Specifically  Bequeathed. 

Personalty  not  specifically  bequeathed  must  be  applied  to 
the  payment  of  debts  before  specific  legacies.'*^ 

Residuary  Real  Estate. 

After  the  personalty  not  specifically  bequeathed  is  exha,usted, 
the  residuary  real  estate  is  bound  to  contribute  first  to  the 
payment  of  debts.** 

Lands  Descended. 

Lands  descended  are  chargeable  with  debts  before  lands  de- 
vised.*^ 

^^2>      Williams      on      Executors,  *«Martin  v.  Cullen,  30  N.  J.  Eq., 

1591.  426.     Anderson    v.    Anderson,    31 

^"Whitehead  v.  Gibbons,   10  N.  N.  J.  Eq.,  560.    Hattersley  v.  Bis- 

J.  Eq.,  230.     Halsey  v.  Patterson.  sett,  52  N.  J.  Eq.,  693. 

27    N.    J.    Eq.,    445.      Kearns    v.  ^^Stires  v.    Stires,  5   N.  J.  Eq.. 

Kearns,  yy  N.  J.  Eq.,  453.  224. 


DiSlJURSEMEXTS.  549 

Lands  Specifically  Devised. 

It  is  not  until  the  residuary  real  estate  has  been  exhausted 
that  specifically  devised  estates  become  liable/''*^ 

Specific  Legacies  and  Devises. 

After  the  personalty  not  bequeathed  is  exhausted,  in  the 
absence  of  lands  descended,  specific  legacies  and  devises  abate 
equallv  in  payment  of  creditors.-'''^ 

Where  Lands  Devised  for  Payment  of  Debts. 

Where  a  testator  devised  certain  lands  for  the  payment 
of  his  debts,  until  they  have  been  exhausted,  the  sale  of  other 
lands  cannot  be  resorted  to.''- 

PAYMENTS    FOR    THE    BENEFIT    OF    LEGATEES,    ETC. 

In  General, 

An  executor  or  administrator  will  be  allowed  for  a  claim 
paid  by  him  which  properly  he  should  not  have  paid,  but  which 
payment  accrued  to  the  benefit  of  the  exceptant.^  So  where, 
although  the  personal  estate  of  an  intestate  was  not  liable  for 
the  payment  of  a  mortgage  on  lands  bought  by  him,  the  pay- 
ment of  which  he  assumed  in  his  deed  for  the  premises,  his 
administratrix  paid  interest  thereon  out  of  the  personal  estate. 
and  his  child,  who  was  his  only  next  of  kin  and  heir  at  law,  ex- 
cepted to  the  allowance  thereof  to  the  administratrix,  it  w^as 
held  that  the  exception  should  be  overruled,  the  payment  hav- 
ing been  for  the  exceptant's  benefit ;-  and  so  services,  such  as 
caring  for.  nursing  and  ministering  to  the  health  and  comfort 
of  a  lunatic,  belong  to  the  class  of  "necessaries"  which  are 
recoverable  against  the  lunatic,  and.  after  his  death,  against 
the  estate."    Ikit  if  an  executor  has  paid  part  of  a  legacy  given 

'^''Anderson  v.  Anderson,  31  N.  '"Stiers   v.   Sticrs,  20  N.  J.   L., 

J.  F.q.,  560.  52. 

•"''Thomas  v.  Thomas,   17  N.   T.  >Birkhohii  v.  Wardell,  42  N.  J. 

Eq.,    356,     Shreve   v.    Shreve,    17  Eq.,   2i7-      Rogers    v.   Traphagen, 

N.    J.    Eq.,    487.      I.angstroth    v.  42  N.  J.  Eq.,  421. 

Golding,  41  N.  J.  Eq.,  49,  and  see  ^girkholm  v.  Wardell,  42  N.  J. 

"What    Lands    May  be    Sold,"   p.  Eq.,  337. 

486,  supra.  •■'Waldron  v.  Davis,  70  N.  J.  L., 

78<S. 


550  Probate  Law  and  Practice. 

to  an  infant  over  to  the  father  for  the  expenses  of  the  infant's 
support  without  a  proper  order  of  court,  the  mere  fact  that  the 
payment  was  made  in  good  faith  will  not  protect  him.* 

Payments  for  Support  of  Decedent's  Family. 

Where  a  testator  directs  his  executor  to  apply  so  much  of 
his  estate  to  the  support  of  his  widow,  or  children,  as  in  his 
judgment  may  be  necessary  for  that  purpose,  the  amount  which 
should  be  so  expended  rests  in  the  discretion  of  the  executor 
and  is  not  subject  to  judicial  review,  so  long  as  he  exercises  a 
fair  and  honest  discretion.^  Thus,  where  the  will  gave  to  the 
executrix  a  life  estate  in  all  of  testator's  personal  property, 
and  so  much  of  the  principal  as  was  necessary  for  her  com- 
fort and  maintenance,  the  right  of  the  executrix  will  be  limited 
to  so  much  as  she  may  need  for  her  comfortable  maintenance.'"' 
In  such  case,  however,  the  estate  of  the  executrix  should  not 
be  charged  with  an  amount  paid  by  her  out  of  the  funds  of 
her  husband's  estate  for  a  suitable  residence,  but  her  heirs  will 
be  decreed  to  convey  the  title  thereto  to  the  residuary  legatee." 
If  the  executor  abuses  the  power  committed  to  him,  and  makes 
a  grossly  unreasonable  allowance,  the  court  may  interfere  and 
make  such  allowance  as  he,  in  the  exercise  of  a  proper  discre- 
tion, ought  to  have  made.^ 

Where  a  will  gives  the  income  of  a  certain  fund  to  the  wife 
for  life,  and  also  so  much  of  the  principal  as  she  should  need 
for  her  comfortable  support,  such  comfortable  support  should 
be  taken  from  the  estate  of  the  husband,  and  not  in  part  from 
her  separate  property ;  and  when  these  funds  have  been  min- 
gled by  her.  without  fraud,  equity  will  follow  and  separate 
them  after  her  death,  imposing  the  burden  of  separation  on 
the  wife's  representatives.^  So  where  testator  bequeathed  the 
income  on  a  certain  sum  to  executors  to  accumulate  for  the 
benefit  of  his  daughter  until  she  reached  the  age  of  eighteen, 

•»McKnight  v.  Walsh.  23   N.  J.  "Hunt  v.   Smith,  58  N.  J.   Eq., 

Eq.,   136.     Affirmed  24  N.  J.  Eq.,  25.     Smith  v.  Robinson,  83  N.  J. 

498.  Eq.,  384. 

sRead    v.    Patterson,    44    N.    J.  sRead    v.    Patterson,    47    N.    J. 

Eq.,  211.     Affirmed  47  N.  J.   Eq.,  Eq.,  595. 

595.  9Cox    V.    Wills,    49    N.    J.    Eq., 

^Bradway  v.  Hohnes,  50  N.  J.  573. 
Eq.,  31T. 


Disbursements.  551 

with  a  remainder  over  in  case  of  her  death,  and  such  income 
was  ordered  by  the  court  to  be  expended  for  her  education  and 
support,  and  the  daughter  died  before  reaching  the  age  of 
eighteen,  it  was  held  that  first  the  physician's  bill  and  then  the 
funeral  expenses  should  be  paid  from  any  unexpended  part 
of  such  income  before  its  payment  to  the  residuary  devisee.^'' 
Where  an  executor  or  trustee  is  required  to  pay  income  to  a 
third  person  to  be  applied  by  such  third  person  for  the  proi)er 
support  of  certain  beneficiaries,  the  trustee  performs  his  part 
by  the  payment  of  the  income  to  the  designated  person,  and  is 
not  bound  to  look  to  its  appropriation.  Thus,  where  the  will 
directed  a  trustee  to  pay  the  income  from  testator's  estate  to 
his  wife  for  the  maintenance  of  his  children,  it  was  held  that 
the  testator  meant  that  his  widow  and  children  should  live 
together,  and  that  during  her  life  she  could  have  the  income  of 
the  children's  property  to  maintain  them,  without  being  liable 
to  account.^ ^  So  payments  made  by  an  executor  or  adminis- 
trator from  a  fund  to  which  infants,  for  whom  no  guardian 
has  been  appointed,  are  entitled,  for  the  benefit  of  such  infants, 
will  be  allovv'ed,  though  such  payments  should  regularly  have 
been  made  only  to  a  guardian,  where  the  expenditures  would 
have  been  approved  had  they  been  made  by  a  guardian  ;'-  and 
so  where  a  testator  directed  that  his  executri.x.  who  was  his 
daughter,  should  use  so  much  oi  the  proceeds  of  sales  of  his 
real  estate  as  should  be  necessar}-  to  support  his  wife,  it  was 
held  that  the  executrix,  with  whom  the  mother  boarded,  could 
recover  from  the  estate  of  testator  for  the  actual  cost  of  the 
board  and  for  money  actually  paid  out  for  attendance  for  the 
mother,  but  would  not  be  allowed  for  profits,  or  for  her  own 
services.^' 

PAYMENTS     MADE     BY     AGREEMENT     WITH 
BENEFICIARY. 

In  General. 

Where  a  guardian,  with  the  consent  of  his  wards  when  df 
age,  agrees  to  give  time  for  the  payment  of  a  security  in  his 

I'^'Fowler  v.  Colt.  22  N.  J.  Eq.,  ^-Rogers  v.  Traphagen.  42  N.  J. 

44-  Eq..  421. 

I'McKnight  v.  Walsh.  24  N.  J.  ^'Hammond    v.    Cronkright,    4" 

Eq..  49H,  504.  X.  J.  F.q..  447. 


552  Probate  Law  and  Practice. 

hands  belonging  to  them,  upon  receiving  the  guarantee  of  a 
third  person  at  a  certain  agreed  charge,  the  guardian,  in  the 
settlement  of  his  account,  will  be  allowed  the  charge  so  paid 
under  that  arrangement."  So  where  an  executor  paid  to  the 
testator's  widow  more  than  she  was  entitled  to  by  the  terms 
of  the  will,  in  pursuance  of  an  equitable  arrangement  by  which 
controversies  about  the  estate  were  settled  and  litigation 
avoided,  it  is  clear  that  the  legatee  by  whose  consent  such  ar- 
rangement was  made  cannot,  on  exceptions  to  the  account  of 
the  executor,  object  to  his  being  allowed  for  such  payment. ^^ 
So  in  an  accounting  between  a  trustee  and  a  cestui  que  trust 
not  under  disability,  annual  receipts  by  the  latter  containing 
accounts  which  credit  the  trustee  with  amounts  paid  by  him  for 
taxes,  etc.,  amount  to  admissions  that  the  sums  were  justly 
paid  by  the  trustee  ;^^  and  though  a  ward  did  not,  through  her 
guardian,  expressly  agree  that  one  collecting  rent  of  her  land 
might  apply  it  to  the  satisfaction  of  an  encumbrance,  still  the 
ward  will  be  bound  by  a  payment  made  with  the  knowledge  and 
acquiescence  of  the  guardian.^' 

MISCELLANEOUS  DISBURSEMENTS. 

Judgments  Against  Personal  Representatives. 

A  judgment  against  an  executor  or  administrator  must  be 
regarded  as  at  least  prima  facie  evidence  that  the  claim  was 
well  founded,  until  the  contrary  appears  ;^*^  but  the  recovery  of 
a  judgment  against  an  executor  or  administrator  by  a  broker 
for  alleged  services,  which  the  executor  or  administrator  de- 
nied, under  oath,  were  ever  "rendered,  does  not  warrant  an 
allowance  for  its  payment  from  the  estate  ;^°  and  where  execu- 
tors in  bad  faith  allow  a  judgment  to  be  recovered  against  the 
estate,  they  will  not  be  allowed  credit  for  the  payment  of  the 
judgment  in  their  account. -° 

i^Burnham  v.  Bailing.   i8  N.  J.  I'Switzer   v.    vSwitzer,   57    N.   J. 

Eq..  132.  Eq.,  421. 

isPursel  V.  Pursel,  14  N.  J.  Eq.,  isPursel  v.  Pursel.  14  N.  J.  Eq.. 

514.     Kinnan  v.   Wight,   39   N.  J.  514.    Smith  v.  Smith,  30  N.  J.  Eq., 

Eq.,  501.     Brewster  v.  Demarest,  564-568. 

48  N.  J.  Eq.,  559.  i^Tucker   v.    Tucker,   29   N.    J. 

leWelsh  V.  Brown,  50  N.  J.  Eq.,  Eq.,  286. 

387.  20Hurlbut   V.    Hutton.   44    N.   J. 

Eq.,  302. 


Disbursements.  553 

Traveling  Expenses. 

An  executor,  administrator  or  trustee  is  entitled  to  the  al- 
lowance of  moneys  spent  by  him  for  traveling  expenses  while 
conducting  the  business  of  the  estate  ;-*  and  he  will  be  entitled 
to  such  allowance  even  though  he  also  had  personal  business 
in  the  places  to  which  he  traveled  to  conduct  the  estate's  busi- 
ness, when  he  states  that  on  the  occasions  for  whicli  he  charged 
expenses  he  visited  the  city  solely  to  transact  the  business  of 
the  estate,  the  accountant  being  under  no  obligation  to  attend 
to  the  business  of  the  estate  when  he  was  there  on  account  of 
his  own  business  concerns. -- 

Collateral  Inheritance  Taxes. 

Where  an  executor  has  paid  the  collateral  inheritance  taxes 
upon  legacies  given  by  the  will,  although  it  is  his  duty  to  deduct 
such  tax  at  settlement  with  the  legatee,  he  may  properly  make 
the  payments  and  ha\e  allowance  for  tliem  in  his  final  ac- 
count.-^ 

WHETHER     PAYMENTS     BY     TRUSTEES     SHOULD     BE 
CHARGED    AGAINST    INCOME    OR    CORPUS. 

In  General. 

Where  property,  whether  rea'  or  personal,  is  given  to  a 
trustee  with  directions  to  pay  the  income  to  one  for  life,  with 
remainder  over,  the  one  entitled  to  the  income  is  the  equitable 
tenant  for  life,  subject  to  all  of  the  duties  of  a  life-tenant, 
among  which  are  the  payment  of  all  annual  charges,  including 
taxes  and  interest  on  encumbrances ;  and  when  the  trust  estate 
consists  in  part  of  improved  property  productive  of  revenue 
and  in  part  of  unimproved  property  producing  no  revenue,  the 
life-tenant  must  pay  the  taxes  and  annual  charges  on  the  un- 
improved property  from  the  income  derived  from  the  revenue 
producing  property,  so   far  as  such  income  extends.-^     This 

-^Morton's  Case,  74  N.  J.  Eq., 
797.  Combes  v.  Cadmus.  36  N.  J 
Eq.,  382.  S.  C,  Z7  N.  J.  Eq..  264 
Schulting  V.  Schultin.e:,  41  N.  J 
Eq.,  130.  Tattle's  Case,  49  N.  J 
Eq.,  259.  Murch  v.  Smith  Mfg 
Co.,  47  N.  J.  Eq.,  193.  Brcarley 
V.  Molten.  62  N.  T.  Eq.,  .'545. 


21 

Dey  V.  Cod 

man,  39 

N. 

J.  Eq., 

258. 

Wyckoff  \ 

•.  O'Nei 

.   72 

N. 

J. 

Eq. 

880. 

2: 

Wyckofif   V. 

O'Neil, 

72 

N. 

J. 

Eq. 

880-882. 

2.' 

WvckoflF  V. 

O'Neil, 

72 

N. 

J- 

Eq. 

880. 

554  Probate  Law  and  Practice. 

liability  is,  however,  limited  to  the  income  received,  or  the 
rental  value  of  the  property  in  case  it  be  occupied  by  the  life- 
tenant;-^  and  the  tenant  for  life  is  not  only  bound  to  keep 
down  these  charges  as  the  income  comes  into  his  possession 
from  year  to  year,  but  the  whole  profits  during  the  estate  for 
life  are  applicable  to  the  discharge  of  the  liability.-'^ 

A  doweress  occupying  lands  set  off  to  her  is  a  tenant  for 
life,  and  is  bound  to  pay  taxes  and  interest  on  encumbrances 
and  to  make  necessary  repairs ;-'  but  a  widow  in  possession 
under  the  second  section  of  the  statute  concerning  dower,-^ 
giving  her  the  right  to  hold  her  husband's  homestead  until  her 
dower  is  assigned,  is  not  a  tenant  for  life  and  is  therefore  not 
bound  to  keep  down  interest  on  an  encumbrance,  pay  taxes  or 
make  repairs.-^ 

Taxes  and  Interest  on  Encumbrances. 

As  between  life-tenant  and  remainderman,  taxes  assessed 
subsequently  to  the  death  of  the  testator  and  interest  on  en- 
cumbrances on  testator's  real  estate,  in  the  absence  of  any 
provisions  in  the  will  to  the  contrary,  must  be  paid  out  of  the 
income,  and  will  not  be  allowed  as  a  charge  against  the  corpus 
of  the  estate.^"  The  life-tenant  is  chargeable  with  taxes  from 
the  time  when  they  are  assessed,  irrespective  of  when  they  are 
payable  or  become  a  lien.  So  where  a  testator  died  June  30th, 
and  the  real  estate  left  by  said  testator  was  subject  to  assess- 
ment  for  taxes  as  of  May  20th   in  the  name  of  the  owner 

-SMurch  V.   Smith  Mfg.  Co.,  47  Eq.,   356.     Out^alt   v.   Appleby,  36 

N.  J.  Eq.,   193.     Tuttle's  Case,  49  N.  J.  Eq.,  72-     Pratt  v.  Douglas, 

N.  J.  Eq.,  259.  38    N.    J.    Eq.,    516.      Dufford    v. 

-GAIurch  V.  Smith  Mfg.  Co.,  47  Smith,   46   N.   J.    Eq.,   216.     Hol- 

N.  J.  Eq.,  193.  combe  v.  Holcombe,  2y  N.  J.  Eq., 

-^Haulenbeck  v.   Cronkright,  23  473.     Brearley  v.  Molten,  62  N.  J. 

N.  J.  Eq.,  407.     Affirmed  25  N.  J.  Eq.,  345.     Dey  v.   Codman,  39  N. 

Eq.,  513.  J.  Eq.,  258.     Jonas  v.  Hunt,  40  N. 

•^2  Comp.  Stat.,  p.  2045,  sec.  2.  J.  Eq.,  660-662.     Murch  v.   Smith 

29Spinning  v.  Spinning,  41  N.  J.  Alfg.  Co.,  47  N.  J,  Eq.,  193.     Mul- 

Eq.,  427.     Affirmed  43   N.  J.   Eq..  ford  v.  Mulford,  42  N.  J.  Eq.,  68. 

215 ;    but  see  Thiele  v.  Thiele,  57  Ivory  v.   Klein,  54  N.  J.  Eq.,  379- 

N.   J.   Eq.,  98.  Affirmed  55   N.  J.   Eq.,  823. 

3'^'Thomas  v.   Thomas,    17   N.   J. 


Disbursement^.  555 

thereof  at  that  date,  the  executors  should  pay  the  taxes  out 
of  the  corpus  of  the  estate ;"  and  in  apportioning  taxes  be- 
tween the  personal  representative  of  a  deceased  life-tenant  and 
the  remainderman,  where  the  life-tenant  dies  after  the  date  on 
which  taxes  are  assessed,  but  before  the  date  on  which  they  are 
payable,  the  taxes  for  the  entire  year  are  payable  by  the  life- 
tenant,  and  should  be  charged  against  the  income.  The  prin- 
ciple underlying  this  rule  is,  that  it  is  the  intention  of  the  law 
that  the  person  or  persons  who  owned  the  real  estate  on  the 
day  when  by  law  the  assessment  was  levied  shall  be  made  per- 
sonally responsible  for  the  taxes ;  and  while  is  has  been  held 
that  a  tax  on  real  estate  is  not,  properly  speaking,  a  debt,  and 
cannot  be  enforced  by  action  of  debt,  but  can  be  collected  only 
in  the  mode  prescribed  by  the  statute,  still  the  rule  is  settled 
that  such  tax  inust  be  held  to  be  a  liability  of  the  owner,  to 
which  he  nuist  respond  in  the  manner  prescribed  by  the  stat- 
ute.^- 

There  is  a  class  of  cases  where  a  specific  sum  of  money  is 
given  to  trustees,  with  directions  to  invest  the  fund  and  pay 
the  net  income  to  one  for  life,  with  remainder  over,  and  the 
trustees  invest  the  fund  upon  mortgage,  and  are  obliged  to 
foreclose  the  same  and  buy  in  the  property,  which  they  after- 
wards sell  at  a  loss.  Upon  this  situation,  the  question  arises 
whether  taxes  upon  such  property,  paid  by  the  trustees,  should^ 
be  charged  against  income  or  corpus ;  and  it  is  settled  that 
if  such  taxes  accrued  within  the  period  during  which  the  trus- 
tees held  the  property,  they  will  be  chargeable  against  the  life- 
tenant's  share,^^  but  if.  on  the  other  hand,  they  accrued  prior 
to  the  taking  of  title  by  the  trustees,  they  are  chargealile  against 
the  remainderman's  interest.^* 

Broker's  Commissions. 

\\'here  executors  empowered  to  sell  real  estate  employ 
agents  to  procure  purchasers   therefor,   commissions  paid  to 

siBrown  v.  Brown.  72  X.  J.  Eq..  s-'-T^ttie's    Case,    40    N.    J.    Eq., 

667.    Shearman  v.  Cameron.  76  N.  259. 

J.  Eq.,  426.  s^Trenton  Trust  &  Safe  Deposit 

32In  re  Porter.  36  N.  J.  L.  J.,  Co.  v.  Donnelly.  65  N.  J.  Eq.,  iio. 
.342. 


556  Probate  Law  and  Practice. 

such  agents  are  payable  out  of  the  corpus  of  the  estate  and  not 
out  of  the  income. ^^ 

Principal  of  Encumbrances. 

As  has  been  seen,  it  is  a  well-established  principle  that  where 
there  is  an  estate  for  life,  with  remainder  in  fee,  and  there 
exists  an  encumbrance  binding  the  whole  estate  in  the  land,  and 
no  special  equities  between  the  remainderman  and  the  tenant 
for  life  can  be  shown,  the  latter  is  bound  to  pay  the  interest 
accruing  upon  the  emcumbrance  during  the  continuance  of  his 
estate.  The  remainderman  is,  however,  required  to  pay  off 
the  principal  of  the  encumbrance."^ 

Taxes   Where   Principal   and  Income   Devoted  to   Support 
of  Widow  for  Life. 

Where  testator  gave  the  income  of  all  his  personal  estate  to 
his  wife  for  life,  giving  his  executors  power,  in  their  discre- 
tion, to  sell  any  part  of  his  real  estate,  it  was  held  that  the 
taxes  on  the  real  estate  were  to  be  paid  by  the  executors  from 
the  income,  and  that  no  part  of  the  realty  could  be  sold  for 
that  purpose."^  Where  the  will  gave  to  a  wife  the  interest  on 
a  certain  fund  for  life,  and  so  much  of  the  principal  as  she 
should  need  for  her  comfortable  maintenance  and  she  mingled 
her  husband's  estate  with  her  own,  without  fraud,  ordinary 
repairs  and  expenses  were  allowed  from  the  husband's  estate, 
but  permanent  improvements  will  be  charged  against  the  wife's 
estate. ^^ 

BETTERMENTS. 

In  General. 

It  is  well  settled  that  where  a  trustee  charged  with  the  care 
of  the  estate  of  his  testator  finds  it  necessary  to  make  additions 
to  the  houses  or  adaptations  of  the  premises  to  new  uses,  such 

ssBrown  v.  Brown,  "ji  N.  J.  Eq.,  379.    Affirmed  55  N.  J.  Eq.,  823. 
667.     In   re  Wiley,  65   Atl.   Rep.,  37(3ombes  v.   Cadmus,  36  N.  J. 

212.     Dey   V.   Codman,   39  N.    J.,  Eq.,  382.     Affirmed  zi  N.  J.  Eq., 

258.      Babbitt    v.    Fidelity    Trust  264. 
Co.,  72  N.  J.  Eq.,  745-  ^^Cox    v.    Wills,   49    N.   J.   Eq., 

sf'Ivory  V.  Klein,  54  N.  J.  Eq.,  573. 


Disbursements.  557 

improvements  will  be  regarded  as  betterments.^''  The  rule 
adopted  by  our  courts,  as  to  the  payment  of  permanent  im- 
provements, or  betterments,  as  between  tenant  for  life  and  re- 
mainderman, is  that  they  should  be  equitably  apportioned  be- 
tween them  ,-'^'  and  the  Court  of  Brrors  and  Appeals  has  held 
that  the  proper  method  of  apportioning  betterments  is  to  pay 
the  whole  sum  out  of  the  principal,  and  to  deduct  from  the  in- 
come the  interest  on  the  sum  so  paid,  and  add  the  same  to  the 
corpus  of  the  estate*^ 

Municipal  Assessments. 

As  between  tenant  for  life  and  remainderman,  assessments 
for  municipal  improvements  are  regarded  as  betterments,  and 
should  be  equitably  apportioned  under  the  rule  adopted  as  to 
the  apportioning  of  betterments  between  life-tenant  and  re- 
mainderman.*- 

Repairs. 

A  tenant  for  life  is  bound  to  keep  the  premises  in  as  good 
repair  as  they  were  when  the  life  tenancy  began.  He  is  bound 
to  make  those  repairs  rendered  necessary  by  actual  wear  and 
tear,  as  to  repair  the  roof  and  re-piint,  when  required  to  pre- 
vent decay,  but  only  to  the  extent  of  preventing  waste  :*"  and 
the  general  rule  is  that  a  tenant  for  life  cannot  expend  money 
in  buildings  or  improvements  upon  the  estate  and  charge  the 
same  against  the  corpus.**  So  where  testator  devised  to  his 
wife  the  use  of  his  personal  and  real  estate,  so  long  as  she 
remained  his  widow,  or  during  her  natural  life,  with  remainder 

^^Stephens  v.  Milnor,  24  N.  J.  ^^^Xurch  v.  Smith  Mfg.  Co..  47 

Eq.,  358.  N.  J.  Eq.,   193.     Burton  v.  Mellis, 

■''^'Holcombe  v.  Holcombe,  29  N.  75  N.  J.  Eq.,  10.     In  re  Steele,  19 

J.   Eq.,  597.     Outcalt  V.  Appleby,  N.  J.  Eq.,  120.     Kearney  v.  Kear- 

36  N.  J.  Eq.,  73.     Pratt  v.  Doug-  ney,  17  N.  J.  Eq.,  59.    Haulenbeck 

las,   38  N.   J.   Eq.,   516.     Brearley  v.   Cronkright.   23   N.  J.   Eq.,  407. 

V.  Molten,  62  N.  J.  Eq.,  345.  Dey  v.  Codman,  39  N.  T.  Eq..  258. 

*' Jonas  V.   Hunt,  40  N.  J.  Eq..  Flummerfelt    v.    Flummcrfclt.    51 

660.     Brown   v.   Brown.   72  N.   J.  N.  J.  Eq.,  432-436. 

Eq.,  667.  4*Pratt    v.    Douglas,    38    N.    J. 

*2Brown  v.  Brown,  72  N.  J.  Eq.,  Eq.,  516.     Crane  v.   \'anDuyne.  9 

667.    Jonas  V.  Hunt,  40  N.  J.  Eq.,  N.  J.  Eq.,  259. 
660. 


558  Probate  Law  and  Practice. 

over,  and  the  wife  married  again,  after  which  time  she,  with 
her  husband,  remained  in  possession  of  the  real  estate,  it  was 
held  that  they  would  not  be  entitled  to  an  allowance  for  im- 
provements put  upon  the  estate  and  for  moneys  paid  for  the 
tillage,  care  and  cultivation  of  the  land  by  the  widow  during 
her  widowhood.*^ 

Improvements  by  Guardians  on  Wards'  Lands. 

A  guardian  will  not  be  allowed  the  cost,  or  even  the  value 
of  buildings  erected  by  him  on  the  estate  of  his  ward,  without 
authority/® 

Insurance. 

It  is  the  duty  of  a  trustee  to  insure  buildings  on  property 
held  by  him  in  trust.  The  mere  fact  that  his  testator  had  in 
his  lifetime  been  unwilling  to  insure  these 'buildings  does  not 
excuse  him  from  so  insuring,  and  if  the  buildings  are  destroyed 
by  fire,  he  will  be  liable  for  the  loss.^'  So  an  executor  or 
administrator  with  the  will  annexed  should  insure  in  cases 
where  the  will  contains  a  power  of  sale.'*'*  The  premiums  paid 
by  a  trustee  for  insuring  buildings  held  by  him  in  trust  should 
be  apportioned  between  the  life-tenant  and  remainderman  ac- 
cording to  their  respective  interests."*" 

BARRING  CREDITORS. 
Rule  to  Limit  Creditors. 

The  statute  provides  that  the  orphans'  court. 'or  the  surrogate 
of  the  proper  county,  is  empowered  to  order  executors  and 
administrators  to  give  public  notice  to  the  creditors  of  the 
decedent  to  bring  in  their  debts,  demands  and  claims  against 
the  estate,  under  oath,  within  nine  months  from  the  date  of 
such  order,  by  setting  up  such  notice  in  five  of  the  most 
public  places  in  said  county  for  two  months,  and  also  by  ad- 

^^Crane  v.   VanDuyne,   9   N.   J.  -^sHoward   v.   Francis.   30   N.   J. 

Eq..  259.  Eq.,  444. 

46Haggerty  v.   McCanna,   25   N.  ^gKearney  v.   Kearney.   17  N.  J. 

J.  Eq.,  48.  Eq..   504.     Rogers   v.   Genung.    ■/() 

'"'Tn  re  Ramsey's  Estate.  66  Atl.  Atl.  Rep.,  233. 
Rep.,  410. 


Barrin'g  Creditors.  550 

vertising  the  same  at  least  once  in  each  week  for  the  hke  time, 
in  one  or  more  of  the  newspapers  of  this  state  as  may  be  di- 
rected in  said  order,  and  any  fnrther  notice  in  case  the  court  or 
surrogate  shall  judge  the  same  necessary,  which  order  may  be 
made  at  any  time  after  the  granting  of  letters  testamentary  or  of 
administration,  whether  the  estate  be  insolvent  or  not,  and 
such  notice  shall  be  given  and  advertised  within  twenty  days 
after  the  date  of  such  order. ^^ 

Purpose  of  Statute. 

The  object  of  the  statute  is  to  inform  the  personal  repre- 
sentatives of  the  claims  which  may  be  outstanding  against 
the  estate  of  their  decedent,  that  they  may  know  how  to  ad- 
minister it  and  not  be  subject  to  suits  after  they  have  disbursed 
all  the  assets. ^"^^ 

Necessity  of  Notice. 

To  bar  a  claim  against  an  estate  under  a  rule  limiting  cred- 
itors, there  must  be  proof  that  the  notice  was  advertised  and 
set  up  as  required  by  law.''"' 

Form  of  Notice. 

The  notice  required  to  be  given  by  this  section  of  the  Or- 
phans' Court  Act  shall  be  given  by  setting  up  and  publishing  a 
notice  stating  that  the  order  has  been  made,  at  what  time 
( its  date),  on  whose  application,  in  what  court  and  what  direc- 
tions are  thereby  given,  and  not  by  setting  up  and  publish- 
ing a  copy  of  the  order.'" 

Claims  Must  Be  Verified. 

When  any  order  to  bring  in  debts  and  claims  against  the 
estate  of  any  decedent  shall  be  made  in  jnirsuance  of  section    (y 
67  of  the  Orphans'  Court  Act,'''  all  claims  and  demands  of  the 
creditors  of  the  deceased  shall  be  presented  in  writing,  specify- 
ing the  amount  claimed  and  the  particulars  of  the  claim,  and 

■"•'Orphans'    Court   Act.    sec.   67.  •"'•^Petrie   v.   Voorhees,    18   N.   J. 

3  Comp.  Stat..  3833.  Eq.,  285. 

•"•^Smitli  V.  Wilson,  79  N.  J.  Eq.,  ^"Orphans'  Court  Rule  40. 

310-314.     Ryan  V.  Flanagan.  38  N.  "Page  ^v"^,  supra. 
J.  L..   161-164. 
.37 


560  Probate  Law  and  Practice. 

shall  be  verified  under  oath,  or  the  bringing  in  of  the  same  shall 
be  of  no  effect. ^^ 

Form  of  Affidavit. 

It  is  not  essential  that  an  affidavit  made  by  a  creditor  to  his 
account  presented  to  the  executor  or  administrator  should  show 
on  its  face  or  in  the  jurat  where  it  was  sworn. ■''^ 

Payment  of  Unverified  Claims. 

The  statute  provides  that  when  any  executor  or  adminis- 
trator shall  have  paid  or  shall  pay  in  good  faith  any  claim 
or  demand  of  any  creditor  presented  to  him,  which  shall  not 
have  been  duly  verified  as  required  by  this  act,  and  it  shall  be 
duly  proven  to  the  court  or  surrogate,  on  or  before  the  final 
accounting  of  said  executor  or  administrator,  that  said  claim 
or  demand  was  owing  by  said  decedent  and  was  a  just  claim 
and  demand  against  said  estate,  said  court  or  surrogate  shall 
allow  said  executor  or  administrator  for  the  amount  of  such 
claim  and  demand  in  said  account,  if  there  shall  be  sufficient 
of  said  estate  to  pay  the  debts  of  equal  degree  with  said  claim 
or  demand  in  full ;  and  if  said  estate  is  not  sufficient  for  said 
purpose,  then  said  executor  or  administrator  shall  be  allowed 
for  the  pro  rata  amount  such  creditor  would  have  been  entitled 
to  receive  if  said  claim  or  demand  had  been  presented  to  such 
executor  or  administrator  duly  verified  as  required  In'  this  act.^° 

The  provision  of  the  statute  requiring  claims  to  be  presented 
under  oath  was  intended  primarily  for  the  protection  of  the  ex- 
ecutor or  administrator;  and  where  the  estate  is  solvent,  the 
executor  could,  if  he  chose,  waive  this  provision,  and  recognize 
or  pay  any  claim  which  he  knew  or  became  satisfied  was  just, 
without  requiring  oath  of  the  creditor."^  This  right  is  now  ex- 
pressly recognized  by  section  68  of  the  Orphans'  Court  Act.*^- 
Statutory  provisions  for  the  benefit  of  private  or  personal 
rights,  and  not  affecting  public  rights  or  policy  may,  in  general, 

s^Orphans'   Court   Act,   sec.   68.  •^"Orphans'    Court   Act,    sec.   68. 

3  Comp.  Stat.,  3834.  3  Comp.  Stat.,  3834. 

s^Smith  V.  Abbott,  17  N.  J.  L.,  ^iKinnan  v.  Wight,  39  N.  J.  Eq., 

358.  501. 

''-This  page,  supra. 


Barrixx  Creditors.  561 

be  waived ;  and  this  is  especially  true  as  to  statutory  provis- 
ions relating  to  formal  procedure.  So  where  a  claim  against 
decedent's  estate  was  duly  verified,  but  by  mistake  of  the  at- 
torney for  the  claimant  the  claim  was  presented  without  the 
verification,  and  afterwards,  before  the  expiration  of  the  time 
for  presenting  claims,  the  authorized  attorney  for  the  estate 
expressly  recognized  the  claim  as  presented,  and  sought  to 
negotiate  for  its  satisfaction,  without  objection  as  to  its  want 
of  verification,  it  was  held  that  the  want  of  verification  was 
waived.  Such  waiver,  however,  does  not  afifect  the  right  to 
have  the  claim  established  by  suit."^  An  executor  may  pay  an 
unverified  claim  against  an  insolvent  estate  at  any  time  prior 
to  the  application  to  the  orphans'  court  to  have  the  estate  de- 
clared insolvent;  but  he  will  only  be  entitled,  in  case  the  estate 
should  prove  to  be  insolvent,  to  an  allowance  for  the  pro  rata 
amount  which  the  creditor  would  have  been  entitled  to   re- 


Commencement  of   Suit  Not  Equivalent  to  Presentation 
of  Claim. 

An  action  brought  against  a  personal  representative,  upon 
an  obligation  of  the  deceased,  within  the  period  limited  by  a 
surrogate's  order  to  limit  creditors,  will  not  be  equivalent  to,  or 
take  the  place  of  presentation  of  the  plaintiff's  claim  on  such 
obligation  in  writing,  and  with  the  formalities  and  oath  re- 
quired by  the  above  section.  If  no  such  claim  is  presented 
to  the  personal  representative  within  the  limited  period  and  a 
decree  of  the  surrogate  is  duly  made  barring  creditors  who 
have  not  presented  claims,  he  may  plead  such  decree  in  bar 
of  the  action.'^^  So  filing  an  unverified  bill  in  chancery  for 
discovery  of  trust  funds  in  the  hands  of  an  executrix,  and  to 
follow  such  funds  into  certain  lands  claimed  to  have  been 
bought  by  her  testator  with  such  funds,  is  not  such  a  pre- 
sentation of  the  claim  under  an  order  of  limitation  made  by  the 
surrogate  as   to   entitle  complainants   to   participate   witli   the 

*=2Seymour    v.    Goodwin,    68    N.  «*Fii-st       National       Bank       v. 

T.    Eq..    189.      Affirmed,    69    N.   J.       Thompson.  61   N.  J.  Eq.,   188. 
Eq..  ^Z3-  "''Newbold    v.   Fenimore,   53    N. 

J.  E..  307. 


562  Probate  Law  and  Practice. 

creditors  who  have  duly  presented  their  claims  in  the  division 
of  the  assets  of  an  insolvent  estate,  although  the  bill  was  filed 
]:)efore  the  expiration  of  the  time  limited  by  the  order,  and  the 
defendant's  answer,  which  was  not  filed  until  after  the  ex- 
{)iration  of  the  time  so  limited,  admitted  the  liability  of  the 
estate  for  a  part  of  the  claim.*"*  So  the  filing  of  a  bill  for  fore- 
closure of  a  mortgage,  claiming  a  decree  for  deficiency,  is 
not  a  presentation  of  a  claim  for  the  deficiency  within  the 
meaning  of  the  statute."' 

CLAIMS  WHICH  NEED  NOT  BE  PRESENTED. 

Claim  of  Deceased  Executor  for  Advances  to  Estate. 

Where  a  deceased  executor  paid  debts  of  his  testator  to  a 
greater  amount  than  the  assets  received  by  him,  the  claim  of 
the  estate  of  such  deceased  executor  to  be  reimbursed  in  the 
amount  so  advanced  by  him  is  not  a  debt  of  the  testator  which 
may  be  barred  by  decree,  but  a  part  of  the  expense  of  the  set- 
tlement of  the  estate.*'* 

Claims   Presented   Prior  to   Order   Need   Not   Be   Re-pre- 
sented. 

The  purpose  of  the  foregoing  provisions' to  bar  creditors  is, 
as  has  been  said  above,  to  aid  the  executor  in  the  speedy  settle- 
ment of  the  estate  of  his  decedent,  and  in  determining 
whether  it  is  to  be  settled  as  a  solvent  or  an  insolvent  estate, 
and,  in  furtherance  of  that  purpose,  to  provide  a  means  for 
liim  to  ascertain  promptly  the  amount  of  the  outstanding  debts, 
the  parties  in  whose  hands  they  are,  and  the  fact  that  they  are 
at  least  prima  facie  obligations  of  the  estate,  and,  when  in  his 
judgment  the  liability  of  the  estate  to  tinswer  a  given  claim  is 
doubtful,  to  compel  the  creditor  to  have  that  question  primarily 
determined  by  a  court  and  jury.  A  creditor  who  presents  his 
claim,  properly  verified,  to  the  executor  before  the  rule  to  limit 
is  taken  out,  has  furnished  to  the  executor  the  information 
which  the  statute  is  designed  to  elicit,  and  is  entitled  to  its  pro- 

'^''Robins  v.  Arnold,  42  N.  J.  ance  Co.  v.  Howell,  32  N.  J.  Eq., 
Eq..  511.  146. 

'^"Mutual     Benefit     Life     Insur-  csDu^n    v.    Campbell,    47    N.    J. 

Eq..  4. 


Barring  Creditors.  563 

tection,  if  the  validity  of  liis  claim  is  not  disi)ute(l.  If  it  is  dis- 
puted, then,  in  order  to  avoid  the  penalty  of  the  statute  he  must 
bring'  suit  upon  his  claim  within  three  months  after  notice  of 
the  fact  that  it  is  disputed  is  gi\en  to  him  ])y  the  executor.''" 

Claim  Assigned  After  Presentation. 

Where  the  owner  of  a  claim  against  the  estate  of  a  decedent 
presents  such  claim  to  the  personal  representative  within  the 
time  tixed  by  the  rule  to  limit  creditors,  and  afterwards  as- 
signs such  claim  to  a  third  person,  it  is  unnecessary  for  the 
assignee  to  present  it  again.'" 

Claim  for  Deficiency  on  Mortgage. 

A  claim  against  the  estate  of  a  decedent  for  a  deficiency 
upon  a  mortgage  assumed  by  him  is,  before  foreclosure,  only 
contingent,  and  consequently  cannot  be  proved  as  a  debt  against 
his  estate  before  that  time.'^ 

CLAIMS    WHICH    MAY    BE    PRESENTED. 

Debts  Payable  in  Future. 

Debts  and  demands  liquidated,  not  due  and  payable,  but 
which  are  payable  in  the  future,  may  be  presented  for  allow- 
ance ;  a  reasonable  rebate  of  interest  being  made  when  interest 
is  not  accruing  on  the  same  ;  and  if  any  such  debt  or  demand 
be  disputed,  and  action  be  brought  therefor,  the  plaintiff  shall 
not  fail  in  such  action  on  account  of  such  debt  and  demand 
being  payal)le  in  the  future,  if  the  same  be  otherwise  a  legal 
debt  or  demand. "-' 

eoSimons  v.  Forster,  "Ji  N.  J.  L.,  Eq..  339,  and  sec  "Disputed  Claim 

338.      Affirmed    suh    nom.   Gargia  on    Bond    and    Mortgage,"    page 

V.  Foster,  y-j  N.  J.  L.,  802.    Matliis  538.   supra,    and   "Where   Debt   is 

V.  Stevenson.  75  N.  J.  Eq.,  68.  Secured  1)y  Bond  and  Mortgage." 

'"Ryan  v.  Flanagan,  38  N.  J.  L.,  page   546,   supra,   and   "Claim    Se- 

161.     Crisp  v.  Dunn,  56  N.  J.  T..,  cured    by    Mortgage."    page    564, 

355.  at  p.  357.  infra. 

^'Terhune    v.    White,    34    N.    J.  '-Orphans'   Court   Act,   sec.  69; 

Eq.,  98.    Field  V.  Thistle,  58  N.  J.  3  Comp.  Stat.,  3834. 


564  Probate  Law  and  Practice. 

Claim  Secured  by  Mortgage. 

Where  the  claim  is  founded  upon  a  bond  secured  by  mort- 
gage, the  claim  upon  the  bond  of  decedent  may  be  presented  to 
the  administrator  before  the  mortgaged  premises  are  sold.'^^ 

As  has  already  been  seen  the  statute"'*  which  requires  that  an 
action  on  a  bond  for  a  deficiency  shall  be  brought  within  six 
months  after  the  sale  of  the  premises  under  the  foreclosure  oi 
the  accompanying  mortgage,  is  in  derogation  of  the  creditors' 
common  law  remedy,  and  must  be  strictly  construed,  and  does 
not  prevent  the  mortgagee  from  presenting  his  full  claim  to 
the  representative  of  the  deceased  mortgagor  before  such  fore- 
closure sale,  and  obtaining  his  dividend  on  the  amount  of  the 
deficiency,  if  the  estate  be  insolvent,  more  than  six  months 
after  such  sale,  although  no  action  has  been  brought  on  the 
bond.'^^ 

Partnership  Debts. 

Where  one  of  two  members  of  a  co-partnership  dies,  the 
creditors  of  the  partnership  may  prove  their  debts  against  the 
estate  of  the  deceased  person.'* 

Preferred  Debts, 

x\  creditor  holding  a  preferred  claim  against  an  insolvent 
■estate  must  present  it  under  oath  within  the  time  limited  by 
the  order  of  the  court,  or  be  barred." 

DECREE    BARRING    CREDITORS. 

Entry  of  Decree. 

After  the  expiration  of  the  time  in  such  order  limited,  the 
orphans'  court  or  the  surrogate  of  the  proper  county,  upon 
proof  to  its  or  his  satisfaction  that  notice  thereof  has  been  set 

"^Smith  V.  Crater,  43  N.  J.  Eq.,  for  Deficiency  on   Foreclosure  of 

636.  Mortgage,"  page  568.  infra. 

■*3  Comp.  Stat.,  p.  3421,  sec.  48.  ''^'Greene  v.  Butterworth,  45  N. 

■^^Crater  v.  Smith,  42  N.  J.  Eq.,  J.  Eq.,  738,  and  see  "Partnership 

348.     Affirmed  43  N.  J.   Eq.,   636.  Deists,"  p.  535,  supra, 

and  see  "Disputed  Claim  on  Bond  '''Fogg's  Case,  yj  N.  J.  Eq.,  238, 

and     Mortgage,"     p.     538,     supra,  and    see    "Preferred    Debts,"    p. 

"When  Debt  is  Secured  by  Mort-  568,  infra, 
gage,"  p.  546,  supra,  and  "Claim 


Barring  Creditors. 


0^^ 


up  and  advertised  as  directed,  may,  by  final  decree,  order  that 
all  creditors  who  have  not  brought  in  their  claims  within  the 
time  in  said  order  directed,  shall  be  barred  from  any  action 
therefor  against  the  executor  or  administrator;  and  any  credi- 
tor who  shall  have  neglected  to  bring  in  his  debt,  demand  or 
claim  within  the  time  so  limited,  shall,  by  such  decree,  be  for- 
ever barred  of  his  or  her  action  therefor  against  such  executor 
or  administrator,  except  as  hereafter  provided."^ 

The  proof  of  posting  and  publishing  the  notice  of  the  rule 
to  limit  creditors  is  by  affidavits  showing  that  such  notice  was 
published  and  posted  as  required  by  the  act.  which  affidavits 
should  be  filed  with  the  surrogate. 

Necessity  for  Decree — Under  Prior  Statutes. 

The  prior  statute.'''  provided  that  if  any  creditor  should 
neglect  to  bring  in  his  demand  within  the  limited  time,  such 
creditor  should  be  forever  barred  of  his  action  against  the 
executor  or  administrator ;  no  decree  barring  creditors  was 
necessary,  the  simple  neglect  to  present  the  claim  within  the 
time  limited  barring  the  debt.®*' 

Under  Present  Statute. 

There  must  be  a  decree  of  the  surrogate  or  orphans'  court 
to  bar  claims  not  presented  within  the  time  limited  f^  but  it  is 
doubtful  whether  a  claim  presented  after  the  time  limited,  and 
before  decree,  will  be  in  time.®- 

Effect  of  Decree. 

A  decree  barring  creditors  made  by  the  surrogate  or  orphans' 
court  becomes  by  the  statute  a  bar  against  any  creditor  who 
neglected  to  bring  in  his  claim  within  the  time  limited,  and 
precludes  actions  b\-  creditors  against  executors  and  ad- 
ministrators.      The     dc(  rec     is    conclusive,     and     cannot     Ijc 

^■^Orphans'   Court  Act,   sec.  70;  ^iTerhune    v.    White,    34    N.   J. 

3  -Comp.   Stat.,   3835.  Eq.,  08. 

^9Nix.  Dig.,  p.  653,  sec.  70.  ^-See   "Claims    Presented    after 

soRyan  v.  Flanagan,  38  N.  J.  L.,  Nine  Months,  but  before   Decree 

161.    Ryder  v.  Wilson,  41  N.  J.  L.,  Taken."  p.  560.  infra. 

9. 


566  Probate;  Law  and  Practice. 

attacked  collaterally;""  but  the  rule  to  limit  creditors,  and 
the  decree  barring  creditors  provided  for  l^y  the  Orphans' 
Court  Act  operate  only  to  protect  the  executor  or  administrator 
from  molestation  by  belated  claims  of  creditors,  to  the  end 
that  the  estate  of  a  decedent  may  be  speedily  settled,  and  do 
not  operate  as  a  statute  of  limitations  against  the  claims  of 
creditors.  What  is  barred  are  actions  against  the  executor  or 
administrator ;  the  creditor  retains  unimpaired  all  other  reme- 
dies to  collect  his  debt.®'  But  a  decree  barring  creditors  will 
be  enforced  against  them,  notwithstanding  that  the  executor 
has  personal  assets  of  the  testator  in  his  hands ;  the  provisions 
of  section  75  of  the  act,®^  providing  that  nothing  therein  con- 
tained shall  bar  any  person  from  bringing  any  action  against 
an  executor  or  administrator  for  or  in  respect  to  the  personal 
estate  of  his  testator  or  intestate,  have  no  application  to  a  suit 
to  collect  a  claim.®''  Where,  however,  the  whole  of  decedent's 
estate  is  still  in  his  executor's  hands,  and  the  suit  is  in  effect 
one  against  both  the  executor  and  the  residuary  legatee  and 
devisee,  who  is  a  party  thereto,  a  decree  barring  creditors  is  no 
defense,  the  subject  matter  of  the  action  being  an  equitable 
claim. ®^ 

The  statute  provides  that  nothing  therein  contained  shall  pre- 
vent or  bar  any  person  from  bringing  and  maintaining  any 
action  against  an  executor  or  administrator  for  or  in  respect 
of  the  personal  estate  of  his  testator  or  intestate,  or  for  or  in 
respect  of  any  waste  or  misapplication  thereof  by  such  executor 
or  administrator.®® 

Pleading  Bar  of  Statute. 

If  no  claim  upon  a  personal  obligation  of  the  deceased  be 
presented   in  writing,  within  the  time  limited,   and  with  the 

83Ryan  V.  Flanagan.  38  N.  J.  L.,  *"'This  page,  infra. 

161-164.    Seymour  v.  Goodwin,  68  s<^Cunningham    v.    Stanford,    69 

N.  J.  Eq.,  189.    Affirmed  69  N.  J.  N.  J.  L..  9. 

Eq.,  833.     S.  C.  74  N.  J.  Eq.,  856.  "Harrison  v.  Patterson,  50  Atl. 

Ryder  v.  Wilson,  41   N.  J.   L.,  9.  Rep.,   113. 

Emson  v.  Allen,  62  N.  J.  L..  491-  ^^Orphans'  Court  Act,  sec.  75,  3 

492.  Comp.    Stat.,    3837.    but    see    "Ef- 

s^O'Donnell   v.   IMcCann.   •]•]   N.  feet  of  Decree,"  p.  565,  supra. 
J.  Eq.,  188-196. 


Barrix'G  Creditors.  567 

formalities  required  by  the  act,  to  the  personal  representative, 
and  a  decree  is  duly  made  barring  creditors  who  have  not  pre- 
sented claims,  the  executor  may  plead  such  decree  in  bar  of 
the  action;*"  and  in  an  action  at  law  on  a  claim  against  a 
decedent's  estate,  to  which  has  been  pleaded  a  decree  of  the 
surrogate  barring  creditors,  plaintiff  cannot  show  facts  consti- 
tuting an  estoppel  of  the  executrix  to  interpose  such  decree 
as  a  defense,  or  that  the  presentation  of  plaintift"s  claim  under 
oath  was  waived,  although  he  may  maintain  a  suit  in  equity  to 
restrain  such  defense  by  showing  waiver  of  verification  of  the 
claim  which  was  presented  before  such  decree. *"'  But  where, 
in  a  complaint  upon  a  claim  arising  after  a  decree  to  bar 
creditors,  the  executor  pleads  such  decree,  and  the  plaintiff'  re- 
plies that  the  debt  arose  after  the  decree,  such  replication  will 
be  held  good  on  demurrer. ^^ 

In  an  action  against  an  executor,  it  is  not  necessary  to  allege 
in  the  complaint  that  no  order  to  limit  creditors  was  taken,  or 
that  the  claim  in  question  was  duly  presented,  as  these  are  mat- 
ters of  defense.''- 

DEBTS  BARRED  BY  DECREE. 

Debts  Alleged  by  Way  of  Set-off. 

The  purpose  of  precluding  an  action  against  an  executor  or 
administrator  by  a  person  who  has  not  exhibited  his  claim 
within  the  time  limited,  is,  as  has  been  said  above,  to  secure 
the  speedy  settlement  of  decedents'  estates  and  to  enable  the 
personal  representative  to  determine  whether  the  estate  is  to  be 
settled  as  a  solvent  or  insolvent  estate,  and  whether  real  prop- 
erty must  be  resorted  to  for  the  payment  of  debts.  If  in  a 
suit  brought  by  the  personal  representative  he  may  be  con- 
fronted with  a  claim  of  which  he  had  no  notice,  pleaded  by 
way  of  set-off,  and  thereupon  an  affirmative  judgment  may  be 
rendered  against  him  for  any  balance  found  to  be  due  the  de- 

s^Newbold  v.   Fenimore,   53   N.  "iWakcnian  v.  Paulmier.  39  N. 

J.   L.,  307.     Ryder  v.  Wilson,  41  J.  L..  340. 

N.  J.  L.,  9.     Ryan  v.  Flanagan,  38  ^^Dnrhrow  v.  Eppens,  65  N.  J. 

X.  J.  L..  161.  L.,   10. 

9'^Seymour  v.  Goodwin,  68  N.  J. 
Eq..   180. 


568  Probate  Law  and  Practice. 

fendant.  (as  under  the  statute  of  set-off  is  lawful),  then  evi- 
dently it  will  not  be  possible  to  accomplish  this  purpose  until 
every  claim  in  favor  of  the  estate  is  settled,  abandoned  or 
prosecuted  to  final  judgment.  Such  a  postponement  of  the 
disclosures  needed  to  ascertain  the  solvency  or  insolvency  of 
the  estate  would  thwart  the  policy  of  the  statute.  It  follows, 
therefore,  that  the  bar  created  by  a  decree  made  upon  proceed- 
ings to  limit  creditors  applies  to  debts  and  demands  alleged 
by  way  of  set-off.^^ 

Preferred  Debts. 

A  creditor  holding  a  preferred  claim  against  an  insolvent 
estate,  who  has  not  presented  it  within  the  time  limited  in  the 
order  of  the  surrogate  or  court,  will  be  barred.-'^ 

Claim  for  Deficiency  on  Foreclosure  of  Mortgage. 

A  rule  to  bar  creditors  will  protect  the  executors  of  the 
surety  of  a  mortgagor  and  the  administrators  of  his  deceased 
widow,  to  whom  he  had  devised  lands  for  her  lifetime  or 
widowhood,  from  liability  for  a  judgment  for  deficiency  after 
the  foreclosure  of  the  mortgage. ^^  So  where  in  February, 
1876,  intestate  assumed  in  a  deed  to  him  of  certain  lands  to  pay 
a  mortgage  thereon,  and  also  gave  complainants  hi.s  bond  to 
pay  the  mortgage  debt  in  one  year  thereafter,  and  died  in 
March,  1878,  and  complainant's  foreclosure  bill  was  filed  in 
November,  1878,  and  on  April  6,  1878,  intestate's  adminis- 
trator took  the  usual  order  Ijmiting  the  time  for  presenting 
claims  against  the  estate  to  nine  months  thereafter,  but  com- 
plainants never  filed  any  claim  thereunder,  it  was  held  that 
the  administrators  were  not  liable  to  a  judgment  for  deficiency 
on  their  intestate's  assumption,  such  claim  being  barred  by  the 
decree.^'''  But  where  testator  purchases  lands  subject  to  a 
mortgage,  the  payment  of  which  he  assumes,  and  the  mort- 
gage is  not  foreclosed  until  after  a  decree  barring  creditors 
has  been  taken,  a  claim  for  deficiency  is  not  barred,  as  before 

93Emson  V.   Allen,  62  N.  J.  L..  ^sDemarest    v.    Vandenberg,    41 

491.  N.  J.  Eq.,  63. 

8*Fogg's  Case,  37  N.  J.  Eq.,  238.  ^^Mutual  Benefit  Life  Insurance 

Co.  V.  Howell,  32  N.  J.  Eq.,  146. 


Barring  Creditors.  569 

foreclosure  it  is,  as  has  been  seen,  contingent  and  not  present- 
able to  the  executors.^' 

Claim  of  Heir  for  Exoneration  of  Mortgage  from  Personal 
Estate. 

An  heir  at  law  entitled  to  exoneration  by  the  personal  estate 
from  a  mortgage  held  by  a  third  party  is  a  creditor  within  the 
meaning  of  the  act,  and  unless  he  presents  his  claims  to  the 
executor  or  administrator  within  the  time  limited  in  the  order, 
it  will  be  barred.^* 

Claim  for  Interest  on  Bond  Given  by  Testator, 

A  claim  for  interest  on  a  bond  given  by  testator  is  barred 
by  the  omission  of  the  claimant  to  present  his  claim  to  the 
executor  in  pursuance  of  the  order. ^^ 

Presentation  of  Claims  Waived  by  Executor. 

Executors'  verbal  statements  to  a  creditor  of  the  estate  that 
his  claim  was  alright,  and  that  they  would  pay  it  as  soon  as 
they  had  enough  money  on  hand  to  do  so,  will  not  excuse  such 
creditor's  neglect  to  present  the  claim  to  the  executors  formally 
within  the  time  limited  by  the  order  of  the  court,  nor  estop 
them  from  setting  up  the  order;  nor  will  an  allegation  that 
they  have  wasted  the  estate,  unsupported  by  a  statement  of  the 
facts  constituting  such  waste,  render  them  personally  liable  to 
a  creditor  of  the  estate.^ 

Claims  Presented  After  Nine  Months,  but  Before   Decree 
Taken. 

The  question  as  to  whether  a  claim  which  was  presented 
after  the  expiration  of  the  time  limited  by  the  order,  but  be- 
fore the  decree  barring  creditors   was   taken,   is  barred,   has 

o^Terhune   v.    White,    34   N.   J.  ^sSmith    v.    Wilson.    79    N.    J. 

Eq.,  98.    Field  v.  Thistle,  58  N.  J.  Eq.,  310,  and  see  "Where  Debt  is 

Eq.,     339;      and     see     "Disputed  Secured    by    Mortgage,"    p.    546. 

Claim  on  Bond  and  Mortgage,"  ]).  supra. 

538,  supra;    and  "Claims  Secured  s^Howell  v.  Howell,  16  N.  J.  L. 

by   Bond   and   Mortgage,"   p.  564.  J.,  58. 

supra.  ^Lewis   v.    Champion.   40   N.   J. 

Eq..  59. 


5/0  Probate;  Law  and  Practice;. 

been  variously  decided.  In  the  Prerogative  Court  and  in  the 
Court  of  Chancery  it  has  been  held  that  if  the  claim  is  pre- 
sented at  any  time  before  decree  taken,  it  is  in  time,  and  is  not 
barred.-  On  the  other  hand.  Chief  Justice  Beasley.  in  a  de- 
cision in  the  Supreme  Court  two  years  later,  criticized  these 
cases,  and  held  that  all  claims  not  presented  within  the  time 
limited  in  the  order  of  the  orphans'  court  are  barred  from  the 
expiration  of  the  time  limited,  irrespective  of  when  the  decree 
was  taken. ^ 

DEBTS  NOT  BARRED  BY  DECREE. 

Claims  Arising  After  Entry  of  Decree. 

The  statute  does  not  extend  to  a  claim  which  was  not  in 
existence  at  the  time  of  the  entry  of  the  decree  barring  credi- 
tors ;  obviously,  the  person  holding  such  claim  was  not  a 
creditor  at  the  time  of  the  entry  of  the  decree,  and  his  claim 
can  therefore  not  be  barred  by  it.  Thus,  a  claim  for  inoney 
paid  for  the  use  of  an  executor,  and  at  his  request,  is  not  bar- 
red if  it  arose  after  the  time  limited  for  the  presentation  of 
claims.* 

Claim  for  Advances  Made  to  Estate  by  Deceased  Executor. 

Where  one  of  two  executors  qualifies  and  proceeds  alone 
with  the  administration  of  the  estate  and  dies  after  he  had  ex- 
pended in  such  administration  more  moneys  than  he  has  real- 
ized from  the  assets  of  the  estate,  and  then  the  co-executor 
qualifies  and  continues  the  administration,  it  is  the  duty  of  the 
co-executor,  after  paying  the  expenses  of  administration,  to 
re-imburse  the  representatives  of  the  deceased  co-executor  for 
his  legitimate  expenditures  in  excess  of  his  receipts  from  the 
assets  of  the  estate,  and  such  balance  due  to  the  deceased  exec- 
utor is  not  a  debt  of  the  testator  which  may  be  barred  by  a 
decree,  but  a  part  of  the  expenses  of  the  settlement  of  the 
estate.^ 

^Terhune    v.    White,    34    N.    J.  ■*Wakeman   v.    Paulmier,   39   N. 

Eq.,   98.     Miller   v.    Harrison,   34  J.   L.,  340. 

N.    J.    Eq.,    374-382.      Parker    v.  sDunn    v.    Campbell,    47    N.    J. 

Combs,  34  N.  J.  Eq.,  522.  Eq.,  4. 

^Young  V.  Young,  45  N.  J.  L,-, 
197- 


Bakkixg  Creditors.  571 

Claim  for  Trust  Funds. 

Where  an  executor  mingles  trust  moneys  with  his  own,  or 
invests  them  in  personal  or  real  estate,  his  entire  estate,  either 
in  his  own  hands  or  in  the  hands  of  his  administrator,  will  be 
liable  for  the  payment  of  such  funds  in  preference  to  his 
own  creditors ;  and  the  rule  to  bar  creditors  does  not  embrace 
the  claims  of  the  cestui  que  trust,  so  long  as  the  trust  property 
or  money  can  be  traced.'' 

CLAIMS  FOR  TRUST  FUNDS  IN  POSSESSION  OF 
DECEDENT. 

Nature  of  Claim. 

Although  the  claim  of  a  cestui  que  trust  against  the  estate 
of  a  deceased  trustee  is  commonly  referred  to  as  being  a  claim 
to  come  in  as  a  preferred  creditor,  and  the  property  iii*  ques- 
tion alleged  to  be  a  preferred  debt  of  the  estate,  it  must  be 
borne  in  mind  that  these  terms,  although  used  in  a  number  of 
reported  decisions,  are  erroneous  and  misleading.  Such  a 
claim  cannot  under  any  circumstances  be  a  preferred  debt,  nor 
can  the  cestui  que  trust  be  a  preferred  creditor.  His  claim  is 
one  of  equitable  title  to  the  assets  in  question ;  and  hence,  of 
title  adverse  to  that  of  the  executor  or  administrator.  If  he 
succeeds  in  impressing  the  trust  upon  the  assets,  he  takes 
them,  not  in  payment  of  a  debt  due  to  him.  but  as  his  own 
property ;  and  while  the  effect  is  to  prefer  him  to  creditors, — 
and,  of  course,  to  all  creditors,  preferred  or  general — this  is 
so,  not  because  he  is  a  preferred  creditor,  but  because  his 
property  cannot  be  taken  in  payment  of  another  man's  debts. 
Conversely,  if  he  fails  to  impress  the  trust  upon  the  property 
in  question,  he  can  come  in  only  with  the  general  creditors  of 
the  estate,  after  the  payment  of  the  preferred  debts  ;  for  the 
law  contains  no  provision  ])referring  a  delit  due  to  a  cestui  que 
trust,  and,  in  the  absence  of  such  a  pro\ision.  no  preference 
can  be  implied. 

As  was  said  by  the  court  in  O'CalhKjhan's  Case,''  "Trust 
obligations  are  not   among  llic  del)ts  of  a  decedent  to  which 

'^Smitli  V.  Coml)S,  40  N.  J.  Eq..       Distinjiuishcd."  p.  574.  infra. 
420.     Bjit    see   "Smith    v.    ComI)s,  "64  N.  J.  F,q..  2?>7. 


572  Probate  Law  and  Practice. 

a  preference  is  gi\en  by  our  laws  for  the  administration  of 
estates.  If  the  personal  representative  of  an  intestate  trustee 
treat  a  trust  fund  as  such  and  deliver  it  to  its  rightful  owner 
or  to  a  substituted  trustee,  the  court  before  whom  the  repre- 
sentative presents  his  account  would  probably  protect  him  in 
making  such  payment,  but  it  is  upon  the  ground  that  the 
trust  fund  is  not  part  of  the  assets  of  the  decedent."  So  in 
Ellicott  V.  Kuhl,^  the  court  said  on  this  point :  "The  cestui  que 
trust  was,  therefore,  held  entitled  to  claim  its  proceeds,  not  as 
a  preferred  debt,  but  as  property  to  which  he  had  a  right  as 
against  the  deceased,  or  those  who  claimed  under  him."  And 
so  in  Koch  v.  Feick,^  it  was  held  that  complainants,  seeking  to 
follow  trust  funds  which  they  alleged  to  have  been  in  the  cus- 
tody and  possession  of  decedent  at  the  time  of  his  death,  did 
not  claim  to  be  creditors  of  the  estate,  and  that  a  decree  of 
insolvency  in  the  orphans'  court  could  not  take  away  from 
such  cestuis  qiie  trustcnt  any  rights  which  they  had  in  such 
assets. 

Cestui  Que  Trust  Must  Trace  Assets, 

It  follows  that  the  rights  of  a  cestui  que  trust  or  other  bene- 
ficiary against  the  estate  of  a  trustee  or  other  fiduciary  depend 
entirely  upon  his  ability  to  impress  the  trust  upon  the  assets  of 
the  estate,  which  ability  in  turn  depends  upon  and  must  be  de- 
cided by  the  application  to  the  facts  in  the  case  of  the  funda- 
mental equitable  doctrine  that  trust  property  may  be  followed  as 
far  as  it  can  be  traced ;  and  the  rule  may  therefore  be  stated 
to  be  that  the  cestui  que  trust  is  entitled  to  impress  the  trust 
upon  the  trust  property  when  he  can  trace  it,  but  that  when 
he  cannot  trace  it,  he  has  no  rights  superior  to  those  of  the 
general  creditors  of  the  estate,  and  must  come  in  on  an  equal 
footing  with  them. 

Application  of  Rule, 

There  are,  obviously,  two  classes  of  cases  in  which  the  appli- 
cation of  this  rule  is  simple — on  the  one  hand,  where  the  trust 
property  remains  in  the  hands  of  the  trustee  in  specie,  or 
where  it  can  be  definitely  and  unmistakably  identified  in  the 

s6o  N.  J.  Eq.,  2Z2.  ^8l  N.  J.  Eq.,  120-122. 


Barring  Creditors.  573 

form  into  uhich  it  has  been  converted  ;'*'  on  the  other,  where 
it  has  been  completely  merged  in  and  lost  to  sight  among  the 
general  mass  of  the  trustee's  possessions,  and  can  neither  be 
traced  nor  identified. ^^ 

The  difficulties  in  the  proper  application  of  the  rule  arise  in 
the  cases  that  fall  between  the  two  classes  described  above — 
that  is.  where  the  property  can  be  partly  traced  or  imperfectly 
identified.  In  these  cases,  it  is  generall}'  held  that  the  prop- 
erty may  be  followed  so  far  as  and  to  the  amount  that  it  can  be 
identified ;  and  to  assist  in  such  identification,  two  more  equi- 
table rules  are  invoked — namely,  that  where  a  person  holding 
money  in  a  fiduciary  capacity  mixes  it  with  his  own  and  draws 
out  of  the  mixed  fund,  the  court  will  presume  that  he  applies 
his  own  money  to  his  own  debts  and  the  moneys  held  in  trust 
to  the  del)ts  of  the  trust;'-  and  that  where  a  fiduciary  has  by 
such  mixing  of  property  made  it  difficult  to  determine  what  the 
respective  proportions  are,  the  burden  of  proof  is  upon  him 
to  show  what  part  of  it  is  not  trust  property.'^ 

Illustrations  of  Application  of  Rule. 

In  Hunt  V.  Smith, ^*  a  testator  left  to  his  wife,  who  was  also 
appointed  executrix,  all  his  personal  estate,  in  trust  to  use  the 
income  during  her  lifetime,  with  remainder  over  to  others. 
She  kept  no  accounts,  treated  all  the  assets  of  the  estate  as  her 
own,  and  used  the  money  obtained  therefrom  in  making  various 
investments.  After  her  death,  intestate,  the  administrator 
c.  t.  a.  of  the  husband  showed  what  moneys  were  collected  in 
cash  by  her  from  her  luisl^and's  personal  estate,  and,  in  most 
cases,  just  what  disjwsition  she  made  of  the  moneys  so  col- 

i^Coolcy  V.  Vansyckle,  14  N.  J.  622.      Collins    v.    Lewis,    60   N.   J. 

Hq.,  496.    Arnold  v.  Robins,  40  N.  Eq.,  488. 

J.  Eq.,  722,'.  i-Standi.sh  v.  BaI>cock,  52  N.  J. 

i^Nevius   V.   Disborough,   13   N.  Eq.,  628.     Reversed  53  N.  J.  E(|., 

J.  L.,  343.     Collins  V.  Steuart,  58  376.       First      National      Bank     v. 

N.  J.  Eq.,  392.     Affirmed  60  N.  J.  Thompson.  61  N.  J.  Eq.,  188. 

Eq.,  488.     Ellicott  V.  Kuhl.  60  N.  "Hunt   v.   Smith,  58  N.  J.  Eq., 

J.   Eq.,   333.     O'Callaghan's   Case,  25.     Bohle  v.  Hasselbrock,  61   N. 

64   N.   J.   Eq..,   287.      Harrison    v.  J.    Eq.,   470.     Reversed    64   N.    J. 

Fleischman,    70    N.    J.    Eq.,    301.  Eq.,  3.34- 

Pierson   v.   Phillips,  95  Atl.   Rep.,  '\s8  N,  J.  Eq.,  25. 


574  Probate  Law  and  Practice. 

lected.  The  court  said:  "By  means  of  the  wife's  bank  ac- 
count and  the  proof  of  witnesses,  the  administrator  c.  t.  a. 
succeeded  in  tracing  the  greater  portion  of  the  collections  made 
by  her  from  the  personal  assets  of  her  husband's  estate  directly 
or  secondarily  into  the  investment  in  the  securities  which  were 
found  by  her  adminstrator  and  inventoried  as  her  estate.  .  .  . 
The  administrator  of  the  wife  must  be  decreed  to  pay  to  the 
complainant,  the  administrator  c.  t.  a.,  of  the  husband,  the 
amount  he  has  collected  from  securities  which  came  to  his 
hands,  and  which  were  part  of  the  estate  of  the  husl:)and  .  .  . 
If  the  estate  in  the  hands  of  her  administrator  is  not  sut^cient 
to  pav  the  amount  I  have  found  due  to  the  complainant  .  .  , 
then  resort  may  be  had  to  the  Beatty  property  (other  property 
of  the  wife,  alleged  by  complainant  to  have  been  purchased 
with  money  of  the  husband's  estate). 

No  proof  has  been  adduced  that  there  are  any  other  debts 
due  from  her  estate,  except  what  may  be  considered  as  pre- 
ferred debts,  and  are  probably  already  paid,  beside  those  that 
have  been  adjudicated  upon  in  this  cause.  But  if  there  were 
any  other  debts,  as  the  great  body  of  her  estate  came  from  her 
husband's  estate  and  she  has  rendered  it  difficult  to  trace  the 
investments  which  have  been  made  with  her  husband's  funds, 
the  residuary  legatees  of  her  husband's  estate  should,  upon 
well  settled  principles,  have  precedence.  For  that  reason  I 
think  resort  may  be  had  to  the  Beatty  real  estate  for  any  de- 
ficiency." 

Smith  V.  Combs  Distinguished. 

It  is  true  that  the  case  of  Smith  z'.  Combs,^^  apparently  goes 
beyond  the  doctrines  above  laid  down ;  but  it  would  seem  that 
this  is  more  in  the  language  used  by  the  court  in  its  decision 
therein,  and  probably  not  in  what  was  actually  decided.  In 
this  case,  the  trustee  had  bought  bank  stocks,  and  probably,  real 
estate  (though  if  the  latter,  it  does  not  appear  with  certainty 
from  the  case  as  reported)  with  the  trust  funds,  and  died  in- 
solvent and  intestate,  with  said  stocks  and  realty  still  in  his 
hands.  It  was  held  that  the  cestuis  que  triistent  were  entitled 
to  priority,  as  against  creditors,  to  all  the  fluids  in  the  hands  of 

^•='40  N.  j.  Eq.,  420. 


Barring  Creditors.  575 

the  trustee'?  administrators,  arising  from  the  sale  of  the  bank 
stocks  and  real  estate,  up  to  the  full  amount  of  the  trust  fund. 
The  court  used  this  language  :  "I  think,  in  case  it  can  he  shown 
that  a  trustee  has  converted  portions  of  his  trust  estate  into 
money  or  has  used  trust  funds  for  the  purpose  of  purchasing 
personal  property  and  converting  that  into  money,  or  where  it 
has  been  converted  into  money  by  his  administrator,  and  there 
is  no  uncertainty  in  either  event  as  to  the  amount,  whatever 
funds  or  estate  may  be  left  in  his  own  hands,  or  in  the  hands 
of  his  administrator  should  be  regarded  as  representing  the 
the  trust  until  it  is  fully  satisfied,  and  this  even  against  credi- 
tors, unless  it  is  made  manifest  that  injustice  will  be  done 
them." 

In  the  later  case  of  Bllicott  j'.  Kidil.^''  this  case  is  ex- 
plained, and  what  is  probably  the  better  rule  laid  down,  as  fol- 
lows :  "It  is  now  a  well  settled  doctrine  that  the  cestui  que 
trust  who  can  trace  the  trust  funds  into  a  particular  property 
may  assert  a  right  to  that  property  and  its  proceeds,  if  sold, 
if  the  proceeds  remain  traceable  and  are  found  in  the  hands  of 
those  who  can  assert  no  better  right  thereto. 

Notwithstanding  some  of  the  expressions  in  the  opinion  of 
the  learned  vice-chancellor  in  Smith  f.  Coiiibs.  when  the  facts 
of  the  case  are  considered,  I  think  it  clear  that  he  did  not  in- 
tend to  express  any  different  doctrine  upon  the  subject  than 
that  developed  by  cases  in  our  owm  courts. 

In  that  case,  A^ice-Chancellor  Bird  found,  upon  the  evidence, 
that  the  trust  funds  had  been  invested  by  the  trustee  in  bank 
stock,  which  he  held  at  the  time  of  his  death.  The  funds  were 
therefore  traced  to  a  particular  property'  which  the  trustee  had 
acquired  by  their  use.  .  .  .  The  true  doctrine  was  no  doubt 
applied  in  Smith  v.  Combs,  for  the  trustee  had  purchased 
property  with  the  trust  funds,  and  the  property  remained  in 
his  ownership  at  his  death  and  went  to  swell  the  amount  of 
his  estate.  The  cestui  que  trust  was,  therefore,  held  entitled 
to  claim  its  proceeds,  not  as  a  ]M'eferre(l  del)t.  but  as  property 
to  which  he  had  a  right  as  against  the  deceased,  or  those  who 
claimefl  under  him.  .    .    . 

"■'60  N.  J.  T'.q..  3,33. 
38 


576  *        Probate  Law  and  Practice. 

Where  moneys  of  a  trust  fund  are  traced  to  the  bank  ac- 
count of  a  trustee  or  person  acting  in  a  fiduciary  capacity,  and 
there  are  moneys  remaining  in  the  account  to  satisfy  the  whole 
or  part  of  the  fund,  the  cestui  que  trust,  or  person  whose 
fiduciary  agent  has  placed  the  moneys  in  such  an  account,  may 
follow  and  take  those  moneys,  because  the  presumption  is  that 
the  moneys  previously  drawn  from  the  account  were  rightfully 
drawn,  and  were  chargeable  first  upon  the  private  deposits  with 
which  the  trust  funds  had  been  mingled.  Thus  considered, 
the  whole  or  part  of  the  trust  fund  has  been  traced  to  the  ac- 
count and  found  there,  and  the  cestui  que  trust  may  assert  his 
right  to  it." 

It  will  be  noted  that  this  explanation  of  Smith  v.  Combs 
leaves  out  of  consideration  altogether  the  fact  that  in  that  case 
the  fund  in  question  was,  as  said  above,  partially  formed  by 
the  proceeds  of  the  sale  of  real  estate  of  the  trustee,  which, 
so  far  as  appears  from  the  reported  case,  may  not  have  been 
purchased  with  trust  funds.  However,  there  can  be  little  doubt 
that,  if  this  be  the  fact,  the  decision  of  that  case  must,  so  far 
as  regards  the  part  of  the  fund  accruing  from  such  sale  of 
real  estate  be  regarded  as  erroneous,  both  on  principle  and  on 
precedent,  and  as  having  been  overruled  by  the  later  case,^^ 
which,  as  has  been  seen,  supports  the  rule  laid  down  in  the 
text. 

REMEDIES  OF  BARRED   CREDITORS. 

In  General. 

The  decree  barring  creditors  operates,  as  has  been  said,  only 
to  protect  the  executor  or  administrator  from  belated  claims 
of  creditors,  to  the  end  that  the  estate  of  a  decedent  may  be 
speedily  settled,  and  does  not  operate  as  a  statute  of  limitations 
against  the  claims  of  creditors.  What  is  barred  are  actions 
against  the  executor  or  administrator,  and  creditors  retain  un- 
impaired  all  other  remedies  to  collect  their  claims.-^ 

^"Ellicott  V.  Kuhl,  60  N.  J.  Eq.,  210'Donnell   v.  McCann,   77   N. 

333.  J.  Eq..   188-196. 


Barring  Creditors.  "^77 

Where  Creditor  Discovers  Assets  Unaccounted  For. 

If  anv  creditor  who  has  failed  to  present  his  debt,  demand 
or  claim,  shall,  after  the  final  settlement  of  the  account  of  the 
executor  or  administrator,  find  some  other  estate  not  ac- 
counted for.  he  shall  be  entitled  to  have  his  debt,  demand  or 
claim  paid  thereout,  or  to  a  ratable  proportion  thereof,  in  case 
other  creditors  shall  be  barred  of  their  debts,  demands  or 
claims. -- 

Construction  of  Statute. 

The  settlement  intended  by  this  section  is  a  judicial  settle- 
ment before  the  orphans'  court,  ordinary  or  surrogate.-^ 

Procedure  Under  Statute. 

The  remedy  of  the  creditor  who  is  in  laches  and  has  not  put 
in  his  claim  is  to  present  such  claim  to  the  orphans'  court,  and 
bring  in  at  the  same  time  property  not  accounted  for ;  and, 
under  the  direction  and  order  of  the  court,  to  have  his  claim 
established,  and  the  newl\-  discovered  property  distributed.-* 

Against  Surplus  After  Settlement  of  Estate. 

The  statute  provides  that  in  all  cases  where  any  executor  or 
administrator  shall  ha\e  settled  the  estate  of  any  decedent,  or 
may  hereafter  settle  the  estate  of  any  decedent,  and  there  has 
been,  or  shall  be,  upon  such  settlement  a  surj^lus  to  ])e  dis- 
tributed, it  shall  and  may  be  lawful  for  any  creditor  of  said 
estate,  who  may  have  neglected  to  file  his  claim  with  such  exec- 
utor or  administrator  within  the  time  herein  |)rescribe(l,  to  ])re- 
sent  such  claim  to  such  executor  or  administrator  under  oath 
at  any  time  before  said  surplus  shall  have  been  distributed  or 
jjaid  over  according  to  law  by  such  executor  or  administrator, 
and  upon  such  claim  being  so  presented,  it  shall  be  the  duty  of 
such  executor  or  administrator  to  pay  the  same,  or  so  much 
■  thereof  as  there  may  be  .suri)]us  in  his  hands  for  that  ])urpose, 
in  case  he  is  satisfied  that  it  is  correct  and  ought  to  be  i)aid, 

2=0rphans'  Court  Act,  sec.  70,  3  *<Ryder  v.  Wilson.  41   N.  J.  L., 

Comp.  Stat..  .3835.  9,  at  p.  12,  Beasley,  C.  J. 

-"Hmson  v.  Allen,  62  N.  J.    L-, 
401. 


578  Probate  Law  and  Pkactice. 

or,  if  he  is  not  satisfied  of  the  correctness  of  such  claim,  he 
shall  notify  such  creditor  to  proceed  forthwith  to  establish  said 
claim  by  the  judgment  of  some  court  of  competent  jurisdiction, 
and  in  such  case  the  said  executor  or  adminstrator  shall  not 
make  any  distribution  or  payment  of  such  surplus  money  to  or 
among  the  devisees  or  next  of  kin  of  said  deceased  without 
retaining  in  his  hands  a  sum  sufficient  to  pay  the  amount  of 
such  claim  so  presented  by  such  creditor,  with  interest  and 
costs,  in  case  it  shall  be  established  by  the  judgment  of  a 
court,  until  such  creditor  shall  have  had  an  opportunity  to 
establish  the  validity  of  said  claim  by  the  judgment  of  some 
competent  court. -^ 

When  Claim  May  Be  Presented. 

The  remedies  given  by  this  section  can  be  enforced  at  law 
only  after  the  estate  of  the  decedent  has  been  settled  before  the 
orphans'  court,  the  Ordinary  or  the  Court  of  Chancery.-^' 

Proceedings  in  Case  Executor  Refuses  to  Pay  Claim  Pre- 
sented. 

If  such  executor  or  administrator  shall  neglect  or  refuse  to 
pay  such  claim  upon  being  presented  in  manner  aforesaid,  it 
shall  and  may  be  lawful  for  such  creditor  to  bring  suit  against 
such  executor  or  administrator  for  the  recovery  of  said  claim, 
in  any  court  of  competent  jurisdiction,  and  the  same  proceed- 
ings may  be  had  for  the  collection  and  recovery  of  said  claim 
as  if  the  same  had  been  duly  presented,  before  the  settlement 
of  said  estate,  within  the  time  herein  prescribed.-' 

Creditor  Barred  if  He  Neglects  to  Commence  Suit  for  One 
Month  After  Notice. 

If  such  creditor,  after  having  been  notified  by  the  executor 
or  administrator,  as  provided  in  section  seventy-two.  to  bring 
suit  for  the  establishment  of  his  claim  by  the  judgment  of  a 
court,  shall  neglect  for  the  period  of  one  month  to  commence 

^'Orphans'    Court    Act.   sec.   72.  ^rOrphans'   Court   Act.    sec.   73. 

3  Comp.  Stat.,  3836.  3  Comp.  Stat..  3836. 

=«Emson   V.   Allen,   62   N.  J.   L., 
491. 


Barring  Crkditors.  579 

>uch  suit  and  prosecute  the  same  with  due  (hhgence  according 
to  the  rules  and  practice  of  the  court,  he  shall  be  thereafter 
forever  barred  from  brin.c;ing  any  suit  or  action  for  the  recov- 
ery of  such  claim.-* 

Against  Unpaid  Legacy  or  Distributive  Share. 

Any  legacy  or  distributive  share  which  shall  not  have  been 
attached  in  the  hands  of  the  executor  or  administrator,  or  paid 
over  to  the  person  entitled  to  the  same  shall,  notwithstanding 
such  decree  in  bar  of  creditors,  be  assets  in  the  hands  of  the 
executor  or  administrator  for  the  payment  of  a  ratable  pro- 
portion of  the  debt  or  claim  of  any  creditor  who  shall  not 
have  presented  the  same  within  the  time  limited;  but  such 
creditor  in  any  action  to  charge  such  assets  shall  not  recover 
any  costs,  and  if  judgment  pass  against  him  in  such  action,  he 
shall  pay  costs. :^ 

A  creditor  of  a  decedent  whose  claim  was  not  presented  to 
the  executor  in  due  season,  and  who  is  bound  by  a  decree  bar- 
ring creditors,  may  nevertheless  maintain  an  action  against 
the  executors  for  payment  of  a  ratable  portion  of  his  debt 
from  any  legacy,  or  legacies,  which  shall  not  have  been  paid 
over  by  the  executors,  or  have  been  attached  in  their  hands;"" 
but  such  action  will  not  lie  until  after  final  settlement  of  the 
accounts  of  such  personal  representative  in  the  court  where 
-uch  accounts  are  required  by  law  to  be  settled.'^ 

Effect  of  Not  Filing  Refunding  Bond. 

In  any  action  by  a  creditor  to  charge  a  legacy  or  distributive 
share  as  assets  in  the  hands  of  an  executor  or  administrator 
for  the  payment  of  a  ratable  proportion  of  his  debt,  it  shall  be 
])resumptive  evidence  that  such  legacy  or  distributive  share,  if 
not  attached,  was  not  paid  to  the  legatee  or  distributee,  if  it  ap- 
pear that  at  the  commencement  of  the  suit  no  refunding  bond 

-^Orphans'    Court   .\ct,    sec.    74.  ■''lO'Neil  v.   Freeman,  45   N.   J. 

3  Comp.  Stat.,  3836.  L.,  208.     Emson  v.  Allen,  62  N.  J. 

-'^Orphans'   Court   Act,   sec.   77.  L.,   491.     For   proceedings  where 

3  Comp.  Stat.,  3836.  the    jiersonal    representative    neg- 

'"Dodson    V.    Sevars.    52    X.    J.  lects    or    refuses    to    account,    see 

Eq.,  611.     .Affirmed  53  N.  J.  Eq.,  p.  58.',  infra. 
347- 


-8o  Probate  Law  and  Practick. 

had  been  filed  therefor;  and  in  such  case  such  executor  or 
administrator  shall  be  chargeable  with  such  legacy  or  dis- 
tributive share  as  assets,  unless  it  shall  be  proved  that  such 
legacy  or  distributive  share  was  actually  paid  over  before  the 
commencement  of  such  suit,  and  such  executor  or  adminis- 
trator shall  at  the  time  of  pleading  such  decree  in  bar  file 
therewith  a  proper  refunding  bond,  and  pay  the  plaintiff  in 
such  action  his  costs  of  suit  which  shall  have  accrued  before 
plea  filed. ^■- 

The  failure  by  an  executor  to  file  refunding  bonds  is  pre- 
sumptive evidence,  in  a  suit  by  a  barred  creditor  to  recover 
his  claim  for  legacies  unpaid  and  in  the  hands  of  the  executor, 
that  such  legacies  have  not  been  paid  by  them  to  the  legatees."^ 

By  Suit  on  Refunding  Bond. 

Everv  executor  or  administrator,  on  the  payment  of  any 
legacy  or  distributive  share  to  the  person  entitled  to  the  same, 
shall  take  a  refunding  bond  therefor ;  which  bond  shall  be 
filed  in  the  surrogate's  office  of  the  county  in  which  letters 
testamentary  or  of  administration  were  granted;  and  any 
creditor,  who  may  be  barred  by  virtue  of  any  decree  of  limita- 
tion, may  by  order  of  the  orphans'  court,  bring  suit  on  such 
refunding  bond  in  the  name  of  the  executor  or  administrator, 
but  with  the  name  of  such  creditor  stated  in  the  process  and 
pleadings  as  the  prosecutor  thereof,  and  may  recover  thereon 
the  proportion  of  his  debt  which  ought  to  be  paid  out  of  the 
legacy  or  distributive  share  for  which  said  bond  was  given, 
but  shall  not  recover  costs  in  such  suit ;  and  if  judgment  be 
given  for  the  defendant  therein,  he  shall  have  judgment  against 
the  prosecutor  for  his  costs  of  suit,  and  not  against  the  plain- 
tiff' ;  but  there  shall  not  be  recovered  on  such  bond,  in  the 
whole  a  greater  amount  than  the  legacy  or  share  actually  re- 
ceived by  the  person  by  or  from  whom  it  was  given ;  provided, 
that  nothing  herein  contained  shall  enable  any  person  to  re- 
cover any  debt  or  demand  barred  by  any  limitation  other  than, 
said  decree ;   and  provided  oho,  that  where  any  legacy  or  dis- 

s-'Orphans'   Court   Act,   sec.    79.  ssDodson    v.    Sevars,    52    N.    T. 

3  Comp.  Stat.,  3838.  Eq.,   611-616.     Affirmed   53   N.    T. 

Eq.,  347- 


Barring  Creditors.  581 

tributive  share  is  payable  to  any  executor,  administrator, 
guardian  or  trustee  it  shall  be  an  absolute  bar  in  any  suit  for 
the  recovery  of  said  legacy  or  distributive  share  on  any  re- 
funding bond  given  by  said  executor,  administrator,  guardian 
or  trustee  that  prior  to  the  commencement  of  said  suit  the 
moneys  or  property  so  received  by  said  executor,  adminis- 
trator, guardian  or  trustee  have  been  lawfully  paid  over  or 
distributed  and  that  said  executor,  administrator,  guardian  or 
trustee  has  taken  in  the  name  of  the  executor  or  adminis- 
trator of  the  original  decedent  a  refunding  bond  or  bonds 
therefor  and  in  case  part  of  said  moneys  have  been  distributed 
by  said  executor,  administrator,  guardian  or  trustee  and  re- 
funding bond  or  bonds  taken  therefor,  recovery  may  be  had 
for  the  unpaid  part  only,  and  in  case  refunding  bond  or  bonds 
are  taken  as  aforesaid,  suit  may  be  brought  by  any  such  credi- 
tor on  said  refunding  bond  or  bonds  in  the  same  manner  as 
if  payment  had  been  made  by  the  executor  or  administrator 
of  the  original  decedent  direct  to  a  legatee  or  distributee ;  but 
if  said  refunding  bond  or  bonds  shall  not,  prior  to  the  com- 
mencement of  suit  as  aforesaid,  be  filed  in  said  surrogate's 
ofifice,  said  executor,  administrator,  guardian  or  trustee  shall 
at  the  time  of  the  pleading  said  payment  or  distribution,  file  a 
proper  refunding  bond  therefor  in  said  surrogate's  office  and 
pay  the  plaintiff  in  such  action  his  costs  of  suit  wiiich  shall 
have  accrued  prior  to  plea  filed/^* 

The  adjudications  in  this  state  make  it  clear  that  the  recovery 
of  a  legacy  by  one  entitled  thereto  will  not  defeat  the  claim 
of  a  creditor,  even  though  he  has  been  barred  of  his  action 
against  the  executor,  for  if  he  has  been  so  barred,  he  may  re- 
cover his  debt  out  of  the  legacy  and  from  the  legatee.'^ 

Action  Against  Legatee  or  Distributee  on  Barred  Claim. 

Though  a  creditor  may  be  barred  of  his  action  against  the 
executor  of  his  debtor,  he  is  entitled  to  a  remedy  against  his 
debtor's  legatee,  if  tiie  legatee  has  received  his  legacy.^*^ 

3<0rphans'    Court    Act,   sec.   78,  ssQ'Donnell   v.   McCann,   •]■]   N. 

3  Comp.   Stat.,  3<S37,  as  amended      J.  Kq.,  188-194. 
by  P.  L.   1912,  p.  276.  "'JCoddington  v.  Bisphain,  36  N. 

J.  Eq.,  224.     Affirmed  ib.,  574. 


582  Probate:  Law  and  Practice. 

Against  Heirs  at  Lav>^  and  Devisees. 

A  creditor  of  a  decedent  who  died  seized  of  real  estate  may 
ignore  the  personal  representative  and  bring  suit  directly 
against  the  heir  at  law  or  devisee.  This  course  affords  an  ad- 
ditional method  of  relief  to  a  barred  creditor.  This  subject 
will  be  found  more  fully  treated  elsewhere."" 

Proceedings  in  Case  Executor,  &c.,  Neglects  to  Account,  &c. 

In  case  any  executor  or  administrator  shall  neglect  to  make 
a  final  settlement  of  his  account  within  one  year  after  letters 
testamentary  or  of  administration  granted,  or  if  any  adminis- 
trator shall  not  within  three  months  after  the  final  settlement 
of  his  account  apply  for  a  decree  of  distribution  thereon,  any 
creditor,  whose  debt  or  demand  shall  be  barred  by  such  de- 
cree of  the  orphans'  court,  may  present  a  petition  to  the  or- 
phans' court,  alleging  such  facts  and  praying  relief ;  and  the 
said  court  shall  investigate  the  circumstances  of  the  case,  and 
the  condition  of  the  estate,  and  if  it  be  made  to  appear  that 
such  delay  was  unreasonable  and  without  sufficient  cause,  the 
said  court  may  by  decree  give  such  creditor  relief  against  any 
assets  that  may  be  in  the  hands  of  the  executor  or  adminis- 
trator, in  the  nature  of  the  relief  he  would  be  entitled  to  in  case 
the  final  account  of  such  executor  or  administrator  had  been 
passed,  and  a  refunding  bond  taken  for  any  legacy  or  dis- 
tributive share,  and  may  make  such  order  touching  the  proof 
of  the  claim  of  such  creditor  (if  disputed),  and  the  costs  of 
such  proceeding,  as  may  be  equitable ;  and  the  said  court  may 
in  its  discretion  order  and  decree  that  such  costs  be  paid  b} 
the  executor  or  administrator  out  of  his  own  estate. ^^ 

Attention  is  called  to  the  fact  that  this  section  provides  for 
relief  only  in  case  of  a  decree  barring  creditors  made  by  the 
orphans'  court,  and  tliat  its  provisions  do  not  extend  to  a  credi- 
tor whose  claim  has  been  Ijarred  by  a  decree  of  the  surrogate. 

Remedy  in  Chancery. 

A  barred  creditor  may  go  into  equity  for  discovery  of  assets 
in  the  hands  of  the  executors,  and,  when  there,  will  be  per- 

^"See      "Action      by      Creditor  ^^Orphans'    Court   Act,   sec.   80. 

against  Heir  or  Devisee,"  p.  461,       3  Comp  Stat.,  3838. 
supra. 


Barking  Crkditoks.  5S3 

mitted  to  establish  the  vahdity  of  his  claim  and  to  have  it  sat'S- 
tied  so  far  as  the  assets  discovered  may  lawfully  l)e  resorted 
to.^^  But  a  creditor  of  a  deceased  person  who  has  not  i)re- 
sented  his  claim  to  the  personal  representative  cannot  maintain 
a  bill  to  set  aside  as  fraudulent  a  conveyance  of  decedent's 
lands,  when  the  bill  shows  that  the  personal  property  of  tlie 
deceased  is  ample  to  pay  his  debts  ;^"  and  so  a  creditor  who 
has  failed  to  present  his  claim  to  the  executor  of  his  debtor 
within  the  time  limited  b\'  the  orphans'  court  cannot  apply  to 
the  Court  of  Chancery  to  have  certain  bequests  and  devises 
subjected  to  his  claim,  it  appearing  in  his  bill  that  on  final  settle- 
ment there  was  a  large  residue  left  in  the  hands  of  the  execu- 
tors;^^ but  where  complainant,  who  alleged  that  he  was  the 
creditor  of  testator  to  a  very  large  amount,  that  defendant,  the 
residuary  devisee,  who  was  also  one  of  the  executors,  had,  as 
such,  fraudulently  confessed  a  judgment  for  a  large  amount, 
and  that  thereunder  the  sheriff  had  levied  on  all  the  testator's 
lands,  and  sold  all  his  personal  property,  obtained  a  prelimi- 
nary injunction  restraining  the  sheriff  from  paying  over  such 
proceeds  and  from  going  on  with  the  sale  of  the  lands,  it  was 
held  that  such  injunction  would  not  be  dissolved  on  the  appli- 
cation of  the  defendant,  although  complainant  had  never  pre- 
sented his  claim  to  the  executors  for  payment,  and  had  ob- 
tained no  judgment  at  law  on  his  claim,  the  executors,  how- 
ever, having  recognized  it  by  making  payments  thereon,  both 
before  and  after  the  expiration  of  the  time  limited  by  the  rule 
to  bar  creditors. ■•- 

'•'Dodson    V.    Sevars,    52    N.   J.  ^iDodson    v.    Sevars.    53    N.    J. 

Eq.,  61  r.     Affirmed  53   N.  J.   Eq.,  Eq..  347. 

347.  •'-Emsnn  v.  Ivins.  42  N.  J.  Eq., 

4'^Rutherford  v.  .-\lye.i,  54  N.  J.  2-]-. 
Eq.,  411. 


CHAPTER  XXIX. 

INSOLVENT  ESTATES. 

Real  and  Personal   Estate  of  Insolvent  to  be   Distributed 
Proportionately  Among  Creditors. 

The  estate,  real  and  personal,  of  a  testator  or  intestate,  in 
case  the  same  shall  be  insufficient  to  pay  all  his  or  her  debts, 
shall  be  distributed  among  his  or  her  creditors,  in  proportion 
to  the  sums  that  shall  be  due  to  them  respectively,  except  that 
the  debts  which  by  this  act  are  made  preferred  debts  shall  be 
first  paid.^ 

The  direction  of  the  statute  that  the  assets  of  an  insolvent 
estate  shall  be  distributed  ratably  among  the  creditors  of  the 
decedent  gives  creditors  a  lien  on  such  assets,  so  as  to  entitle 
them  to  a  standing  to  contest  the  validity  of  a  chattel  mortgage 
not  filed  according  to  the  statute. - 

APPLICATION     TO     HAVE     ESTATE     DECLARED 
INSOLVENT. 

Action  of  Court  Upon. 

When  any  executor  or  administrator  shall,  by  application  in 
writing,  represent  to  the  orphans'  court  of  the  proper  county, 
on  oath  or  affirmation,  that  the  personal  and  real  estate  of  the 
decedent  is  insufficient  to  pay  the  debts  of  the  deceased,  accord- 
ing to  the  best  of  his  knowledge  and  belief,  the  said  court  shall 
theretipon  direct  the  said  executor  or  administrator  to  give 
public  notice  to  the  creditors  of  the  estate  to  exhibit  to  such 
executor  or  administrator,  under  oath  or  affirmation,  their 
claims  and  demands  against  the  estate  within  such  time  as  the 
court  shall  direct  and  appoint  not  exceeding  eighteen  months 
nor  less  than  six  months.^ 

^Orphans'    Court    Act.    sec.    99.  ^Orphans'    Court    Act,   sec    100. 

3  Comp.  Stat.  3848.  3  Comp.  Stat.  3848. 

-Currie  v.  Knight,  34  N.  J.  Eq., 
485. 


IXSOLVKXT  ESTATF.S.  585 

Where  There  Are  Two  or  More  Executors. 

Where  there  are  two  or  more  executors,  all  of  them  should 
join  in  an  application  to  have  the  estate  declared  insolvent ; 
and  the  court  should  not  take  favorable  action  upon  an  appli- 
cation made  by  one  of  several  executors,  unless  sufficient  reason 
therefor  is  alleged  in  the  application  and  established  to  the 
court's  satisfaction.* 

Where  Rule  to  Limit  Creditors  Has  Been  Taken, 

If  an  order  to  limit  creditors  under  the  sixty-seventh  section 
of  this  act"'  shall  be  obtained  by  the  executor  or  administrator, 
and  at  the  time  of  obtaining  such  order,  or  at  any  time  there- 
after, such  executor  or  administrator  shall,  by  application  in 
writing,  under  oath,  represent  to  the  orphans"  court  of  the 
proper  county  that  according  to  the  best  of  his  knowledge  and 
belief  the  real  and  personal  estate  of  the  decedent  is  insufficient 
to  pay  his  debts,  the  orphans'  court,  on  report  of  claims  and 
presentation  of  the  inventory,  of  the  real  and  personal  estate  of 
the  decedent,  as  hereinabove  prescribed,  may  decree  the  estate 
to  be  insolvent,  and  make  order  for  the  sale  of  lands  and  real 
estate,  as  in  case  of  insolvent  estates,  without  the  application 
and  notice  to  creditors,  mentioned  in  the  one  hundredth  sec- 
tion f  provided,  that  the  notice  to  creditors,  which  is  required 
to  be  given  by  the  order  to  limit  creditors,  shall  have  been  given, 
and  the  executor  or  administrator,  with  the  notice  that  the  re- 
port of  claims  will  be  made,  shall  also  give  notice  that  he  will 
thereupon  make  application  to  have  the  said  estate  decreed  in- 
solvent." 

An  executor  who  has  taken  an  order  to  limit  creditors  may 
at  any  time  thereafter  have  the  estate  declared  insolvent  under 
this  section.^  In  proceedings  under  this  section,  the  executor 
or  administrator  presents  his  petition  to  the  orphans'  court,  re- 
citing the  making  of  the  order  to  limit  creditors  and  the  fact 
that  he  believes  the  estate  to  be  insolvent,  and  praying  that  the 
court  will  so  decree.    The  court  will  thereupon  make  its  order 

■*Hutcliinson  v.  Newljoltl,  45  N.          'Orphans'   Court   Act,   sec.    109. 

J.  Eq.,  698.  3  Comp.  Stat..  3851. 

■''See  p.  558.  supra.  8\'on  Arx  v.  Wemple,  43  N.  J. 

''See  p.  <^A.  supra,  L..  154. 


586  Probate  Law  and  Practice. 

fixing  the  time,  which  must  be  at  least  two  months  distant,  for 
the  executor  or  administrator  to  report  to  the  court  the  claims 
presented  to  him.  Notice  of  his  intention  to  make  such  report 
is  given  by  the  executor  or  administrator  as  in  other  cases." 

Effect  of  Application  on  Pending  Actions. 

If  anv  action  be  pending  against  said  executor  or  adminis- 
trator, at  the  time  of  making  the  application  in  the  one  hun- 
dredth section  mentioned,"  or  be  brought  against  such  execu- 
tor or  administrator  after  the  making  of  the  said  application, 
the  plaintiit  may  proceed  to  final  judgment  therein,  unless  the 
claim  shall  be  adjusted  as  hereinbefore  directed,  or  otherwise; 
but  no  execution  shall  in  any  case  issue  after  the  making  of 
said  application ;  and  the  amount  of  such  judgment,  when  re- 
covered, shall  be  the  sum  on  which  the  creditor  shall  receive 
his  ratable  proportion  as  aforesaid.^ ^ 

An  application  to  the  orphans'  court  by  an  administrator  to 
have  an  estate  declared  insolvent  does  not  bar  an  action,  nor 
can  the  administrator  set  up  such  application  by  plea  as  a  de- 
fense to  the  action;^-  nor  will  such  an  application  bar  a  scire 
facias  issued  to  revive  a  judgment  entered  before  the  applica- 
tion was  made,  it  not  being  such  an  action  as  the  statute  con- 
templates, nor  will  it  prevent  the  issuing  of  execution  upon 
such  judgment  when  revived.^^ 

When  a  rule  to  limit  creditors  has  been  taken  by  the  personal 
representative,  and  upon  a  subsequent  application  such  estate 
has  been  declared  insolvent,  the  application  for  a  decree  of 
insolvency  annexes  itself  to  the  initial  order,  and  thus  becomes 
contemporaneous  with  the  order  of  limitation ;  consequently, 
a  judgment  obtained  against  the  representative  between  the 
time  of  taking  such  rule  and  making  such  application  will  not 
be  entitled  to  be  paid  in  preference  to  other  creditors,  and  if 
moneys  have  been  received  by  virtue  of  an  execution  issued 
upon  such  judgment,  they  will  be  ordered  to  be  paid  to  the 

9See  p.  587,  infra.  ^-Howell  v.   Polts,  20  N.  J.  L.. 

i°Page  584,  supra.  569. 

i^Orphans'  Court  Act,  sec.   106.          ^sHowell    v.     Potts,    20    N.    J. 

3  Comp.  Stat.,  3851.  L.    i. 


Insolvent  Estates.  587 

personal  representati\e  to  be  applied  ratably  among:  the  credi- 
tors.'^ 

Method  of  Staying  Execution. 

If  within  the  provisions  of  the  statute,  the  relief  provided 
may  be  ol^tained  by  motion  to  stay  the  execution  wrongly 
issued.'"' 

When  Execution  Stayed, 

The  application  of  an  e.xecutor  or  administrator  to  the  or- 
phans" court,  representing  that  the  real  and  personal  estate  of 
the  decedent  are  insufficient  to  pay  his  debts,  will  prevent  the 
subsequent  issuing  of  execution  in  those  cases  that  are  pending 
when  or  are  commenced  after  the  application  is  made ;  but  the 
application  to  afford  protection  to  the  administrator,  must  lie 
made  before  judgment  is  entered."'' 

Actions  Against  Executors  After  Decree  of  Insolvency. 

After  the  orphans'  court  has  reguk.rly  declared  an  estate  in- 
solvent, no  action  can  be  brought  and  maintained  against  the 
executor  or  administrator,  except  upon  a  claim  presented  and 
disputed  for  the  purpose  of  adjusting  it ;  and  the  decree  of 
insolvency  may  be  pleaded  in  bar.'" 

NOTICE  TO  CREDITORS. 

Publication  of  Notice. 

The  statute  provides  that  the  executor  or  administrator  shall 
give  notice  to  the  creditors  of  the  estate  by  setting  up  such 
notice  in  five  of  the  most  public  places  in  the  county,  for  the 
space  of  two  months,  and  also  by  advertising  the  same  at  least 
once  in  each  week  for  the  like  period  in  one  or  more  of  the 
newspapers  in  this  state,  as  may  be  appointed  by  the  said  court 
and  such  further  notice,  if  any.  as  the  said  court  shall  direct. '"* 

'^Wcnipk-  V.  \'on  .\r.x.  46  N.  J.  PouLson,   40   N.   J.   L.,   284.     \'on 

k.,  531.  Arx  v.  Wemple,  45  N.  J.  L..  87. 

'^Howell  V.  Potts.  20  N.  J.  L.,  ^'Reeves  v.  Tovvnsend,  22  N.  J. 

569.  L.,  396.     Smith  v.  Crater,  43  N.  J. 

i^Howcll   V.   Potts.  20  N.  T.  k..  Rq..  636. 

I.     Taylor   v.   Volk.   38   N.    T.  L.,  ''^(  )rpliaiis'  Court   .Xct,  sec.   100. 

204.       Unir.n     National     Bank  v.  3  Comp.  Slat.,  3848. 


588  Probate  Law  and  Practice. 

Form  of  Notice. 

The  notice  required  to  be  given  by  the  foregoing  section 
of  the  Orphans'  Court  Act  shall  be  given  by  setting  up  and 
publishing  a  notice  stating  that  the  order  has  been  made,  at 
what  time  (its  date),  on  whose  application,  in  what  court  and 
what  directions  are  thereby  given,  and  not  liy  setting  up  and 
publishing  a  copy  of  the  order/'' 

PRESENTATION  OF  CLAIMS. 

Method  of  Presenting  Claims. 

The  claims  presented  to  the  executor  or  administrator  shall 
be  in  writing  specifying  the  amount  and  ])articulars  thereof 
and  verified  by  oath  ;  and  any  debt  or  claim  which  shall  be  due 
and  payable  in  the  future  may  be  presented,  a  reasonable  rebate 
of  interest  being  made,  when  interest  is  not  accruing  on  the 
same.-" 

When  Claims  Must  be  Presented. 

Creditors  are  required  to  exhibit  their  claims  against  the 
estate,  under  oath  or  affirmation,  to  the  executor  or  adminis- 
trator, within  the  period  limited  by  the  order  of  the  court ; 
which  period  commences  running  from  the  date  of  the  order 
(unless  otherwise  directed  in  said  order),  and  not  from  the  time 
of  putting  up  tlie  notices  recjuired  by  the  statute.-^  Where  a 
claim  was  deposited  in  the  postoffice  in  time  so  that  it  should, 
in  the  regular  course  of  the  postal  service,  have  been  delivered 
to  the  executor  on  the  evening  of  the  last  day  of  the  time 
limited  for  the  presentation  of  claims,  but  was  not  delivered 
until  the  following  day,  it  was  held  that  the  claim  was  not  pre- 
sented within  the  time  limited. "- 

Extension  of  Time  for  Presenting  Claims. 

The  orphans'  court,  before  distribution  made,  may,  upon 
the  application  of  any  creditor  of  any  insolvent  decedent,  extend 
the  time  within  which  claims  may  be  presented  by  creditors  of 

i^Orphans'  Court  Rule,  40.  -iCoppuck  v.  Wilson,    15   N.  J. 

-"Orphans'  Court  Act,  sec.   loi.       L,.,  75. 
3  Comp.  Stat.,  3850.  22Eii;son   v.    Lindsey.    33    N.   J. 

Eq.,  258. 


Insolvent  Estates.  589 

such  decedent  upon  such  terms  as  the  court  may  deem  just; 
and  such  notice  of  such  appHcation  as  the  court  may  deem 
proper  shall  be  given  to  the  executor  or  administrator  of  such 
deceased  insolvent.-^  This  section  was  first  enacted  in  1893.-* 
Where  an  order  extending  the  time  for  presentation  of  claims 
against  an  insolvent  estate  is  revoked  by  the  court  as  improvi- 
dently  granted,  no  appeal  will  lie  from  the  latter  order,  which 
is  one  resting  in  the  discretion  of  the  court. -^ 

It  is  to  be  observed  that  the  statute  authorizes  the  orphans' 
court  before  distribution  made  to  extend  the  time  in  which 
claims  may  be  presented.  The  word  distribution  as  used  in 
this  section  undoubtedly  means  final  distribution  ;  the  court  is 
therefore  justified,  in  its  discretion,  in  extending  such  time 
after  partial  distribution.  This  course  was  followed  by  the 
Essex  County  Orphans'  Court  in  the  settlement  of  the  estate 
of  Charles  A.  Feick. 

Claims  Barred  by  the  Statute  of  Limitations. 

If  an  estate  is  solvent,  it  admits  of  no  doubt  that  the  personal 
representative  may  waive  the  statute  of  limitations  as  to  the 
claim  of  a  creditor  of  the  estate  which  appears  to  be  honestly 
due ;-"  and  there  appears  to  be  no  reason  why  a  different  rule 
should  be  applied  to  the  case  of  an  insolvent  estate.  It  is  true 
that  the  admission  of  the  claim  will  diminish  the  dividend  of 
the  other  creditors ;  but  creditors  have  no  greater  rights  than 
have  legatees  or  distributees  of  a  solvent  estate,  whose  inter- 
ests are  likewise  diminished  by  the  failure  of  the  personal  repre- 
sentative to  set  up  the  statute.-"  When  a  claim  against  an  in- 
solvent estate  is  excepted  to,  the  orphans"  court  has  jurisdiction 
to  adjudicate  thereon,  unless  the  claimant  elects  to  proceed 
against  the  personal  representative  at  law  or  in  equity ;  and 
when  such  election  is  made  by  a  claimant,  the  personal  repre- 
sentative is  not  bound  to  interpose  the  bar  of  the  statute  of 
limitations.-* 

-^Orphans'  Court  Act,  sec.  112.  -♦'See  p.  526,  supra. 

3  Comp.  Stat.,  3852.  27Wheedon  v.  Nichols,  72  N.  T. 

2*See  P.  L.  1893,  p.  268.  Eq..  366. 

2BKing  V.  Rockhill,  41  N.  J.  Eq.,  =8\\'|-,eeclon  v.  Nicliols,  72  N.  J. 

273.  Eq.,  366. 


590 


Probate  Law  and  Practice. 


Personal  Representative  May  Present  His  Own  Claim. 

A  personal  representative  administering  an  insolvent  estate, 
under  the  statute,  may  present  his  own  claim  against  the  estate, 
and,  unless  it  is  made  to  appear  to  be  dishonest  or  fraudulent, 
may  be  admitted  to  participate  in  the  distribution  of  the  assets 
on  the  same  footing  as  other  creditors :  and  the  orphans'  court 
cannot  disallow  the  claim  solely  on  the  ground  that  the  statute 
of  limitations  has  run  against  it."'  It  admits  of  no  doulst. 
however,  that  a  personal  representative  of  an  insolvent  estate 
cannot  retain  the  amount  of  the  claim  out  of  the  assets  of  the 
estate,  as  against  other  creditors  ;  he  must  come  in  on  an  equal- 
ity with  other  claimants  of  the  same  degree. ^° 

Preferred  Claims  Must  be  Presented. 

A  creditor  holding  a  preferred  claim  against  an  insolvent 
estate  must  present  it  under  oath  to  the  personal  representative 
within  the  time  limited  by  the  order  of  the  court,  or  be  barred. ^^ 

What  Claims  Need  Not  be  Presented. 

A  creditor  who  has  obtained  judgment  against  the  defendants 
as  administrators,  before  the  order  is  taken,  need  not  present 
such  claim  under  oath  or  affirmation. '"•- 

Form  of  Affidavit. 

It  is  not  essential  that  an  affidavit  made  by  a  creditor  to  his 
account  presented  to  the  executor  or  administrator  should  show 
on  its  face,  or  in  the  jurat,  where  it  was  sworn.''' 

Effect  of  Presenting  Claims. 

A  widow  who  presents  her  claim  to  the  executor  or  adminis- 
trator of  an  insolvent  estate  under  an  ante-nuptial  contract  to 
release  dower  in  consideration  of  a  provision  out  of  personal 
property,  and  accepts  her  /to  rata  share  of  the  estate  thereon, 

23Wheedon  v.  Nichols.  72  N.  T.  s-Howell  v.   Potts.  20  N.  T.  L.. 

Eq.,  366.  569. 

30Wheedon  v.  Nichols.  72  N.  T.  •■■'■Smitli  v.  Ahbott,   17  N.  J.  L., 

Eq..  366.  358. 

"^Fogg's  Case.  37  N.  J.  Eq..  238. 


Insolvent  Estates.  591 

is  barred  from  claiming  her  dower."*  The  presentation  of  a 
claim  to  an  administrator  after  he  has  initiated  proceedings  to 
declare  the  estate  insolvent  suspends  the  running  of  the  statute 
of  limitations.^^ 

Effect  of  not  Presenting  Claim. 

Any  creditor  who  shall  not  exhibit  his  claim  to  the  executor 
or  administrator  as  aforesaid,  within  the  time  so  limited  and 
prescribed  shall  be  forever  barred  from  prosecuting  or  recover- 
ing his  said  demand  unless  the  estate  shall  prove  sufficient, 
after  all  debts  exhibited  and  allowed  are  fully  satisfied,  or  such 
creditor  shall  find  some  other  estate  not  inventoried  or  ac- 
counted- for  by  the  executor  or  administrator  before  distri- 
bution, in  which  case  such  creditor  shall  receive  his  ratable 
proportion  out  of  the  same;  provided,  hoivever,  that  the 
orphans'  court,  before  distribution  made.  may.  upon  the  appli- 
cation of  any  creditor  of  any  insolvent  decedent,  extend  the 
time  within  which  claims  may  be  presented  by  creditors  of  such 
decedent  upon  such  terms  as  the  court  may  deem  just ;  and 
such  notice  of  such  application  as  the  court  may  deem  proper 
shall  be  given  to  the  executor  or  administrator  of  such  de- 
ceased insolvent.^" 

If  a  creditor  of  an  insolvent  estate  neglects  to  exhibit,  under 
oath,  his  claim  to  the  administrator  of  his  deceased  debtor 
within  the  time  prescribed  by  the  rule  of  the  orphans'  court 
for  the  purpose,  he  will  not  be  allowed  to  come  in  for  a  ratable 
portion  of  the  estate  of  the  deceased  in  the  hands  of  the  ad- 
ministrator.''' An  executor's  verbal  statement  to  a  creditor 
of  the  estate  that  his  claim  was  alright,  and  that  he  would  pay 
it  as  soon  as  he  had  enough  money  on  hand  to  do  so,  will  not 
excuse  such  creditor's  neglect  to  formally  present  his  claim 
within  the  time  limited  by  the  order  of  the  court,  nor  estop 
the  personal  rei)resentative  from  setting  up  the  order.     If  the 

'■*Camden      Mutual      Insurance  tension    of    Time    for    Presenting 

.Association  v.  Jones.  22,  N.  J.  Eq.,  Claims."'  p.  588,  supra. 
171.  ^"V'anDyke   v.   Chandler,    10  N. 

-■'Smith  V.  Crater.  43  X.  J.  Eq.,  J.  L.,  49.     Coppuck  v.  Wilson,   15 

636.  N.  J.  L..  7S.    Gould  V.  Tingley,  16 

■'"Orphans'  Court  Aci,  sec.   112,  X.  J.   Eq.,  301.     Lewis   v.  Cham- 

3  Comp.  Stat..  .3852:   and  see  "Ex-  pion.  40  N.  J.  Eq.,  59. 

39 


592  Projjatf:  Law  and  Practice. 

estate  be  insolvent,  the  creditor's  claim  is  barred  of  a  dividend 
bv  his  failure  to  put  it  in  under  oath  within  the  limited  period, 
and  no  recognition  of  the  claim  by  the  executors  or  by  the 
orphan's  court  itself  can  supply  the  place  of  the  statutory 
requirement.^® 

Right  of  Debtor  to  Set  Off  His  Debt  Against  Claims  of 
Estate  upon  Him. 

One  who  is  indebted  to  an  insolvent  estate  may  set  off  his 
own  debt  against  claims  of  such  an  estate  upon  him,  but  cannot 
purchase  or  acquire  the  debts  of  others  to  the  estate  to  set-oft 
against  such  claims. ^^  But  where  one  who  is  indebted  to  an 
insolvent  estate  acquires  from  others  claims  against  tire  estate, 
and  brings  an  action  thereon  if  the  representative  of  the  estate 
sets  off  his  claim  against  plaintiff  by  plea,  a  verdict  on  the  issue 
then  made  must  be  treated  as  a  verdict  under  the  act  concern- 
ing set-oft' :  the  only  judgment  which  can  be  entered  on  such 
verdict  will  not  accord  with  the  intent  of  the  legislation  in 
respect  to  insolvent  estates,  but  the  verdict  should  not  be  set 
aside,  for  no  plea  at  law  can  be  devised  that  will  present  an 
issue  whereon  a  verdict  can  be  rendered  and  a  judgment  entered 
which  will  accord  with  that  legislation.  If  the  representative 
of  the  estate  has  a  remedy  under  such  circumstances,  it  must 
be  in  equity.*" 

REPORT  OF  CLAIMS  AND  ASSETS. 

Executor  to  Report  Claims  and  Present  Inventory  of  Assets. 

The  statute  requires  the  executor  or  administrator  to  make 
report  to  the  orphans'  court  of  the  several  claims  and  demands 
jvvhich  may  be  exhibited  against  said  estate,  particularly  specify- 
ing the  demand  and  amount  thereof  at  the  time  of  such  report, 
and  whether  by  judgment,  decree,  bond,  note,  book  account  or 
otherwise ;  and  to  exhibit  therewith  under  oath  to  the  said 
court,  a  true  and  just  account  of  the  moneys,  goods,  chattels, 
rights  and  credits  of  the   decedent,  which  have  come  to  his 

'^Lewis  V.  Champion.  40  N.  J.  v.   Dunn.   56  N.  J.  L.,   355.  at  p. 

Eq.,  59-  358. 

^^Receivers     v.     Paterson     Gas  ^^Crisp    v.    Dunn,   56   N.  J.   L., 

Light  Co.,  22>  N.  J.  L.,  283.    Crisp  355. 


IxsoLVKXT  Estates.  593 

knowledge,  hands  or  possession,  and  also  an  inventory  of  the 
real  estate  of  said  decedent,  which  may  have  come  to  his  or 
her  knowledge,  and  the  value  thereof,  as  near  as  may  be.*^ 

When  Report  to  be  Made  and  Filed. 

The  report  required  to  be  made  by  the  last  preceding  section 
may  be  made  at  the  term  in  which  such  limited  time  may  expire, 
or  at  the  term  next  after  such  time  may  expire,  or  at  some 
future  time  to  be  fixed  b}'  the  court  on  special  a])plication.  ^- 

Notice  of  Filing  Report. 

The  statute  requires  the  executor  or  administrator  to  give 
two  months'  notice  of  his  intention  to  make  such  report  by 
advertisement,  signed  with  his  name,  and  set  up  in  three  of  the 
most  public  places  in  the  country  where  such  decedent  resided 
at  the  time  of  his  death,  and  to  specify  therein  the  day  on 
which  such  report  will  be  made  to  such  court,  and  to  file  such 
report  in  the  surrogate's  of^ce  at  least  twenty  days  before  the 
day  named  for  presenting  the  same,  or  the  day  to  which  con- 
tinuance may  be  made  by  the  court/" 

Exceptions  to  Account  of  Executor  or  Claim  of  Creditor. 

Any  creditor  or  other  person  interested  may  file  exceptions 
to  the  account  and  exhibition  of  the  said  executor  or  adminis- 
trator, in  respect  to  the  amount  and  value  of  the  real  and 
personal  estate  of  the  said  decedent ;  and  the  executor  or  ad- 
ministrator, or  other  person  interested,  may  file  exceptions  to 
the  claim  or  demand  of  any  creditor,  or  any  part  thereof,  and 
in  case  no  exception  be  made  against  any  claim  or  demand  of 
a  creditor,  as  aforesaid,  it  shall  be  held  and  deemed  as  justly 
due ;  and  in  like  manner  the  account  of  said  executor  or  ad- 
ministrator, not  excepted  to,  shall  be  allowed  and  held  as  true." 

•"Orplians'  Court  .\ct,  sec.   102.  ■'•''Orphans'  Court  Act.  sec.   103. 

3  Comp.  Stat..  3850.  .3  Comp.  Stat.,  3850. 

■^-Orphans'  Court  .-Vet,  sec.  103.  •'^Orphans'  Court  Act,  sec.  104. 

3  Comp.  Stat..  3850.  3  Comp.  Stat..  3850. 


594  Probate  Law  and  Practice. 

When  Exceptions  May  be  Filed. 

The  statvite  provides  that  exceptions  shall  be  filed  on  or 
l)efore  the  day  specified  for  presenting  such  report  to  the  court, 
or  within  such  time  as  the  court  on  application  may  allow. *^ 

Extension  of  Time  for  Filing  Exceptions. 

The  power  to  extend  the  time  for  filing  exceptions  to  an 
executor's  account  is  discretionary,  and  no  appeal  lies  from 
an  order  revoking  such  an  extension  improvidently  granted.*' 

Hearing  on  Exceptions. 

Where  exceptions  are  filed  to  the  account  of  an  executot 
or  administrator,  or  to  claims  presented  by  creditors,  the  court 
shall  hear  the  proofs  and  allegations  in  the  premises,  at  the 
same  or  any  subsequent  court,  and  upon  such  exceptions, 
decree  and  determine  in  regard  to  said  claims  and  demands  of 
creditors,  respectively,  and  on  the  account  of  such  executor  or 
administrator,  in  respect  of  the  personal  estate,  as  may  be  just 
and  lawful.*^ 

In  Essex  County,  notice  of  fiHng  the  account  and  report  of 
claims  is  usually  given  for  a  motion  day,  at  which  time  the 
court  fixes  a  special  day  for  hearing  any  exceptions  filed  thereto. 

Jurisdiction  of  Court  Over  Disputed  Claims. 

The  statute  expressly  confers  upon  the  orphans'  court  au- 
thority to  try  disputed  claims  presented  against  insolvent 
estates.  In  such  case,  either  the  executor,  the  administrator, 
or  any  person  interested,  may  file  exceptions  against  the  claim 
of  any  creditor,  and  the  court  will  hear  the  proofs,  and  decree 
and  determine  in  regard  to  the  validity  of  the  claims. ^'^ 

^■'Orphans'  Court  Act,  sec.  104.  insolvent  estate  is  the  same  as  that 

3  Cmnp.  Stat.,  3850.  on  exceptions  to  an  account.     See 

^'■'King  V.  Rockliill.  41  N.  J.  Eq.  "Exceptions   to    Account,"   p.   660. 

273.  infra. 

^'Orphans'  Court  Act,  sec.  104.  ■^^Vreeland   v.   Vreeland,    16   N. 

3  Comp.  Stat.,  3850.    The  practice  J.  Eq.,  512.    Miller  v.  Pettit,  16  N. 

on   exceptions,   in   the  case  of   an  J.   L.,   421.     Wheedon   v.   Nichols. 

■72  N.  T.  Eq.,  366. 


LxsoLVKXT  Estates.  595 

Appeal  from  Decree  on  Exceptions. 

The  statute  gi^■es  either  party  the  right  of  appeal  from  a 
decree  of  the  orphans"  court,  on  exceptions  to  the  account  of 
the  executor  or  administrator,  or  to  claims  of  creditors,  within 
twenty  days  from  rendering  the  same,  and  not  after. '*'•' 

Creditor  May  Elect  to  Proceed  at  Law  or  in  Equity. 

If  any  creditor,  wliose  claim  or  demand  is  e.xcej^ted  to  as- 
aforesaid,  shall  elect  to  proceed  at  law  or  in  equity,  in  prefer- 
ence to  having  the  same  determined  by  the  orphans'  court,  such 
creditor  shall  so  proceed  immediately ;  and  the  sum  recovered 
against  the  executor  or  administrator,  if  any,  shall  be  the 
amount  upon  which  a  ratable  proportion  shall  be  paid  as  afore- 
said ;  and  in  case  any  executor  or  administrator  shall  desire 
to  have  the  claim  or  demand  of  any  creditor  against  the  estate 
determined  in  law  or  equity,  he  shall  give  notice  thereof  at 
the  term  at  which  report  is  made,  and  the  said  creditor  shall 
proceed  inmiediately  in  either  court,  as  his  case  may  be,  and  the 
sum  recovered  shall  be  the  amount  on  which  a  ratable  propor- 
tion shall  be  paid  as  aforesaid  ;  and  the  court  in  which  any  such 
action  may  be  brought  shall  take  order,  that  the  same  mav  l)e 
determined  as  speedily  as  possible.'*" 

Where  a  creditor  of  an  insolvent  estate,  whose  claim  has 
been  excepted  to,  elects  to  proceed  at  law  or  in  equity  to  enforce 
his  claim,  there  is  no  provision  that  permits  the  exceptant,  or 
any  other  person,  to  intervene  in  such  proceedings  and  make 
defense  to  the  claim.  The  estate  is  represented  by  the  executor 
or  administrator,  who  may,  if  he  see  fit,  refuse  to  interpose  the 
statute  of  limitations  against  a  claim,  if  he  admits  it  to  be 
honest :  nor  is  there  any  provision  b\-  which  exceptant,  or  any 
other  person,  may  compel  the  personal  representative  to  inter- 
]>ose  the  statute.''^ 

^"Orphans'  Court  .'\ct,  sec.  104.  ^iwheedon  v.  Nicliols.  72  N.   I. 

3  Comp.  Stat.,  3850.  Eq.,  366. 

^"Orphans'  Court  Act.  sec.   105. 
3  Comp.  Stat.,  3850. 


596  Probate  Law  and  Practice. 

DECREE  OF  INSOLVENCY. 
When  Granted. 

If  upon  the  adjustment  of  the  claims  and  demands  of  credi- 
tors, and  consideration  of  the  amount  of  the  personal  and  real 
estate,  and  value  thereof,  it  shall  appear  to  the  court  that  the 
real  and  personal  estate  is  insuiificient  to  pay  the  debts,  and 
that  the  estate  is  likely  to  l)e  insolvent,  the  said  court  shall  so 
decree,  and  shall  order  and  direct  the  said  executor  or  adminis- 
trator to  proceed  as  if  the  estate  was  insolvent. ^- 

Lands  May  be  Ordered  Sold. 

Upon  decreeing  an  estate  insolvent,  the  court  may  order  and 
direct  the  executor  or  administrator  to  make  sale  of  the  whole 
or  any  part  of  the  real  estate  of  the  testator  or  intestate,  from 
time  to  time,  as  may  appear  expedient,  in  such  manner  as  is 
now  or  may  hereafter  be  directed  in  case  of  an  executor  or 
administrator  directed  to  sell  lands  by  an  order  of  the  orphans' 
court,  for  the  payment  of  the  debts  of  a  testator  or  intestate.'^ 

The  practice  is,  where  there  are  lands,  to  include  in  the  decree 
declaring  the  estate  to  be  insolvent  a  general  authorization  for 
the  sale  of  such  lands.  The  further  proceedings  in  connection 
with  the  sale  of  such  lands  are  the  same  as  on  sale  of  lands 
for  the  payment  of  debts. ^^ 

Method  of  Selling  Lands  in  Other  Counties. 

It  shall  be  lawful  for  the  orphans'  court  of  any  other  county, 
upon  the  production  of  an  authenticated  copy  of  such  order 
and  decree  as  is  mentioned  in  the  last  preceding  section,  to 
order  and  decree  the  sale  and  conveyance  of  any  lands  or  real 
estate  of  such  decedent,  situate  in  such  other  county,  the  report 
of  which  sale  shall  be  made  to  the  said  orphans'  court  and 
if  confirmed  a  copy  of  such  report  and  confirmation  shall 
be  filed  and  recorded  and  the  account  of  the  proceeds  of  sale 

520rphans'  Court  Act,  sec.  107.  s^Orphans'  Court  Act,  sec.  107, 

3  Comp.  Stat.,  385,:.  3  Comp.  Stat..  3851. 

"'*See  p.  505.  supra. 


IxsoLVHXT  Estates.  597 

made  as  provided  in  section  eighty-six,^^  and  the  provisions  of 
section  ninety-tliree^**  shall  apply  to  such  sale  and  conveyance.^' 

EfFect  of  Decree. 

A  decree  of  insolvency  is  a  decree  in  favor  of  creditors  only, 
and  can  fasten  their  claims  upon  those  funds  only  which  are 
applicable  to  the  payment  of  debts.  If  the  deceased  had  in  his 
possession  at  the  time  of  his  death  any  assets  which  were  held 
by  him  in  trust,  a  decree  of  the  orphans'  court  cannot  take 
away  from  the  cestui  que  trust  any  rights  which  he  or  she 
has  in  those  assets.^* 

After  the  orphans'  court  has  regularly  declared  an  estate  to 
be  insolvent,  no  action  can  be  maintained  against  the  executor, 
except  upon  a  claim  presented  and  disputed,  for  the  purpose  of 
adjusting  it :   the  decree  of  insolvency  may  be  pleaded  in  bar.^* 

Reconsideration  of  Decree. 

The  orphans'  court,  in  case  of  the  insolvency  of  a  decedent, 
has  no  authority  to  reconsider  and  alter  its  final  decree  settling 
the  claims  on  the  estate,  or  to  change  the  amount  of  assets  in 
the  administrator's  hands  without  notice  to,  or  the  appearance 
of.  the  creditors  who  are  interested  in  the  estate;  nor  may  the 
court  make  any  alterations  in  the  account  as  sworn  to  in  such 
manner  as  to  carry  the  appearance  of  the  accountant's  having 
sworn  to  that  which  he  did  not.*^" 

Action  for  Waste  Not  Affected. 

The  statute  provides  that  nothing  therein  contained  shall 
prevent  an}'  person  from  maintaining  any  action  against  any 
executor  or  administrator  for,  or  in  respect  of,  anv  waste  or 
misapplication  C)f  the  estate  of  the  testator  or  intestate. "^^ 

•'^'Page  480.  supra.  s^Reeves  v.  Townsend.  22  N.  J. 

'"Page  513.  supra.                   '  L.,  396.    Smith  v.  Crater.  43  N.  J. 

'^Orphans'  Court  Act.  sec.   108.  Eq..  636. 

3  Comp  Stat..  3851.  soEat-in  v.  Brick.  16  N.  J.  L..  98. 

5"'Kocli   V.   Feick.  Si    N.  J.   Eq.,  s^Orphans'  Court  \ct.  sec.   113. 

120.  3  Comp.  Stat..  z?'^2. 


598  Probatk  Law  and  Practice. 

DISTRIBUTION   OF   PROCEEDS   OF   ESTATE. 

Proceedings  After  Decree  of  Insolvency. 

After  obtaining  a  decree  declaring  the  estate  likely  to  be 
insolvent,  the  personal  representative  proceeds  to  reduce  the 
assets  of  the  estate,  real  and  personal,  into  cash.  After  this 
has  been  accomplished,  he  should  pay  all  preferred  debts,  and 
proceed  with  the  settlement  of  his  accounts  in  the  orphans' 
court ;  but  in  administering  an  insolvent  estate,  the  executor  or 
administrator  should  always  bear  in  mind  that  the  utmost 
economy  should  be  exercised  in  the  interest  of  creditors,  who 
will  be  required,  owing  to  the  insolvency,  to  accept  less  than 
the  full  amount  due  them.*^-  In  his  account  he  will,  on  the  one 
hand,  charge  himself  with  all  the  assets  collected  by  him,  and, 
on  the  other,  pray  allowance  for  all  preferred  claims  paid  by 
him.  The  account  must  be  noticed  for  settlement,  and  allowed 
by  the  orphans'  court,  as  in  the  case  of  a  solvent  estate  f^  and 
u])on  its  allowance,  the  court  will  order  that  from  the  balance 
found  to  be  in  the  hands  of  the  executor  or  administrator  his 
commissions  and,  in  a  proper  case,  a  counsel  fee  to  his  proctor 
be  first  paid,  and  that  the  balance  be  distributed  among  the  un- 
preferred  creditors  pro  rata.  The  decree  of  distribution  is 
usually  combined  with  the  decree  allowing  the  account. 

Creditors  to  Share  Pro  Rata. 

The  proceeds  of  the  said  personal  and  real  estate  of  the 
testator  or  intestate,  which  shall  come  to  the  hands  of  the 
said  executor  or  administrator  (the  preferred  debts  and  the 
reasonable  allowance  which  may  be  decreed  by  the  court  to  the 
executor  or  administrator,  for  care  and  expenses,  being  first 
paid),  shall  be  distributed  to  the  said  several  creditors  by  the 
said  executor  or  administrator,  in  proportion  to  the  sums  that 
shall  be  found  due  to  them  respectively,  as  aforesaid,  under  the 
direction  of  the  said  court,  from  time  to  time,  as  may  be  found 
convenient  and  just ;  and  the  said  court  may  enforce  obedience 
to  such  orders  and  directions  by  attachment.®* 

f'2In  re  Wiley.  65  Atl.  Rep.,  212.  '''^Orphans'  Court  Act.  sec.  no. 

^"Set  p.  641.  infra.  3  Comp.  Stat.,  3852. 


IXSOLVKNT  ESTATKS.  599 

Disposition  of  Residue  After  Payment  of  Debts. 

If  it  should  happen  that  there  is  enougli  produced  from 
such  real  and  personal  estate  to  make  full  payment,  and  any 
residue  of  the  said  estate  shall  remain  in  the  hands  of  the 
executor  or  administrator,  after  paying  all  the  said  debts  and 
expenses,  the  said  residue  shall  be  divided  among  the  heirs  of 
the  intestate,  in  such  proportions  as  the  said  real  estate  would 
have  descended,  or  in  case  of  a  will,  as  the  said  will  directs.''^ 

^^Orphans'  Court  Act.  sec.  in. 
3  Comp.  Stat..  3852. 


CHAPTER  XXX. 

REMOVAL    OF    EXECUTORS,    ADMINISTRATORS. 
GUARDIANS  AND  TRUSTEES. 

Jurisdiction  of  Orphans'  Court. 

The  orphans'  court  has  no  inherent  power  to  remove  execu- 
tors, administrators,  guardians  and  trustees,  and  can  only  act 
in  those  cases  where  it  is  authorized  by  statute  so  to  do^  and 
so  the  mere  fact  that  an  executor  or  administrator  is  insolvent 
is  not  a  sufficient  reason  for  removing  him,  insolvency  not  being 
one  of  the  statutory  grounds  for  removal ;-  but  the  orphans' 
court  has  jurisdiction,  upon  the  application  of  the  sureties  of  an 
habitual  drunkard's  guardian,  to  remove  such  guardian  for 
failure  to  account,  or  for  waste. ^ 

STATUTORY    GROUNDS    FOR    REMOVAL. 

Disobedience  of  Order  of  Court. 

The  statute  provides  that  when  any  order  or  decree  shall 
be  made  by  the  orphans'  court  that  any  executor,  adminis- 
trator, guardian  or  trustee  shall  file  an  inventory  or  account, 
or  that  any  executor,  administrator,  guardian  or  trustee  shall 
give  security  or  additional  security,  or  shall  do  or  perform  any 
act  or  thing  which  the  court  by  the  Orphans'  Court  Act  is  au- 
thorized to  order  or  direct,  and  such  executor,  administrator, 
guardian  or  trustee,  having  legal  notice  of  such  decree  or  order, 
shall  refuse  or  neglect  to  perform  or  obey  the  same  within 
such  time  as  the  court  shall  name,  the  orphans'  court  may 
revoke  the  letters  of  such  executor,  administrator,  guardian  or 
trustee,  and  remove  him  from  office.* 

^Sherman    v.    Lanier.    39  N.   J.          ^Djckerson  v.  Dickerson,  31  N. 

Eq.,  249-258.  T.  Eq..  652. 

^Schanck   v.    Schanck,    7  N.    J.          ^Orphans'   Court   Act.   sec.    149. 

Eq..  140.  3  Comp.  Stat.,  3868. 

600 


Removal  of  Executors.  Etc.  '         6oi 

The  fact  that  the  orphans'  court  ordered  an  executor  to 
give  additional  security  and  file  another  account,  and  the  execu- 
tor gave  the  bonds  required,  will  not  oust  the  court  of  its  juris- 
diction to  remove  him  for  sufificient  cause,  on  the  presentation 
of  his  accounts.''^ 

Waste  and  Misco-nduct  of  Trustee, 

The  statute  provides  that  if  it  shall  be  made  to  appear  before 
the  orphans'  court  by  proof,  on  complaint  duly  made  by  any 
person  interested,  that  any  executor,  administrator,  guardian 
or  trustee  has  embezzled,  wasted  or  misapplied  any  part  of 
the  estate  committed  to  his  custody,  or  has  abused  the  trust  and 
confidence  reposed  in  him,  the  said  orphans'  court  may  revoke 
the  letters  of  such  executor,  administrator  or  guardian,  and 
remove  such  executor,  administrator,  guardian  or  trustee  from 
office.'^ 

It  is  not  for  every  unwarranted  act  of  omission  or  commis- 
sion that  an  executor  is  to  be  removed ;  where  he  has  strayed 
from  the  path  of  fiduciary  duty,  he  may  be  compelled  to  secure 
those  who  might  sufifer  loss  by  reason  of  his  dereliction  and  the 
stigma  of  removal  should  be  placed  upon  him  only  in  a  flagrant 
case;'  but  for  acts  done  in  bad  faith,  or  that  have  diminished 
or  endangered  the  trust  fund,  without  l)ad  faith,  it  is  the  duty 
of  the  court  to  remove  him.* 

In  the  case  of  Heisler  v.  S'liarp,^  it  was  said  that  no  man  is 
infallible,  but  that  the  wisest  make  mistakes,  and  that  the  law 
holds  no  man  responsible  for  the  consequences  of  his  mistakes 
which  are  the  result  of  the  imperfection  of  human  judgment, 
and  which  did  not  proceed  from  fraud,  gross  carelessness  or 
indifference  to  duty;  and  it  is  settled  that  an  executor  will  not 
be  remo\ed  unless  it  appears  that  he  has  been  guilty  of  batl 
faith,  or  that  the  estate  has  been  wasted  or  misapplied.^"     So 

^Shreve  v.   Wampole.   38  N.  J.  'Lathrop   v.    Smalley.    23   N.   J. 

Eq.,  490.  Eq..   IQ2. 

•■'Orphans'   Court   Act.   sec.  149.  '44  N.  J.  Eq.,  167-172. 

3  Comp.  Stat.,  3868.  "Carpenter   v.    Gray,   32    N.   j. 

^Pfefferle  v.  Herr,  75  N.  J.  Eq.,       Eq..  692.     Affirmed  34  N.  J.  Eq.. 

219.     Affirmed  77  N.  J.  Eq.,  271.      282.    Lathrop  v.  Smalley,  23  N.  J. 

Lathrop  v.  Smalley,  23  N.  J.  Eq.,       Eq.,  192. 
192. 


6o2  Probate  Law  and  Practice. 

the  fact  that  an  executor  or  trustee  allowed  taxes  on  the  testa- 
tor's real  estate  to  become  defaulted,  so  that  penalties  and  inter- 
est were  added  to  them  and  part  of  the  land  was  sold  for  taxes, 
does  not  justify  his  removal  from  office,  where  it  appears  that 
the  property  has  l^een  redeemed  and  that  he  has  been  sur- 
charged with  all  penalties  and  interest  paid  to  ettect  the  re- 
demption ;"  and  the  mere  fact  that  an  executor  and  trustee  paid 
to  the  children  of  testator  sums  in  excess  of  the  income  of  the 
estate,  although  the  will  directed  that  none  of  the  corpus  of  the 
estate  should  be  paid  to  them  before  they  attained  a  certain 
age  and  that  until  that  time  they  should  have  so  much  of  the 
income  as  might  be  necessary  for  their  maintenance  and  edu- 
cation, does  not  justify  his  removal  from  office,  in  the  absence 
of  bad  faith  and  a  wanton  and  wasteful  invasion  of  the  corpus 
of  the  estate  for  their  maintenance  and  education. '- 

In  Flinn's  Case,^"  Chancellor  Runyon,  (Ordinary,  held  that 
it  was  not  proof  of  waste,  in  a  proceeding  to  remove  a  guard- 
ian, who  was  perfectly  responsible,  that  he  had  incurred  lia- 
bility to  pay  counsel  fees  in  a  controversy  over  his  management 
of  the  ward's  propertw  since  such  fees,  if  unlawful  or  un- 
necessary, might  be  disallowed  in  his  account ;  and  so  where  a 
trustee  is  a  responsible  person  of  large  property,  engaged  in 
no  hazardous  business,  and  the  trust  fund  has  not  been  in  any 
danger,  and  the  trustee  supposed  the  money  was  as  safe  in  his 
hands  as  in  any  investment  he  could  make,  and  that  by  retain- 
ing it  he  would  save  expense  to  the  fund  and  his  good  faith  is 
not  impeached,  he  will  not  be  removed  because  of  the  invest- 
ment of  the  funds  in  his  own  business  without  authority.^* 

The  mere  fact  that  a  trustee  has  had  olTers  for  the  purchase 
of  real  estate  devised  to  him,  which  should  have  been,  but  were 
not  in  fact  accepted,  and  that  he  failed  to  make  any  arrange- 
ment for  the  sale  of  the  property  at  public  sale,  are  not  grounds 
for  his  removal  under  this  section,  in  the  absence  of  proof  of 
some  abuse  of  confidence,  similar  in  its  nature  to  embezzle- 

iiPfefferle    v.    Herr.    75    N.    J.       Eq..  219.     Affirmed   77  N.    T.   Eq., 
Eq.,  219.     Affirmed   77  N.  J.  Eq.,       271. 
271.  ^331  N.  J.  Eq.,  640. 

i^Pfefferle    v.    Herr.    75    N.    J.  ^^Lathrop   v.   Smalley.  23   N.  J. 

Eq..  192. 


Removal  ok  Executors,  Etc.  603 

ment  or  misappropriation  of  funds  ;'^  and  the  mere  fact  that  an 
executor  and  trustee  sold  his  testator's  real  estate  and  made 
excessive  payments  to  the  widow  on  account  of  her  dower, 
without  having  her  dower  interest  ascertained  according  to  law, 
will  not  justify  the  removal  of  the  executor  and  trustee,  at  least 
until  it  has  been  detinitely  ascertained  what  the  facts  are  as  to 
such  excessive  payments.^'"'  So  a  guardian  will  not  be  removed 
on  the  sole  ground  that  hostility  exists  between  him  and  his 
ward,  occasioned  by  the  misbehavior  of  the  ward;^'  but 
trustees  exist  for  the  benefit  of  those  to  whom  the  creator  of  the 
trust  has  given  the  trust  estate,  and  their  acts  may  exhibit  such 
a  lack  of  reasonable  fidelity,  short  of  dishonesty,  as  to  warrant 
their  remo\al.^^ 

If,  on  the  other  hand,  the  acts  or  omissions  of  the  executor 
or  trustee  be  such,  as  to  endanger  the  trust  property,  or  to 
show  a  want  of  honesty,  a  want  of  proper  capacity  to  execute 
the  duties,  or  a  want  of  reasonable  fidelity,  which  has  resulted 
in  diminishing  or  endangering  the  trust  fund,  he  will  be  re- 
moved.^^  So  where  an  executor  was  guilty  of  a  plain  derelic- 
tion of  duty  in  tw^o  specific  matters,  one  of  which  resulted  in 
loss  to  the  estate,  which  he  made  good  out  of  his  own  funds, 
and  in  the  other  of  which  a  fortunate  concurrence  of  circum- 
stances not  only  prevented  loss,  but  actually  produced  gain  to 
the  estate,  it  was  held  that  these  circumstances  were  not  suffi- 
cient to  relieve  him  of  the  effect  of  his  dereliction  of  duty ;  that 
if  he  were  retained  and  continued  to  manage  the  estate  upon 
the  conception  of  his  duties  as  disclosed  by  his  conduct  in  those 
cases,  the  result  might  be  losses  which  he  might  not  be  able  to 
make  good,  and  which  might  not  encounter  so  fortunate  a  con- 
currence of  circumstances.-" 

In  the  case  of  Lett  v.  Emmettr^  it  was  held  that  an  executor 
should  be  removed  because  he  sought,  by  false  representations 
and  by  taking  advantage  of  her  poverty,  to  induce  the  residuary 

i^In  re  Chittcndon,  24  N.  J.  L.  i^Lister  v.  Weeks,  60  N.  J.  Eq.. 

J"  719-  215.    .\ffirmed  61  N.  J.  Eq.,  675. 

"^Pfefferle    v.    Herr.    75    N.    J.  i^Holcomb  v.  Coryell,   12  N.  J. 

Eq.,  219.     Affirmed  77   N-  J-   Hq.,  Eq..   289,    at    p.    297.      Lathrop    v. 

271.  Smalley,  23  N.  J.  Eq.,  192. 

I'Heath   v.    ^[addock.   8r    \.  J.  -"In  re  Marsh,  56  Atl.  Rep.,  886. 

^■-n-  460.  -i.15-  N.  J.  Eq.,  53S. 


6o4  Probate:  Law  and  Practice. 

legatee  to  sell  her  interest  in  the  estate  to  him  for  one-fourth  of 
its  value,  there  Ijeing  here  no  case  of  mistake,  ignorance  or 
carelessness,  but  a  fraudulent  act  of  commission  of  the  most 
palpable  sort,  which  fully  merited  the  judgment  pronounced 
against  the  executor;  and  so  where  an  executor  loaned  money 
belonging  to  the  estate,  taking  the  borrower's  bond  therefor, 
secured  by  a  mortgage,  and  at  the  request  of  the  borrower  with- 
held the  mortgage  from  record,  with  the  result  that  the  bor- 
rower mortgaged  the  lands  to  another  person  and  afterwards 
conveyed  them  away,  so  that  the  security  of  the  mortgage  was 
injuriously  affected,  he  should  be  removed. -- 

Whether  a  co-trustee,  who  has  paid  no  attention  to  the  trust 
fund,  but  has  left  its  administration  entirely  in  the  hands  of 
the  acting  trustee,  will  be  removed,  depends  U]:)on  the  circum- 
stances of  each  case ;  and  if  the  acting  trutsee  has  properly 
discharged  the  trust,  the  other  will  not  be  remo\-ed.  P)Ut  if  one 
trustee  abandons  such  administration  to  another,  who  violates 
the  trust,  squanders  the  funds,  or  uses  them  in  his  own  busi- 
ness without  security,  and  such  conduct  is  known  to  the  co- 
trustee, he  is  as  guilty  of  a  breach  of  trust  as  the  acting  trustee, 
and.  like  him,  can  be  removed  for  such  conduct.-" 

The  misconduct  of  a  guardian  in  the  management  of  an- 
other trust  estate,  upon  an  application  to  remove  him  from 
office,  is  relevant  only  to  show  general  unfitness  for  fiduciary 
duty,  and  such  misbehavior  in  that  respect  may  not  be  invoked 
as  a  substantive  cause  for  removal.-*       ••;  !'i''':p..i:)'!  •:>;>''  '.»il 

Failure  to  File  Inventory  or  Account. 

The  Orphans'  Court  Act,-'  requires  executors  and  adminis- 
trators to  tile  an  in\entory  within  three  months  after  the  grant 
of  letters  to  them,  and  a  like  duty  is  placed  upon  guardians  ;-^ 
and  executors,  administrators,  guardians  and  trustees  are 
required   to   file   their   accounts    within   one   year   after   their 

--In  re  ]\Iarsh,  56  Atl.  Rep..  886.  =^Orphans'   Court   Act,   sec.  58, 

"^Lathrop  V.  Smalley,  23  N.  J.  p.  360,  supra. 
Eq.,  192.  -"Orphans'    Court   Act,    sec.   63. 

-4Heath  v.  IMaddock,  81  N.  J.  p.  364,  supra. 
Eq.,  469. 


Removal  of  Executors,  Etc.  605 

appointment.-'  It  has,  however,  been  held  that  these  pl■o^"isions 
of  the  Orphans'  Court  Act  are  merely  directory,  and  that  non- 
compliance, unattended  by  fraud,  gross  neglect  or  indifference 
to  duty  is  not  a  cause  for  removal  from  office  ;-®  but  a  refusal 
on  the  part  of  an  executor  to  account  for  assets  of  the  estate,  in 
the  court  where  he  is  bound  to  account,  and  evidence  of  a 
determination  on  his  part  to  invoke  the  aid  of  the  courts  of 
another  state  to  obtain  an  allowance  of  a  claim  rejected  by  the 
court  wherein  he  filed  it,  and  which  had  jurisdiction,  affords 
grounds  for  his  removal  from  office,  especially  where  it  is 
otherwise  apparent  that  he  has  wasted  and  misapplied  the 
estate. ^^ 

Non-Residence  or  Incapacity  of  Executor,  Etc. 

In  case  any  executor,  administrator,  guardian  or  trustee 
has  removed  or  shall  hereafter  remove  out  of  this  state  or 
does  not  reside  therein,  and  shall  neglect  or  refuse  to  proceed 
with  the  administration  of  the  estate  and  to  execute  and  per- 
form the  duties  and  trusts  devolving  upon  him,  or  shall  be  or 
become  of  unsound  mind  or  mentally  incapacitated  for  the 
transaction  of  business,  the  prerogative  court,  when  the  letters 
ha\e  been  issued,  or  the  appointment  made  by  the  ordinary,  or 
the  orphans'  court  of  the  county  where  the  letters  have  been 
granted,  or  the  appointment  made  upon  complaint  being  made 
by  any  person  interested  in  such  estate,  may  inquire  into  the 
matter  in  a  summary  manner,  and  revoke  such  letters  testa- 
mentary or  of  administration  or  of  guardianship  granted  to 
such  executor,  administrator  or  guardian,  and  remove  such 
trustee.^'^ 

PRACTICE. 
Notice  of  Application. 

Such  notice  of  such  application  shall  be  served  upon,  or 
mailed  to  such  executor,  administrator,  guardian  or  trustee,  as 
the  court  may  direct,  requiring  such  executor,  administrator, 

2'Orphans'  Court  Act,  sec.  114,  -^Gray  v.    (xray,    39   N.   J.    Eq., 

p.  616,  infra.  2^~- 

28Heath   v.   Maddock,   81    N.  J.  ^''Orphans'  Court  Act,  sec.   150. 

F.q.,  469-  3  Comp.  Stat.,  3869. 


Oo6  Probate  Law  and  Practice. 

guardian  or  trustee,  on  a  certain  day  to  be  named  therein,  to 
appear  before  said  court  and  show  cause  why  such  letters 
testamentary  or  of  administration  or  of  guardianship  shall 
not  be  revoked,  and  such  removal  made.^^ 

When  it  is  sought  to  remove  an  executor,  administrator, 
guardian  or  trustee,  notice  of  the  application  must  be  given  to 
him  ;  and  his  removal  without  such  notice  will  be  invalid.  So 
where  a  mother  was  appointed  guardian  of  her  child,  but  failed 
to  give  bond  within  the  time  limited  by  the  court,  and  the  court, 
without  notice,  appointed  a  stranger  in  her  stead,  the  appoint- 
ment of  the  latter  was  not  warranted/''- 

The  better  practice  is  to  obtain  a  rule  to  show  cause  why  the 
executor,  administrator,  guardian  or  trustee  should  not  be 
removed,  upon  a  proper  petition,  in  which  case  the  court  may 
direct  the  manner  in  which  the  rule  shall  be  served.^"  This 
method  of  procedure  will  frequently  solve  difficulties  in  the 
service  of  notice,  as  where  the  executor  is  a  non-resident,  or 
hi?  residence  is  unknown. 

JURISDICTION    OF    CHANCERY. 

Over  Removal  of  Executors. 

The  Court  of  Chancery  has  no  power  to  remove  an  execu- 
tor or  administrator.^*  It  has.  however,  power  to  remove  a 
trustee  f^'  and  where  an  executor  is  also  a  trustee,  and  the  mat- 
ters in  his  charge  as  trustee  can  l^e  separated  from  those  con- 
fided to  him  as  executor,  the  court  may  remove  him  as  trustee ; 
l:)Ut  in  such  case  he  will  be  left  to  execute  and  perform  his 
duties  as  executor.^'' 

Enjoining  Executors. 

Although  the  Court  of  Chancery  does  not.  as  has  been  seen, 
possess  the  power  to  remove  an  executor  from  office,  or  to 

"'Orphans'  Court  Act.  sec.  150.       J.   Eq.,   359.     Bolles  v.   Bolles,   44 

3  Comp.  Stat.,  3869.  N.  J.  Eq..  3S5.     Bentley  v.  Dixon. 

3-Weldon  v.  Keen,  27  N.  J.  Eq.,       60  N.  J.  Eq.,  353. 

251.  33Bolles  V.  Bolles,  44  N.  J.  Eq., 

^^Orphans'   Court  Act.  sec.  179.       3S5. 

3  Comp.  Stat.,  3879.  seLeddel  v.  Starr,  19  N.  J.  Eq., 

"*Leddel  v.  Starr,  19  N.  J.  Eq.,       159. 
159.     Newman   v.   \A''arner,  34   N. 


Kkmovai.  of  Executors,  Jvrc.  607 

cast  his  duties  as  executor  upon  a  receiver,  yet  when  the  duties 
of  an  executor  are  intermingled  with  and  inseparable  from  his 
duties  as  trustee,  the  jurisdiction  of  a  court  of  equity  over 
trusts  and  trustees  will  extend,  in  a  proper  case,  to  restraining 
him  from  performing  his  functions  as  trustee,  notwithstanding 
the  fact  that  such  restraint  will  incidentally  prevent  his  per- 
formance of  his  functions  as  executor  f'  and,  in  proper  cases, 
in  addition  to  enjoining  an  executor  from  further  proceeding 
in  the  execution  of  his  duties,  chancery  will  appoint  a  receiver, 
and  direct  the  executor  to  pay  over  the  estate  in  his  iiands  to 
the  receiver  to  be  administered  under  the  direction  of  the 
court;  but,  in  such  case,  he  is  not  removed  or  superseded  as 
executor.^^^  A  general  charge  of  abuse  of  trust  is  not,  how^ever, 
sufficient  grounds  for  the  interposition  of  the  court  to  restrain 
an  executor  from  further  interfering  with  the  estate ;  nor  will 
the  fact  that  the  executor  is  a  bankrupt  make  a  case  for  the 
interposition  of  the  court  by  injunction;-^''  and  so  with  insol- 
vency.*** 

Removal  of  Trustees  for  Incapacity. 

Chancery  will  remove  a  trustee  who  has  become  incompetent 
b}'  reason  of  long  illness.'*^ 

Intemperance. 

A  trustee  who,  through  continued  intemperance,  has  become 
unfit  to  have  charge  of  the  trust  property  will  be  removed. *- 

Violation  of  Duty. 

A  trustee  will  not  be  removed  for  every  violation  of  duty ; 
but  acts  done  in  bad  faith,  that  have  diminished  or  endangered 

3"Bentley  v.  Dixon,  60  N.  J.  Eq.,  ^oCooper  v.  Cooper.  5  N.  J.  Eq.. 

353-.  i-ii. 

38Leddel  v.  Starr,  19  N.  J.  Eq..  •'"Schanck   v.   Schanck.   7   N.  J. 

159.     Price  V.  Price,  23  N.  J.  Eq..  Eq.,  140. 

428.     Belles    V.    BoUes,    44    N.   J.  ■•'Babbitt    v.    Babbitt.   26    N. 'j. 

Eq.,  385.    Bentley  v.  l^ixon,  60  N.  Eq.,  44-54. 

J-  Eq.,  353.  ■<2Bayles  v.  Staats.  5  N.  J.  Eq.. 

513. 

40 


^S  Probate  Law  and  Practice. 

the  trust  fund,  will  justify  his  removal.*^     v^o  a  trustee  may 
be  removed  for  vexatious  and  tr<juI)lesome  conduct.^"' 

DUTIES    OF    REMOVED    EXECUTOR. 
In  General. 

When  any  executor,  administrator,  guardian  or  trustee 
shall  be  removed  or  discharged  by  the  prerogative  court  or 
orphans'  court,  he  shall  immediately  thereafter  deliver  over  to 
the  newly-appointed  administrator,  guardian  or  trustee ;  or  to 
his  co-executor,  co-administrator,  or  joint  guardian  or  tustee, 
who  shall  remain  such,  all  goods  and  chattels,  moneys  and 
effects,  and  other  assets  which  he  may  hold  as  such  executor, 
administrator,  guardian  or  trustee;  and  shall,  at  the  next  term 
of  said  court,  state  and  settle  his  account ;  and  within  sixty 
days  after  such  settlement  shall  pay  the  balance  shown  to 
be  due  to  the  newly-appointed  administrator,  guardian  or 
trustee,  or  his  co-executor,  co-administrator,  or  joint  guardian 
or  trustee,  as  the  circumstances  of  the  case  may  require  or  the 
court  may  order ;  and  on  failure  thereof  the  court  may  en- 
force the  performance  of  such  order  by  a  fine  not  exceeding  the 
amount  of  the  estate  in  the  hands  of  such  executor,  adminis- 
trator, guardian  or  trustee  so  removed,  to  be  collected  by 
execution  against  the  goods  and  chattels  and  lands  of  such 
defaulter  in  favor  of  the  person  to  whom  the  defaulter  should 
have  made  such  payment  or  delivery  as  aforesaid,  or  the  pay- 
ment of  such  fine  or  performance  of  such  order  may  be  en- 
forced by  attachment  for  contempt ;  and  such  fine,  when 
collected,  shall  be  paid  to  the  representative  oT  the  estate,  who 
shall  account  for  the  same  when  received  as  assets  of  the 
estate/^ 

Upon  the  removal  of  an  executor,  it  is  his  duty  immediately 
to  deliver  to  the  administrator  with  the  will  annexed  appointed 
in  his  stead  all  goods  and  chattels,  moneys  and  effects  in  his 
hands  belonging  to  the  estate;    and  it  is  not  only  lawful,  but 

•*3Holcomb  V.  Coryell,  12  N.  J.  Eq..  192.     Lister  v.  Weeks,  60  N. 

Eq.,  289.     Lathrop  v.   Smalley,  23  J.  Eq.,  215.    Affirmed  61  N.  J.  Eq.. 

N.  J.  Eq.,   192.     Crane  v.  Hearn,  675. 

26  N.  J.  Eq..  378.  ^sOrphans'  Court  Act,  sec.   152. 

*^Lathrop   V.   Smalley,   23  N.  J.  3  Comp.  Stat..  3870. 


Removal  of  Executors,  Etc.  609 

eminently  proper  for  the  orphans'  court  to  direct  the  immediate 
delivery  of  such  property  by  the  removed  executor  to  his  suc- 
cessor. The  provisions  of  the  iS^d  section  of  the  Orphans' 
Court  Act,*"  are  not  inconsistent  with  the  rule  as  above  laid 
down.  The  object  of  the  law  is  to  get  out  of  the  hands  of  the 
removed  executor  all  property  it  is  then  ascertained  tliat  he 
has,  and  to  give  him  sixty  da\s  to  settle  his  account.  If  upon 
such  settlement  it  shall  appear  that  he  has  a  balance,  it  is  then 
his  duty  to  deliver  that  also  to  his  successor.  If.  on  the  other 
Iiand,  it  appears,  upon  the  settlement  of  his  account,  that  the 
removed  executor  has  l)y  mistake  delivered  over  too  much 
money,  the  orphans'  court  will  direct  the  administrator  with 
the  will  annexed  to  refund  the  same.*'  The  orphans'  court 
has,  however,  no  authority,  under  the  provisions  of  this  section, 
to  attach  for  contempt  an  executor  because  he  refuses  to  obey 
an  order  requiring  him  to  turn  over  the  assets  of  an  estate  in 
his  hands  to  a  co-executor,  if  such  order  be  made  while  he  is 
still  in  office.  That  power  comes  into  existence  only  after 
removal  from  office  of  such  executor.*'^ 

Liability  of  Removed  Executor. 

The  discharge  or  removal  of  any  executor,  administrator, 
guardian  or  trustee,  for  any  cause  authorized  by  the  Orphans' 
Court  Act,  shall  not  release  or  discharge  him,  or  the  surety 
or  sureties  or  any  of  them  from  liability  for  the  estate  or 
any  part  thereof  which  has  been  received,  or  which  ought  to 
have  been  received  by  him  or  them,  or  for  any  neglect,  default, 
miscarriage  or  breach  of  trust  in  the  execution  of  his  office.*'' 

REVOCATION  OF  LETTERS. 

In  General. 

The  revocation  of  letters  testamentary,  of  administration, 
or  of  guardianship,  is  something  very  different  frf)m  the  re- 
moval of  an  executor,  administrator,  guardian  or  trustee, 
although  these  proceedings  are  often  confused.     Letters  are 

^'■•Page  608,  supra.  ■''♦Sniitli  v.   Smith,  80  N.  J.  Eq., 

■»".\I(1  ridge  v.  McClelland,  34  N.      478. 
J.  F,q.,  237.  <90rphans'  Court  Act,  sec.   153. 

3  Comp.  Stat..  3870. 


6io  Probatr  Law  and  Practicf;. 

revoked  only  when  they  were  improperly  or  improvidently 
issued,  while  the  removal  of  an  executor  is  resorted  to  only  for 
some  cause  occurring  after  the  grant  of  letters. 

Control  of  Orphans'  Court  Over  Decrees  of  Surrogate. 

It  is  entirely  settled  that  the  surrogate  holds  a  court,  and 
that  a  grant  of  letters  by  him  is  a  proceeding  /;/  rem,  resulting 
in  a  judgment  which  may  not  be  impeached  collaterally,  and 
mav  be  attacked  in  the  orphans'  court  only  by  appeal.""  In 
the  case  of  /;/  re  Clement's  Appeal,^^  it  was  held  that  the 
orphans'  court  has  power  to  revoke  letters  of  guardianship 
obtained  through  false  representations  made  to  the  surrogate ; 
this,  however,  was  a  case  of  guardianship,  in  which  the  orphans' 
court  had  original,  as  well  as  appellate  jurisdiction.  In  the  case 
of  Morris  v.  Morris.^-  it  was  held  that  the  orphans'  court  has 
jurisdiction  to  try  de  novo  the  right  of  administration  after  it 
had  been  granted  by  the  surrogate.  This  case  was,  however, 
criticized  in  the  case  of  In  re  Evans.^^  It  follows  therefore 
that  the  orphans"  court  is  without  jurisdiction  to  revoke  letters 
granted  by  the  surrogate,  in  a  case  brought  before  it  otherwise 
than  by  appeal,  notwithstanding  the  surrogate  may  have  been 
induced  to  grant  such  letters  by  fraudulent  representations.-''* 

APPOINTMENT     OF     SUCCESSOR     TO     REMOVED 
EXECUTOR,  ETC. 

Jurisdiction  of  Orphans'  Court. 

In  case  any  executor,  administrator,  guardian  or  trustee 
shall  be  removed  or  discharged  by  the  prerogative  court  or 
orphans'  court  for  any  cause  authorized  by  the  Orphans'  Court 
Act,  the  court  shall  appoint  some  suitable  and  proper  person 
or  persons  in  the  place  and  stead  of  such  executor,  adminis- 
trator, guardian  or  trustee  so  removed  or  discharged,  and 
the   person   or  persons   so   appointed   shall,   before   letters  of 

■'^"Evans'  Case.  29  N.  J.  Eq.,  571.  5125  N.  J.  Eq.,  508. 
Straub's  Case,  49  N.  J.  Eq.,  264.  5-i6  N.  J.  L.,  526. 
Affirmed  50  N.  J.  Eq.,  795-     Mur-  5339  N.  J.  Eq.,  571-575. 
ray  v.  Lynch,  64  N.  J.  Eq.,  290-  ^^\n    re    John    Phillips.    Essex 
300.     Affirmed  65  N.  J.  Eq.,  399.  Orphans'  Court,  April.  1914,  Mar- 
Queen's  Estate,  82  N.  J.  Eq..  583.  tin,  J. 


Removal  of  Execctors,  Etc.  6ii 

administration  or  of  guardianship  shall  be  issued  or  the  ap- 
pointment as  trustee  take  effect,  give  bond  to  the  ordinary  in 
such  amount  and  with  such  sureties  as  the  court  shall  approve, 
for  the  faithful  execution  of  the  trust  reposed;  which  bonds 
in  case  of  letters  of  administration  cum  testamento  annexo  of 
dc  bonis  iiou  or  of  guardianship  shall  be  in  the  same  form  and 
condition,  as  near  as  may  be.  as  is  required  on  the  grant  of 
such  letters  in  other  cases;  provided,  nevertheless,  that  where 
one  or  more  of  the  executors,  administrators,  guardians  or 
trustees  shall  be  removed  or  discharged,  the  otifice  shall  sur- 
vive and  devolve  upon  the  others,  who  shall  proceed  with  the 
performance  of  the  duties  thereof,  and  shall  be  entitled  to  the 
property  and  assets,  and  to  sue  for  and  recover  the  same,  in 
the  same  manner  as  if  such  remaining  executor  or  executors, 
administrator  or  administrators,  guardian  or  guardians,  trustee 
or  trustees  had  been  solely  appointed  to  such  office.^^ 

Powers  of  Successor  to  Removed  Executor,  Etc. 

The  person  or  persons  appointed  to  succeed  a  removed  execu- 
tor, administrator,  guardian  or  trustee  shall  have  power  and 
authority  to  demand,  receive  and  recover  the  property  and 
assets  of  the  estate,  and  to  maintain  all  proper  actions  at  law  or 
in  equity  for  the  recovery  of  the  same,  and  shall  be  authorized 
to  do  all  acts  necessary  for  the  administration  and  settlement 
of  such  estate,  and  the  execution  of  the  powers  and  perform- 
ance of  the  trusts  contained  in  the  will  of  the  testator,  in  the 
same  manner  and  to  the  same  effect  as  if  such  person  or 
persons  had  been  appointed  administrator  or  guardian  in  the 
first  instance  or  named  as  executor  or  trustee  in  such  will,  and 
shall  be  liable  in  the  same  manner  for  any  neglect  or  failure  to 
perform  the  duties  of  such  appointment  and  subject  in  all 
respects  to  the  orders  of  the  court."*^ 

Where  executors  enter  into  a  contract  for  the  benefit  of  the 
estate  and  are  removed  before  the  contract  is  actuallv  carried 

'^^Orphans'  Court   Act.  sec.   15 r.         ■^''Orphans'  Court  Act.  sec.  151. 
3  Comp.  Stat..  3860.  3  Comp.  Stat.,  3869. 


6i2  Probate  Law  and  Practice. 

into   effect,   the  administrator  appointed  in  the  place  of  the 
removed  executors  may  enforce  the  contract. ^^ 

May  Maintain  Action  Against  Removed  Executor. 

The  administrator,  guardian  or  trustee  appointed  in  the 
place  of  any  executor,  administrator,  guardian  or  trustee, 
or  his  co-executor,  co-administrator,  or  joint  guardian  or 
trustee,  who  has  been  removed  by  the  court,  may  have  actions 
for  such  goods  and  chattels  as  shall  have  come  to  the  posses- 
sion of  any  executor,  administrator,  guardian  or  trustee  so 
discharged  or  removed,  for  any  breach  of  trust,  waste,  em- 
bezzlement or  misapplication  of  the  same,  and  may  proceed  by 
actions  at  law  or  in  equity  for  the  recovery  of  the  assets  of 
the  estate,  either  against  such  executor,  administrator,  guard- 
ian or  trustee,  or  against  any  other  person  into  whose  ])osses- 
sion  such  assets  shall  have  come  or  in  whose  hands  they  may 
be.-'^ 

Power  of  Successor  to  Removed  Trustee  to  Exercise  Power 
of  Sale. 

Any  trustee  appointed  or  substituted  by  the  orphans'  court 
of  any  county  of  this  state,  or  by  the  court  of  chancery,  in 
the  place  of  any  trustee  appointed  by  a  will  or  other  instru- 
ment creating  or  continuing  a  trust,  shall  have  the  same  power 
to  sell  and  convey  lands  and  other  property  as  was  given  to 
and  vested  in  the  original  trustee  or  trustees  named  in  or 
appointed  by  such  will  or  instrument,  even  in  cases  where  such 
power  may  be  directed  to  be  exercised  at  the  discretion  of  such 
original  trustee  or  trustees,  unless  such  power  of  sale  shall  b\ 
such  will  or  instrument  lie  expresslv  i')rohibited  to  anv  substi- 
tuted trustee. -"'^ 

DISCHARGE  OF  EXECUTORS,  ETC. 

Jurisdiction. 

A\'hen  an}-  executor,  administrator,  guardian  or  trustee,  who 
has  entered  on  the  duties  of  his  office,  shall  desire  to  be  dis- 

5'Smith  V.  Axtell.   i  N.  J.  Eq..  ^sOrphans'  Court  Act,  sec.  153. 

494-  3  Comp.  Stat.,  3870. 

5^4  Comp.  Stat.,  p.  5668,  sec.  5. 


DlSCHARGK   OF    EXKCUTORS.    Etc.  613 

charged  from  the  further  performance  of  the  same,  it  shall  be 
lawful  for  him  to  apply  for  such  discharge  by  petition  to  the 
prerogative  court,  when  the  appointment  was  made  or  the 
letters  testamentary,  of  administration  or  of  guardianship,  have 
been  issued  by  the  ordinary,  or  to  the  orphans'  court,  when 
the  appointment  was  made  by  that  court  or  letters  have  been 
issued  by  the  surrogate ;  and  upon  such  application  the  court 
shall  examme  into  the  matter,  and  if  it  shall  appear  that  there 
is  sufficient  reason  for  such  discharge,  it  ma}',  by  an  order 
made  for  that  pui-pose,  grant  the  same  :  and  such  executor, 
administrator,  guardian  or  trustee  so  discharged  shall  there- 
upon l)e  relieved  and  discharged  from  all  further  duties  ot  his 
office,  except  accounting  for  and  paying  over  the  moneys  or 
assets  received  by  him  by  virtue  of  his  office :  provided,  that  if 
it  shall  appear  to  the  court  that  such  discharge  will  be  preju- 
dicial to  the  estate  or  to  those  interested  therein,  or  if  the  court, 
for  any  other  reason,  shall  be  of  opinion  that  the  same  ought 
not  to  be  granted,  such  discharge  shall  not  be  made;  and  if 
such  executor,  administrator,  guardian  or  trustee  shall  be  dis- 
charged, the  court  shall  make  such  order  in  relation  to  the 
commissions  as  shall  be  just  and  e(|uitable.''" 

Discharge  of  Executor  or  Trustee  from  Particular  Trust. 

When  any  executor  or  trustee  shall  desire  to  be  discharged 
from  the  performance  of  any  particular  trust  imposed  upon 
him  by  the  last  will  and  testament  under  which  he  is  appointed, 
it  shall  be  lawful  for  him  to  apply  for  such  discharge  by  peti- 
tion to  the  prerogative  court,  when  the  letters  testamentarv 
shall  have  been  issued  by  the  ordinary,  or  to  the  orphans'  court 
when  letters  have  been  issued  by  the  surrogate  ;  and  upon  such 
application,  it  shall  be  lawful  for  the  court,  liy  an  order  made 
for  that  purpose,  to  grant  such  discharge ;  and  such  executor 
or  trustee  so  discharged  shall  thereupon  be  relieved  and  dis- 
charged from  all  further  lial)ilities  and  duties  of  his  office  with 
respect  to  the  said  particular  trust,  except  the  accounting  for 
and  paying  over  the  moneys  or  assets  received  by  him  for  such 
trust  to  liis  successor  in  cjffice."^ 

6"Orphans'  Court  Act,  sec.  146.  «'Orphans'  Court  Act,  sec.   147. 

.3  Comp.  Stat.,  3868.  3  Coinp.  Stat.,  3868. 


6i4  Probate;  Law  and  Practice. 

Two  or  More  Executors  May  Join  in  Application. 

When  there  is  more  than  one  such  executor  or  trustee  ap- 
pointed by  any  will,  they  may,  all  or  any  one  or  more  of  them, 
join  in  the  same  .ipplication  to  be  discharged.'"- 

Notice  of  Application. 

An  executor  or  administrator  seeking  to  be  discharged  from 
the  further  duties  of  his  office  shall  give  to  all  the  parties 
interested  in  the  estate  of  which  he  is  such  executor  or  ad- 
ministrator, or  to  such  of  them  as  the  court  shall  direct,  at 
least  thirty  days'  notice,  in  writing,  of  his  intended  application 
to  the  orphans'  court  for  such  discharge,  unless  the  orphans' 
court,  for  good  cause  appearing,  shall  otherwise  order ;  and 
where  any  of  the  said  parties  shall  reside  outside  of  this  state, 
such  notice  may  be  given  by  mailing  the  same  to  their  post 
office  addresses.  Guardians  seeking  to  be  discharged  from  their 
trust  shall  give  like  notice  in  like  manner  to  their  wards,  to  the 
nearest  of  kin  of  their  said  wards,  to  any  person  standing  in  loco 
parentis  to  their  said  wards  and  also  to  the  persons  with  whom 
their  said  wards  may  reside,  or  to  such  of  them  as  the  court 
shall  direct.  Trustees  seeking  to  be  discharged  from  their  trust 
shall  give  like  notice  in  like  manner  to  their  cestui  que  trust 
or  ccstuis  que  trustent.  If  a  cestui  que  trust  be  a  minor  or 
non  compos  mentis,  notice  shall  be  given  to  the  guardian,  if 
any,  and  if  none,  to  the  nearest  of  kin,  persons  standing  in  loco 
parentis  to  said  minor,  if  any,  and  also  to  the  persons  with 
whom  said  minor  shall  reside,  or  to  such  of  them  as  the  court 
shall  direct.*'^ 

A  decree  of  the  orphans'  court  discharging  an  executor  on 
his  own  application,  made  without  notice  or  any  adjudication 
that  no  notice  was  necessary,  will  be  reversed.®* 

Who  Entitled  to  Notice. 

Creditors  are  not  sufficiently  interested  to  require  notice. 
Their  rights  will  not  be  attected  by  the  discharge,  as  the  lia- 

620rphans'  Court  Act.  sec.   148.  "'•^'ail    v.    Male.    37    N.   J.    Rq., 

3  Comp.  Stat.,  3868.  521. 

^^Orphans'  Court  Rule  29. 


Discharge  of  Executors,  Etc.  615 

bility  of  the  discharged  executors  to  account  will  not  be  thereby 
affected."^^ 

When  Discharge  May  Be  Granted. 

A  discharge  is  not  invalid  because  granted  before  an  account 
rendered,  since  such  discharge  does  not  relieve  from  that 
duty.^*^ 

^^Union  National  Bank  v.  Poul-  '^''Union  National  Bank  v.  Poiil- 

son,  31  N.  J.  Eq..  239.  son,  31  N.  T.  Eq.,  239. 


CHAPTER  XXXI. 

ACCOUNTING. 

DUTY    TO    ACCOUNT. 

Duty  of  Executors,  Administrators,  Guardians  and  Trus- 
tees. 

Every  executor,  administrator,  guardian  and  trustee  under  ' 
a  will  shall  state  and  settle  his  account  in  the  surrogate's  office 
within  one  year  after  his  appointment,  or  at  the  first  regular^ 
term  of  the  orphans'  court  after  the  expiration  of  said  year, 
unless  the  court,   for  good  cause  shown,  allow   further  time 
therefor.^ 

It  is  the  duty  of  an  executor  not  only  to  exhibit  his  account 
for  allowance,  but  to  use  diligence  in  bringing  it  to  a  final 
settlement.-  It  has,  however,  been  held  that  this  provision  is 
not  mandatory,  but  directory,  and  that  non-compliance  there- 
with, unattended  by  fraud,  gross  neglect  or  indift'erence  to  duty, 
is  not  a  cause  for  the  removal  from  office  of  an  executor.^ 

Intermediate  Accounts  of  Guardians  and  Trustees. 

Every  guardian  or  trustee  shall  exhibit  to  the  orphans' 
court  once  in  three  years,  and  oftener  if  required,  an  account 
of  all  moneys,  goods  and  chattels  he  shall  receive,  and  of  the 
rents,  issu"es  and  profits  of  any  real  estate  in  his  possession  be- 
longing to  his  ward,  or  held  in  trust.* 

After  the  Ward  Has  Attained  Full  Age. 

After  the  ward  has  attained  full  age  and  the  guardian  has 
ceased  to  have  possession  of  or  control  over  any  property  of 
the   ward,    subsequent   dealings   between   the   parties   are   not 

iQrphans'   Court   Act,   sec.   114.  ^Heath    v.    Maddock,    81    N.    J. 

3  Comp.  Stat.,  3852.  Eq.,  469. 

2Egerton   v.   Egerton,    17   N.  J.  ^Orphans'   Court  Act,    sec.    115. 

Eq.,  419-  3  Comp.  Stat.,  38S3- 

616 


Accounting.  617 

within  the  jurisdiction  of  the  orphans'  court  f  but  where  the 
guardian,  after  the  ward  attains  full  age.  and  before  the  ac- 
counts are  settled,  continues  to  manage  the  ward's  property 
at  the  request  of  the  ward,  it  is  in  effect  a  continuance  of  the 
guardianship,  and  the  guardian  must  settle  his  entire  account, 
embracing  transactions  after  as  well  as  during  the  minority 
of  the  ward,  in  a  tribunal  ha\  ing  jurisdiction  of  the  guardian- 
ship.'^ 

Where  Executor  is  Tenant  for  Life. 

The  fact  that  an  executor  is  entitled  to  the  estate  of  his  tes- 
tator for  life  does  not  excuse  his  failure  to  ascertain  what  the 
estate  amounts  to,  through  an  accounting  that  will  fix  the 
charges  against  and  allowances  to  him,  and  thus  settle  between 
all  parties  in  interest  the  exact  amount  of  the  corpus  for  which 
the  life  tenant  is  to  be  responsible.' 

By  Guardian  of  Pensioner. 

A  judge  of  the  orphans'  court,  on  the  presentation  to  him  of 
a  verified  statement  of  an  account  with  his  ward  by  a  guardian 
of  a  person  who  is  a  pensioner  of  the  United  States,  is  author- 
ized and  empowered  to  make  certificate  to  the  commissioner  of 
pensions,  that  the  trust  is  being  properly  executed  and  that  the 
guardian  is  in  good  standing  with  the  court,  in  all  cases  where, 
in  the  discretion  of  the  judge,  such  conditions  are  found  to 
exist ;  provided,  however,  this  act  shall  not  apply  when  the 
guardian  has  other  funds  of  his  ward  in  his  hands  than  pen- 
sion moneys.^ 

Where  There  Are  Administrators  in  Different  States. 


Administration  of  the  estate  must  be  in  the  jurisdiction  in 
which  possession  of  it  was  taken  and  held  under  lawful  author- 
ity ;  and  when  there  are  two  administrators  in  different  coun- 
tries, each  portion  of  the  estate  must  be  administered  and  ac- 

sPyatt  V.   Pyatt,  46   N.   J.   Eq.,  ''Maxwell  v.  McCreery,  57  N.  J. 

285.  Eq.,  287.    Hunt  V.  Smith,  58  N.  J. 

ePyatt  V.    Pyatt,  46   N.  J.   Eq.,       Eq.,  25. 
285.  ^P.    L.    1903.    P-   363-     3   Comp. 

Stat.,  p.  3859.  sec.  127-b. 


6i8  Probate  Law  and  Practice. 

counted    for   in    tlie   country   where   possession   of   it  was   so 
taken." 

Account  by  Representative  of  Deceased  Executor,  &c. 

Where  an  executor,  administrator,  guardian  or  trustee  hath 
died  or  shall  die  without  having  fully  settled  up  and  ob- 
tained an  allowance  of  his  account  of  the  administration  of  the 
estate  that  has  come  into  his  hands,  it  shall  be  lawful  for  the 
executor,  or  administrator  of  such  deceased  executor,  admin- 
istrator, guardian  or  trustee  to  exhibit  to  the  surrogate  of  the 
county  wherein  letters  were  issued  or  appointment  made,  in 
order  to  have  the  same  duly  settled  and  allowed,  an  account 
of  the  receipts  and  disbursements  of  said  executor,  adminis- 
trator, guardian  or  trustee  in  his  lifetime,  of  the  assets  of 
the  estate  which  came  to  his  hands  or  of  so  much  thereof  as 
may  remain  unsettled  at  the  time  of  the  death  of  such  deceased 
executor,  administrator,  guardian  or  trustee ;  and  the  orphans' 
court  is  hereby  authorized  and  required  to  take  cognizance  of 
the  said  accounts  and  to  proceed  and  act  therein  as  is  required 
in  regard  to  accounts  in  other  cases. ^° 

Prior  to  the  enactment  of  the  act  of  1901,"  it  was  held  that 
the  representative  of  a  former  executor  or  administrator  could 
not  be  called  on  Ijy  the  administrator  dc  bonis  non\  of  the  first 
intestate  for  the  proceeds  of  property  converted  into  money  in 
the  hands  of  the  administrator  of  the  first  intestate  at  such 
administrator's  death,  but  only  for  assets  existing  in  specie  as 
at  the  death  of  the  first  intestate  ;^-  but  such  representative 
was  held  responsible  to  the  legatees,  next  of  kin  and  creditors. ^^ 

"Banta  v.  Moore.   15  N.  J.  Eq.,  wood,  20  N.  J.  Eq.,  239.     Carrick 

97.     Normand  v.  Grognard,  17  N.  v.    Carrick,    22,    N.    J.    Eq.,    364. 

J.    Eq.,    425 ;     see    also    "Foreign  Bradway  v.  Holmes,  50  N.  J.  Eq., 

Wills."  p.  211.  supra.  311.     Thiefes  v.  Mason,  55  N.  J. 

^"Orphans'  Court  Act,  sec.  118.  Eq.,   456.      Hartson    v.    Elden,   58 

3  Comp.  Stat.,  3854.  N.   J.   Eq.,  478.     Parker  v.   Stev- 

i^P.   L.   1901,   p.   301.     2   Comp.  ens,  61   N.  J.  Eq.,   163. 

Stat.,  2259,  sees.  2a,  b,  c.  d,  e.    See  isfhiefes    v.    Mason,    55    N.    J. 

pp.  275,  et  seq.,  supra.  Eq..  456.    Hartson  v.  Elden,  58  N. 

i^McDonald  v.  O'Connell,  39  N.  J.  Eq.,  478.     Parker  v.  Stevens.  61 

J.  L.,  317-320.    Brownlee  v.  Lock-  X.  J.  Eq.,  163. 


Accounting.  619 

By  the  statute  of  190T.'*  the  office  of  administrator  dc  bouis 
lion  is  abolished  and  that  of  substituted  administrator  put  in  its 
place.  The  act  confers  upon  a  substituted  administrator  the 
right  to  the  possession  of  all  the  unadministered  assets  of  his 
predecessor,  and  authorizes  him  to  take  proceedings,  in  law  or 
in  equity,  for  the  recovery  of  the  same. 

Accounting  by  Removed  or  Discharged  Executor,  &c. 

The  statute  provides  that  any  executor,  administrator, 
guardian  or  trustee  who  has  been  removed  (jr  discharged  bv 
the  orphans"  court  shall,  at  the  next  term  of  court,  state  and 
settle  his  account. ^^ 

WHEN  ACCOUNTING  UNNECESSARY. 

By  Administrator. 

An  administrator  who  is  entitled  to  all  the  personal  estate 
of  the  intestate,  after  payment  of  debts,  is  under  no  duty  to 
settle  his  accounts  in  the  surrogate's  office,  unless  required  to 
do  so  by  some  person  interested  in  the*estate.^'~' 

By  Guardian  or  Trustee. 

A  guardian  or  trustee  who  files  with  the  surrogate  of  the. 
proper  county  a  release  or  discharge  from  his  ward  or  cestui 
que  trust,  of  full  age,  duly  executed  and  acknowledged  as  deeds 
for  land  are  by  law  required  to  be  executed  and  acknowledged, 
is  under  no  duty  to  settle  his  account  in  the  orphans'  court. ^' 

By  Executor  or  Administrator  c.  t.  a. 

It  shall  not  be  necessary  for  any  executor  or  administrator, 
under  any  last  will  and  testament,  who  is  entitled  to  all  the 
personal  estate  of  the  testator  after  payment  of  debts  and 
specific  bequests,  legacies  or  trusts,  to  file  an  inventory  or  settle 
his  accounts  in  the  surrogate's  office,  unless  required  so  to  do 
as  hereinafter  set  forth  :    proz'ided,  such  executor  or  adminis- 

^*P.  L.    1901.  p.   303.     2  Coinp.      "Duties    of    Remoxcd    Executor, 
Stat.,  sec.  2a,  b,  c.  d,  e.     See  pp.       etc.,"  p.  608,  supra. 
275  et  seq.,  supra.  ^''Orphans'  Court  Act.  sec.  no. 

^•Orphans'  Court  Act.  sec.   152.       3  Comp.  Stat..  3853. 
3     Comp.     Stat.,     3870.     and     sec  '^Orphans'  Court   .\ct,  sec.   119. 

3  Comp.  Stat..  3855. 


620  Probate  Law  and  Practice. 

trator  shall,  within  one  year  after  probate  of  said  will,  or  such 
further  time  as  the  orphans'  court  of  the  county  in  which  said 
will  was  proved  shall  for  good  cause  shown,  allow,  record  in  the 
surrogate's  office  of  the  county  in  which  his  letters  testamentary 
or  of  administration  with  the  will  annexed  shall  have  been 
granted,  full  receipts,  releases  and  discharges  from  the  persons 
entitled  to  such  specific  bequests,  legacies  or  trusts ;  and  pro- 
vided  further,  that  any  person  interested  in  the  estate  may  ap- 
ply to  the  orphans'  court  of  the  county  wherein  said  will  may 
have  been  or  may  be  proved,  and  upon  such  application,  such 
court,  on  notice  given  to  said  executor  or  administrator  in  the 
manner  directed  by  the  court,  and  on  consideration  of  the  cir- 
cumstances of  the  case,  may  make  order  requiring  said  exec- 
utor or  administrator  to  file  an  inventory  and  to  settle  his  ac- 
counts, and  thereupon  said  executor  or  administrator  shall 
proceed  and  file  an  inventory  and  settle  his  accounts  in  the 
same  manner  as  other  executors  or  administrators  are  or  may 
be  required  by  law  to  do.'^ 

JURISDICTION  OF  ORPHANS'  COURT. 
In  General. 

.  It  is  established  that  the  orphans'  court  is  invested  by 
statute  with  full  jurisdiction  over  the  accounts  of  executors, 
.  administrators,  guardians  and  trustees,  as  well  as  with  all  inci- 
dental powers  necessary  to  elYectuate  this  jurisdiction.^"  So 
the  orphans'  court  has  jurisdiction  to  settle  what  are  assets  as 
between  the  administrator  and  those  interested  in  the  estate,-" 
and  may,  upon  an  accounting,  ascertain  the  condition  of  the 
estate  in  the  hands  of  executors,  as  fully  as  can  the  Court  of 
Chancery.-^  But  the  jurisdiction  of  the  orphans'  court  to  pass 
upon  the  right  of  an  executor  to  turn  over  or  appropriate  se- 
curities for  the  payment  of  a  legacy,  when  dependent  upon  the 
construction  of  a  will,  must  be  settled  in  a  proceeding  instituted 
for  that  purpose,  on  actual  notice  to  all  parties  interested ;  and 

i^Orphans'  Court  Act,  sec.  120.  Orphans'  Court  Act,  sec.  2,  p. 
3  Comp.  Stat.,  3855.  41,  supra. 

laPyatt  v.   Pyatt,  46  N.  J.  Eq.,  sofiudd  v.  Hiler,  27  N.  J.  L.,  43- 

285.     Hill   V.    Hill,   79   N.   J.   521.  2iPyatt  v.   Pvatt,  46  N.  J.  Eq., 

285. 


Accounting.  621 

a  decree  settling"  the  balance  due  on  the  final  account  of  the 
executor  does  not  operate  as  a  judicial  construction  of  the  will, 
so  as  to  preclude  the  executor  from  raising  the  cjuestion  of 
construction  in  the  Court  of  Chancery. '-'- 

On  Guardian's  Final  Accounting. 

The  accounting  to  whicli  a  guardian  may  l)c  subject  by  pro- 
ceedings before  the  orphans'  court  is  not  only  a  statement  of 
his  receipts  and  disbursements,  and  of  the  amount  of  the  trust 
fund  still  remaining  in  his  hands,  but  it  is,  in  addition  to  such 
account  stated,  a  rendering  and  giving  up  to  the  party  entitled  to 
the  moneys  and  property  in  respect  to  which  the  accounting 
party  is  liable:  the  payment  is  a  part  of  the  accounting.  If 
the  powers  of  the  ori)hans'  court  should  l)e  restricted  to  re- 
quiring the  guardian  to  render  an  account  of  his  doings,  which 
may,  in  the  limited  sense  be  held  to  be  an  accounting,  or  if  it 
should  be  held  that  the  orphans'  court  is  invested  with  power 
to  examine  the  account  rendered,  allow  and  disallow  items,  and 
finally  adjust  and  settle  the  same  and  strike  a  balance,  without 
power  to  decree  the  payment  of  such  balance,  the  remedy  will 
come  far  short  of  that  atiforded  by  the  Court  of  Chancery,  and 
the  legislature  will  have  failed  to  provide  the  substitute  they 
designed :  and  parties  pursuing  a  guardian  would  be  com- 
pelled to  resort  to  another  court  by  an  independent  action  to 
obtain  the  relief  which  before  would  have  been  had  in  one 
action.  It  follows,  therefore,  that  the  orphans'  court  has  full 
power  and  authority  to  order  and  enforce  the  payment  to  a 
ward  of  the  balance  found  due  by  the  accounting.-^ 

Tt  has  already  been  seen  that  the  orphans'  court  has  as  full 
jurisfliction  over  the  accounts  of  guardians  as  the  Court  of 
Chancery  has.  It  is  settled  that  where,  in  a  proceeding  in  the 
Court  of  Chancery,  a  guardian,  after  his  ward  attains  full  age, 
and  before  the  accounts  of  his  receijjts  and  payments  during  the 
minority  are  settled,  continues  to  manage  the  property  at  the 
request  of  the  ward,  it  is  in  cfifect  a  continuance  of  the  guardi- 
anship as  to  the  property,  and  he  nnist  account  on  the  same 
l)rinciple  as  if  they  were  transactions  during  the  minority.     Ac- 

22Macy  V.  Mercantile  Trust  Co.,  aspyatt  v.   Pyatt.  46  N.  J.  Eq.. 

68  N.  J.  Eq..  235.  285-288. 


t)22  Probate  Law  and  Practice. 

cording  to  this  doctrine,  the  accountabiUty  for  his  ward's  estate 
remains  the  same  after  the  ward's  majority  as  before  until  the 
guardian  has  transferred  the  estate  to  the  ward,  or  until  the 
parties  themselves  have  agreed  to  place  his  responsibility  on  a 
different  footing.  The  jurisdiction  of  the  orphans*  court  em- 
braces this  entire  responsibility.  It  would  be  a  narrow,  not  a 
liberal  construction  of  the  statutory  terms,  which  authorize 
that  court  to  compel  guardians  "to  account  for  the  estates  in 
their  hands,"  to  say  that  it  can  compel  such  an  account  only  up 
to  the  time  when  the  ward  becomes  of  age,  and  that  guardians 
"must  account  for  the  estate  in  their  hands,"  so  far  as  their 
subsequent  dealings  with  such  estates  are  concerned,  in  some 
other  tribunal.-'* 

PROCEEDINGS    TO    COMPEL    ACCOUNTING. 
Person  in  Interest  May  Cite  Executor,  &c.,  to  Account. 

In  case  of  the  failure  of  any  executor,  administrator, 
guardian  or  trustee  to  settle  his  accounts  within  the  time  lim- 
ited by  law,  or  allowed  by  the  court,-^  or  in  case  any  guardian 
or  trustee  shall  neglect  to  present  intermediate  accounts  as 
aforesaid,-*^  any  person  interested  in  the  estate,  the  sureties  on 
the  bonds  of  such  executor,  administrator,  guardian  or  trustee, 
or  any  other  person  as  the  next  friend  of  any  infant  interested, 
may  cite  such  executor,  administrator,  guardian  or  trustee  to 
make  such  settlement  at  the  ensuing  term  of  the  court.-" 

Proceedings  Where  Executor,  &c..  Neglects  to  Account  for 
Two  Years. 

If  any  executor  or  administrator  shall  neglect  to  render  an 
account  of  the  estate  of  the  deceased  for  the  space  of  two  years 
after  his  appointment,  or  in  case  any  guardian  or  trustee  shall 
neglect  to  render  intermediate  accounts  as  aforesaid,  the  surro- 
gate shall  report  such  neglect  to  the  orphans'  court,  and  if  the 
said  court  so  direct,  it  shall  be  the  duty  of  the  surrogate  to 

2*Pyatt  V.  Pyatt,  46  N.  J.  Eq.,  -^See  Orphans'  Court  Act,  sec. 

285-290.  115,  p.  616,  supra. 

-^See  Orphans'  Court  Act,  sec.  ^TQrphans'  Court  Act,  sec.  116, 

114.  p.  616,  supra.  as  amended  by  P.  L.  1006.  p.  573. 

3  Comp.  Stat.,  p.   T,S^3.  sec.   116. 


Accounting.  623 

issue  a  citation  to  such  executor,  administrator,  guardian  or 
trustee,  and  to  the  sureties  on  the  bonds  of  sucli  executor, 
administrator,  guardian  or  trustee,  to  render  his  account,  un- 
less the  court,  for  good  cause  shown,  allow  further  time  there- 
for.-* 

The  surrogate  shall  not  be  required,  except  upon  the  written 
request  of  some  person  interested  in  the  estate,  to  report  to 
the  orphans'  court  the  failure  of  any  executor,  administrator, 
guardian  or  trustee,  to  tile  an  inventory  or  to  make  an  account- 
ing of  the  estate  which  has  come  to  his  hands  within  the  time 
and  in  the  manner  directed  by  the  act  to  which  this  is  a  supple- 
ment.-^ 

Nature  of  Proceeding. 

A  citation  to  account  is  not  a  proceeding  within  the  pro- 
visions of  the  act  conferring  jurisdiction  upon  the  orphans' 
court  in  suits  for  the  recovery  of  legacies,  but  is  a  simple  claim 
for  an  accounting  from  an  executor  by  a  legatee  who  is  not 
shown  to  have  receipted  or  released  his  legacy.^^"  So  at  the 
coming  in  of  a  citation  to  account,  an  executrix  cannot  evade 
the  duty  of  accounting  for  her  testator's  estate  by  setting  up 
payments  by  w^ay  of  bills  for  medical  attendance  upon  the  lega- 
tee, and  for  her  funeral  and  burial  expenses  paid  by  said 
executrix,  and  for  care,  nursing,  attendance,  board  and  lodging 
furnished  to  the  legatee.  The  proceeding  before  the  orphans' 
court  being,  as  above  said,  a  simple  claim  for  an  accounting 
the  court  is  not  authorized  to  adjust  or  decree  a  legacy  upon 
such  application  as  it  might  in  the  case  of  suits  for  the  re- 
covery of  legacies. ^^ 

When  Outstanding  Claim  No  Defense  to  Citation  to  Ac- 
count. 

In  any  citation  to  account,  it  is  no  defense  that  there  are 
disputed  claims  outstanding  or  in  suit  against  the  estate,  if  the 
executor   or   administrator  has  neglected    for   six   months  to 


2«Orphans'  Court   Act,  sec.   117,  -"bi  re  HastcnflenlR'ck.  72,  N.  J. 

as  amended  hy   P.  L.  1906,  p.  574.  Eq.,  t,2i7- 

3  Comp.   Stat.,  p.  3854,  sec.   117.  «i[n  re  HastendcnI.cck.  -^^  N.  I. 

-■•P.  L.  lorr.  p.  734.  F,f,..  33- 
41 


624  Probate  Law  and  Practice. 

obtain  an  order  to,  limit  creditors  and  to  proceed  thereon  ac- 
cording to  law,  unless  suit  brought  within  a  year  from  the  grant 
of  probate  or  administration  be  pending  on  such  claim. ^- 

WHO  MAY  CITE  EXECUTOR,  ETC.,  TO  ACCOUNT. 

Creditors. 

The  statute,  as  has  been  seen,  provides  that  any  person  inter- 
ested in  the  estate  may  require  the  executor,  administrator, 
guardian  or  trustee  to  account ;  so  if  a  creditor  swear  positively 
to  a  debt  due  him  from  the  decedent,  he  will  be  entitled  to  de- 
mand an  accounting.^^ 

Legatees  and  Devisees. 

A  legatee  or  devisee  is  a  person  interested  in  the  estate,  and, 
as  such,  entitled  to  require  the  executor  to  account.^*  So 
where  an  executor  failed  to  render  an  account  for  more  than 
sixteen  years,  legatees  who  had  delayed  during  that  time  to 
bring  suit  will  not  be  held  to  have  acquiesced  in  such  negli- 
gence, so  as  to  be  barred  of  their  right  to  an  accounting  ;^^  but 
the  will  of  a  married  woman,  who,  under  our  statute,  has  power 
to  dispose  of  her  personal  property  absolutely,  even  as  against 
her  husband,  which  devises  and  bequeaths  all  her  estate,  real 
and  personal,  to  another,  subject  to  the  legal  rights  of  her  hus- 
band, if  he  survives  her,  and  which  appoints  one  other  than  her 
husband  as  executor,  does  not  give  to  the  husband,  in  the  case 
of  his  surviving,  any  right  to  the  personalty  so  bequeathed,  and 
he  has  therefore  no  standing  to  call  upon  the  executor  to  file 
an  inventory  or  account.^" 

Residuary  Legatees. 

A  residuary  legatee  is  entitled  to  call  an  executor  to  ac- 
count;^"   and  where,  by  the  terms  of  a  will,  real  estate  is  or- 

3-Orphans'   Court   Act,   sec.   76.  J.  Eq..  2^7.     Bechtold  v.  Read,  49 

3   Comp.    Stat.   3837.     For   a   full  N.  J.  Eq.,  in.     Reversed  54  N.  J. 

discussion    of    this    subject,     see  Eq.,  407. 

"When  Outstanding  Claim  is  No  ssyoung    v.     Schelly.     21     Atl. 

Defence  to  a  Suit  for  a  Legacy,"'  Rep.,  1049. 

p.  735.  infra.  sepoiwell's  Case,  68  N.  J.   Eq., 

^^Gratacap    v.    Phyfe,    i    Barb.  728. 

Ch.,  484.    Keyser  v.  Kellv,  4  Redf.  S'Bird  v.  Hawkins,  58  N.  J.  Eq.. 

Sur.'  (N.  Y.)    157.  229. 

^^Hastendenbeck's    Case.    73    N. 


ACCOUNTIN'G.  625 

dered  sold,  and  tlie  residue,  after  the  payment  of  certain  money 
legacies,  which  cannot  be  paid  until  a  future  time,  is  be- 
queathed, the  residuary  legatees  are  entitled  to  demand  an  ac- 
count, and  to  have  the  real  estate  sold  and  the  proceeds  applied 
to  the  administration  of  the  estate  before  the  time  arrives  for 
the  payment  of  the  specific  legacies.^*  So  where  a  testator 
directs  his  real  estate  to  be  sold,  the  proceeds  to  be  held  in  trust 
for  his  father  during  his  life,  and  the  income  and  corpus  ap- 
plied to  his  father's  maintenance,  as  he  may  direct,  with  re- 
mainder to  testator's  heirs  after  his  father's  decease,  such  heirs 
are  entitled  to  an  account  for  the  value  of  the  use  and  occupa- 
tion of  such  real  estate  until  sold,  and  to  have  it  applied  to  the 
cost  of  the  support,  &c..  of  testator's  father.^''  Even  a  con- 
tingent interest  in  the  estate  is  sufficient  to  entitle  the  party 
having  such  interest  to  cite  an  executor  to  account.^" 

Sureties  of  Personal  Representatives. 

The  statute  provides  that  if  the  surety  on  any  bond  given  by 
an  executor,  administrator,  guardian  or  trustee  believes  that  the 
estate  is  being  mismanaged,  the  orphans'  court,  upon  application 
of  such  suret\",  and  upon  sufficient  reason  therefor,  may  order 
such  executor,  administrator,  guardian  or  trustee  to  render  an 
account  of  his  administration  to  such  surety. ^^ 

Substituted  Administrator. 

Section  118  of  the  Orphans'  Court  Act.''-  authorizes  the 
executor  or  administrator  of  a  deceased  executor,  adminis- 
trator, guardian  or  trustee  to  settle  the  accounts  of  his  decedent 
in  the  orjjlians'  court;  and  the  act  of  1901,'*"  as  has  been  seen, 
confers  u]jon  a  substituted  administrator  the  right  to  the  pos- 
session of  all  of  the  unadministered  assets  of  his  predecessor, 
and  authorizes  liim  to  take  proceedings,  in  law  or  in  equity,  for 
the  recovery  of  the  same.     It  would  seem,  therefore,  that  a 

"*\'anderpool    v.    Davenport,    3  •*'r)i  plians'   Court  Act.   sec.   143, 

N.  J.  Eq.,  120.  p.    Ti3^].   supra.     See  also  sec.   116. 

3''Brokaw   v.   Brokaw,   41   N.   J.  as  amended  by  P.  L.  1906,  p.  573. 

Hq.,  304.  3  Comp.  Stat.,  p.  ^^SJi.  sec.   116.  \). 

^'^Gratacap    v.     I'liyfe.     i     Barl).  622,  supra. 

Ch.,  4S4.  ■♦-Page  618,  supra. 

•*^Pages  275  it  seq,  snpr;i 


626  Probate  Law  and  Practice. 

substituted  administrator  may  cite  the  executor  or  adminis- 
trator of  his  predecessor  in  office  to  account  for  the  latter's  ad- 
ministration of  the  estate. 

Representative  of  Deceased  Ward. 

It  seems  that  the  representative  of  a  deceased  ward  may  cite 
the  personal  representative  of  the  deceased  guardian  to  ac- 
count.** 

Laches  of  Person  Entitled  No  Bar. 

An  executor,  administrator,  guardian  or  trustee  receiving 
property  of  an  estate  or  ward  becomes  a  trustee  until  a  proper 
accounting  is  had;  and  the  fact  that  the  ward  or  cestui  que 
trust  acquires  the  right  to  call  for  an  accounting  at  a  particular 
time  does  not  fix  such  time  as  a  period  from  which  either  the 
statute  of  limitations  or  equitable  principles  in  analogy  thereto 
apply. *^ 

WHO   MAY   BE  CITED   TO  ACCOUNT. 

In  General. 

As  has  been  seen,  the  statute  imposes  a  duty  upon  all  execu- 
tors, administrators,  guardians  and  trustees  to  settle  their  ac- 
count within  one  year  from  their  appointment.^"  If  they  fail  to 
perform  this  duty  so  imposed  upon  them,  they  may  be  cited  so 
to  do  ;*'^  and  it  has  been  held  that  where  the  duties  of  a  trustee 
have  been  imposed  upon  an  executor,  even  though  he  be  not 
expressly  named  as  trustee,  by  proving  the  will  he  accepts  that 
trust  and  may  be  cited  to  account  as  such  trustee.*® 

Executors  who  are  the  sole  residuary  legatees  named  in  the 
will  and  have  paid  all  debts  and  legacies,  and  administrator- 

^''Stevenson   v.    Markley,   73   N.  X.  J-  Eq  .  no.     Y.-ung  v.  Schelly. 

J.  Eq.,  731.  21  Atl.  Rep..  1040. 

*5Stevenson   v.    Markley.   72   N.  ^Orphans'   Court   Act.   sec.   114. 

J.  Eq..  686.    Affirmed  73  N.  J.  Eq..  P-  6:6,  supra. 

731.     Hedges  V.   Norris,  32  N.  J.  ^'Orphans'   Court   Act,  sec.   116. 

Eq.,    192.      Magee   v.    Bradley,   54  p.  622.  supra. 

N.  J.  Eq.,  326.     Lutjen  v.  Lutjen.  *^See    "What    Constitutes    Ap- 

63  N.  T.  Eq.,  3QT.     Reversed  64  N.  pointmcnt     of    Trustee."     p.    293. 

J.  Eq.,   -73.     King  v.  Berry,  3  N.  supra. 
J.    Eq..    44.      Jones   v.    Haines.   79 


Accounting.  627 

\\ho  are  ilie  sole  distributees,  are,  as  has  I)een  seen,  exempted 
hv  sections  119  and  120  of  the  Orphans'  Court  Act  from  any 
(huy  to  account,  unless  ordered  by  the  court,  on  consideration 
of  the  circumstances  of  the  case,  so  to  do.  and  so  cannot  be 
cited  to  account.*' 

Where  the  ordinary  has  ordered  moneys  paid  from  the  estate 
of  deceased  to  executors  to  enable  them  to  carry  on  a  litigation 
as  to  whether  the  will  should  be  admitted  to  probate,  such  exec- 
utors will  not  be  required  to  account,  on  the  probate  of  the  will, 
for  such  expenditures,  until  they  have  filed  their  regular  ac- 
cotmt  in  due  course."" 

Executor  Entitled  to  Estate  for  Life. 

The  fact  that  the  executor  is  entiled  to  the  estate  of  the  tes- 
tator for  life  does  not  exctise  his  failure  to  ascertain  wdiat  the 
estate  amounts  to,  through  an  accounting  that  will  fix  the 
charges  against  and  allowances  to  iiim,  and  thus  settle  between 
all  parties  in  interest  the  exact  amount  of  corpus  for  which 
the  life-tenant  is  to  be  responsible ;  and  if  he  fails  to  account  he 
may  be  cited  so  to  do.'^'^  So  an  executrix  of  a  will  which  gives 
her  a  life  estate  in  the  real  and  personal  property  of  the  testator 
and  authorizes  her  to  expend  so  much  of  the  principal  of  the^ 
personal  estate  as  may  be  necessary  for  her  comfortable  main- 
tenance and  support,  with  remainder  over,  may  be  cited  by  the 
residuary  legatees  to  accoimt,  at  least  so  far  as  the  corpus  of 
the  personalty  is  concerned. '- 

Executor,  &c.,  of  Insolvent  Estate. 

An  executor  or  adnn'nistrator  may  be  cited  to  account,  not- 
withstanding he  has  declared  the  estate  to  be  insolvent,  and  the 
citation  may  be  issued  and  made  returnable  before  the  expira- 
tion of  the  time  limited  for  creditors  to  exhibit  their  claims. 
The  proceeding  on  the  part  of  the  personal  re]n-esentative  to- 
have  the  estate  declared  insolvent  is  purely  ex  parte,  and  there: 
appears  to  be  no  reason  why  creditors  or  next  of  kin  should  not 

*^See  Orphans'  Court  Act,  sees.  "^'Maxwell   v.   McCreery,   57   N. 

119    and    120,    pp.    619    and  620,  J.  Kq..  287. 

supra.  '•-Hunt  v.   Smith.  58  N.  J.  Eq.. 

•"■'"Lewis's    Case,    32    N.    J.  Eq.,  25. 


628  Probati;  Law  and  Practice. 

call  him  to  account  in  the  meantime,  so  that  they  may  have  an 
opportunity  of  excepting"  to  his  statement  and  of  showing  that 
he  has  not  charged  himself  with  the  assets  that  have  come  to 
his  hands,  or  that  he  is  misapplying  the  same  and  should  be 
required  to  give  further  security.^'' 

Guardians. 

Where  a  guardian,  after  his  ward  attains  full  age  and  before 
his  accounts  are  settled,  continues  to  manage  the  property  at  the 
request  of  the  ward,  the  guardian  must  settle  the  entire  account, 
for  transactions  after  as  well  as  during  the  ward's  minority.^* 
But  where  an  infant  ward,  falsely  representing  himself  to  be  of 
age,  made  a  settlement  with  his  guardian,  taking  for  his  share 
certain  building  lots  at  a  valuation,  and  executed  a  discharge 
to  his  guardian,  no  advantage  being  taken  of  the  infant  in  such 
settlement,  and  the  guardian  being  induced  by  it  to  surrender 
a  certain  security  he  had  taken  for  his  own  protection  in  man- 
aging the  estate,  it  was  held  that  the  ward  could  not  afterward, 
^in  a  court  of  equity,  disregard  his  discharge,  and  call  upon  the 
estate  of  the  deceased  guardian  to  account.''^  Where  the  will 
gives  the  income  of  a  certain  fund  to  a  guardian  for  the  sup- 
port, maintenance  and  education  of  the  ward,  upon  fulfillment 
of  the  trust  no  account  can  be  demanded  of  the  guardian."'*'' 

Foreign  Executors  and  Administrators.  • 

Administration  of  an  estate  must  be  in  the  jurisdiction  in 
which  possession  of  it  was  taken  and  held  under  lawful  author- 
ity ;  and  when  there  are  two  executors  or  administrators  in 
different  countries,  each  portion  of  the  estate  must  be  adminis- 
tered and  accounted  for  in  the  country  where  possession  of  it 
was  so  taken. ^' 

53   Duncan  v.   Barnes,  20  N.  J,  N.  J.  Eq.,  9-14.     Dixon  v.  Bentley, 

L..  75-  50  N.  J.  Eq.,  87.    Affirmed  ib.,  486. 

5*Pyatt   V.    Pyatt,  46  N.  J.   Eq.,  STBanta  v.  Moore,  15  N.  T.  Eq.. 

285.  97.      Normand    v.    Grognard,    17 

55Haye.s  v.  Parker,  41  N.  J.  Eq.,  N.     J.     Eq.,     425.       Brownlee     v. 

630-  Lockvvood,  20  N.  J.  Eq.,  239. 

56Macknet  v.  Macknet,  27  N.  J.  ssMerselis  v.  Merselis,  7  N.  J. 

Eq.,  594.     Wood  V.  Chetwood,  33  Eq.,  557. 


Accounting.  629 

Where  Intermediate  Account  Has  Been  Filed. 

i^artial  accounts  of  executors  exhibited  and  allowed  by  the 
orphans'  court  will  not  prevent  a  person  interested  in  the  estate 
from  bringing  the  executors  into  court  for  a  final  settlement.^^ 

Co-Executors. 

Executors  are  not  liable  fur  each  other's  acts,  or  responsible 
for  the  money  which  comes  into  each  others'  hands,  unless  they 
can  be  implicated  in  the  misconduct  of  the  co-executor.  So 
executors  cannot  be  called  to  account  in  the  orphans'  court  for 
alleged  negligence  in  allowing  their  co-executor  to  receive  and 
hold  all  the  assets  of  the  estate,  and  to  waste  them  by  failure  to 
make  investments  thereof.^"  The  liability  of  co-representa- 
tives who  jointly  settle  their  final  account  is  fully  discussed 
elsewhere."" 

COSTS   ON   CITATION   TO   ACCOUNT. 

In  General. 

The  statute  provides  that  the  costs  of  a  citation  to  account 
and  of  the  proceedings  thereon  shall  be  paid  by  the  executor, 
administrator,  guardian  or  trustee,  out  of  his  own  private 
estate,  unless  the  court,  for  good  cause  shown,  shall  order 
otherwise.''^ 

An  executor,  administrator,  guardian  or  trustee  W'ho  fails 
to  account  as  required  by  law,  and  is  cited  to  do  so,  will  be 
required  to  pay  the  costs  of  the  citation  and  the  proceedings 
thereon,  unless  the  court  is  induced  by  substantial  cause  to 
order  otherwise''-,  but  ordinarily  the  estate  for  which  a  trustee 
accounts  is  charged  with  the  costs  of  accounting;  only  a  dere- 
lict trustee  is  made  to  pay  the  expenses  of  the  accounting 
out   of   his    own    funds.      Not   every    enforced   accounting   is 

5»Duncan  v.   Davison,  40  N.  J.  as    amended    P.    L.    1906,    p.  573. 

Eq.,  535.  and  see  "Liability  of  Co-  3    Comp    Stat.,   p.    3853.    sec.  116. 

Executors     for     Acts     of     F.acli  Page  622.  supra. 

Other,"  p.  416,  supra.  cjpyatt  v.   Pyatt,  44  N.  J.  Eq., 

®*^See  p.  649,  infra.  401.     Reversed  46  N.  J.  Kq.,  285. 

"Orphans'  Court  Act.  sec.  116, 


630  Probate  Law  and  Practice. 

made  under  the  penalty  of  costs  against  the  accountant  indi- 
vidually.''^ 

REMEDIES   WHEN    EXECUTOR,    ETC.,    FAILS    TO    OBEY 

CITATION. 

Removal. 

The  statute  provides  that  when  an  executor,  administrator, 
guardian  or  trustee  has  neglected  to  account  for  two  years, 
and  such  neglect  has  been  reported  to  the  orphans'  court,  and 
he  is  cited  to  account  and  disobeys  such  citation,  and  fails  to 
settle  his  account  according  to  such  citation,  or  within  the 
time  allowed  by  the  court,  it  is  the  duty  of  the  orphans'  court 
to  remove  stich  executor,  administrator,  guardian  or  trustee.^* 

The  course  to  be  pursued,  in  cases  where  an  executor  refuses 
to  account,  is  to  remove  him  and  appoint  another  in  his  stead, 
who  will  account  according  to  the  requirements  of  the  statute, 
upon  due  notice  and  advertisement ;  and,  when  removed,  to 
require  the  disqualified  executor  to  turn  over  to  the  new 
appointee  the  assets  of  the  estate.  When  the  account  is  prop- 
erly before  the  court,  if  exceptions  are  filed  to  it,  they  may  then 
be  disposed  of  by  the  court,  or  a  re-statement  ordered  to  be 
made  by  one  of  the  statutory  officers."^ 

Attachment  For  Contempt. 

An  executor,  administrator,  guardian  or  trustee  who  fails 
or  neglects  to  file  his  account  pursuant  to  citation  may  be 
attached  for  contempt,  under  the  provisions  of  section  183  of 
the  Orphans'  Court  Act,  which  provides  that  every  person 
duly  cited  or  summoned  to  appear  at  any  orphans'  court,  who 
shall  make  default,  shall  be  liable  to  attachment  for  contempt, 
and  the  court  is  authorized  and  empowered  to  compel  obedi- 
ence to  its  process,  orders  and  sentences,  by  imprisonment  of 
body  or  distress  and  sale  of  lands  and  goods,  as  fully  and 
amply  as  any  other  court  of  record  of  this  state."® 

«3McCloskey  v.   Bowden,  82  N.  63S„,ith  v.  Smith,  80  N.  J.  Eq., 

J.   Eq.,   410.  474. 

•'•^Orphans'  Court  Act.   sec.    117,  ''Sf^rphans"  Court   Act.  sec.   183. 

as  amended  by  P.  L.  1906.  p.  574.  3  Comp.  Stat..  3880. 
3  Comp.  Stat.,  p.  3854.  sec.  117. 


Accounting.  631 

Imposition  of  Costs  and  Forfeiture  of  Commissions. 

The  statute  provides  that  when  an  executor,  aihninistrator, 
guardian  or  trustee  has  neglected  to  account  for  two  years, 
and  such  neglect  has  been  reported  to  the  orphans'  court,  and 
he  is  cited  to  account  and  disoheys  such  citation,  that  he  shall 
pay  the  costs  of  such  citations  and  proceedings  out  of  his 
own  private  estate,  and  shall  forfeit  his  commission  and  not 
be  allowed  any  compensation  for  his  services.''' 

JURISDICTION  OF  CHANCERY  TO  ORDER  EXECUTOR, 
ETC.,    TO    ACCOUNT. 

In  General. 

The  Court  of  Chancer}-  has  concurrent  jurisdiction  with  the 
orphans"  court  in  the  settlement  of  estates  of  decedents ;  but 
where  there  are  no  special  reasons  for  going  into  equity,  the 
orphans"  court  is  the  proper  tribunal.  The  fact  that  an  execu- 
tor or  administrator  has  exhibited  an  account  in  the  orphans' 
court  will  not  deprive  chancery  of  its  jurisdiction  ;  but  chanc- 
ery will  not  interfere  unless  there  be  substantial  reasons  for 
invoking  its  aid.*''^  If,  however,  a  special  reason  be  apparent 
why  the  Court  of  Chancery  should  interfere  with  the  ordinary 
jurisdiction  of  the  orphans"  court  in  the  settlement  of  the 
accounts  of  executors  and  administrators,  it  is  not  onlv  the 
right  but  the  duty  of  that  court  to  interfere,  and  its  action  in 
the  premises  will  be  subject  to  review.*''' 

Partial  accounts  exhibited  and  allowed  by  the  orphans' 
court,  although  distribution  has  been  ordered  of  the  balance 
thereb}-  found  in  the  executor's  hands,  will  not  prevent  any 
person    interested    in    the   estate    from    bringing   the   executor 

'■■'Orplians'  Court  Act.  sec.   117,  Frey  v.   Demarest,    16  N.  J.   Eq.. 

as    amended    P.    L.    1906,    p.    574.  236.      Coddington   v.   Bispham.   36 

3  Comp.  Stat.,  p.  3854,  sec.  117.  N.  J.   Eq..  574.     Suydam  v.  Bas- 

•'«Salter  v.  Williamson,  2  N.  J.  tedo,  40  N.  J.  Eq..  433.     Houston 

Eq.,  480.     King  V.  Berry,  3  N.  J.  v.  Levy,  44  N.  J.  Eq.,  6-8  and  cases 

I'.q..  44.     Merselis  v.   Merselis,   7  cited ;    Matthews  v.   Hoagland.  48 

X.    J.    Eq.,    557.      Van    Mater    v.  N.  J.  Eq.,  455-491-     Bird  v.  Haw- 

Sickler,  9  N.  J.  Eq.,  483.    Black  v.  kins,  58  N.  J.  Eq.,  229. 
Whitall,  9  N.  J.  Eq.,  572.     Clarke  eopiHey    v.   VanDyke,    75    N.   J. 

V.    Johnston,    10    N.    J.    Eq.,    287.  Eq.,  571. 


632  Pkobate  Law  akd  Practice. 

into  chancery  at  any  time  before  final  settlement.'"  vSo  wliere 
complainant,  after  reaching  her  majority,  filed  a  bill  to  par- 
tition her  father's  realty  and  demanded  an  accounting  by  her 
mother  for  rents,  and  the  mother,  as  guardian  of  complainant, 
claimed  that  such  rents  must  be  accounted  for  by  her  as 
guardian  in  the  orphans'  court,  where  she  had  accounted  for 
a  portion  of  the  rents  collected,  it  was  held  that  as  to  the  rents 
accruing  after  the  account  to  the  orphans'  court,  the  Court  of 
Chancery  had  jurisdiction  f^  and  in  all  cases  where  a  party 
seeks  relief  on  grounds  peculiarly  of  chancery  jurisdiction, 
and  which  call  for  the  exercise  of  chancery  powers,  the  juris- 
diction of  chancery  is  paramount.'-  So  in  cases  where  the  lia- 
bility of  an  executor  or  trustee  rests  wholly  on  the  ground  of 
negligence,  the  appropriate  remedy  to  enforce  such  liability 
is  by  bill  in  equity ;'"  and  so  in  the  case  of  retention  by  an 
administrator  of  the  fund  in  his  hands,  mingled  with  his  own 
funds,  and  used  for  his  own  profit.'* 

After  a  final  account  is  settled  in  the  orphans'  court,  and.  a 
decree  made  thereon,  equity  has  no  jurisdiction  to  open  the 
account,  except,  as  in  case  of  all  other  judgments,  for  fraud  or 
mistake.'^''  Thus  a  palpable  mistake  appearing  upon  the  face 
of  an  account  after  final  allowance  and  settlement  may  be 
relieved  against  in  equity."''  So  an  executor,  who  was  also 
an  agent  or  trustee  of  the  testator  in  his  lifetime,  cannot,  after 
the  final  settlement  of  his  account  as  executor  in  the  orphans' 
court,  be  called  on  to  account  in  equity  as  such  trustee :   there 

""Merselis   v.   Merselis,  7   N.  J.  Eq.,  231.     Frey  v.  Demarest,  16  N. 

Eq.,  557.     Search  v.  Search,  27  N.  J.    Eq.,    236.      Voorhees    v.    Voo- 

J.  Eq.,  137.  rhees,  18  N.  J.  Eq.,  223.    Search  v. 

''■iKeeney    v.    Henning,    58    N.  Search,  27  N.  J.  Eq.,  137.    Tehan 

J.  Eq.,  74.  V.  Alaloy,  45  N.  J.  Eq.,  68.    Wey- 

^^King  V.  Berry,  3  N.  J.  Eq.,  44.  man  v.  Thompson,  50  N.  J.  Eq.,  8- 

''■^Suydam  v.  Bastedo,  40  N.  J.  22.     Reversed  52   N.  J.   Eq.,  263. 

Eq.,  433,  but  see  Hill  v.  Hill,  79  N.  Lippincott  v.   Bechtold,   54   N.   J. 

J.  Eq.,  521.  Eq.,  407 ;   see  also  "Jurisdiction  of 

^*Frey   v.    Demarest,    16    N.    J.  Chancery,"  p.  655,  infra. 

Eq.,  236,  ■^cBlack  v.  Whitall,  9  N.  J.  Eq., 

■^^Conover  v.   Conover,   i    N.  J.  572. 
Eq..  403.     Boulton  v.  Scott,  3  N.  J. 


Accounting.  633 

can  be  no  separate  accounting  in  the  two  different  capacities." 
■But  chancery  may  enjoin  a  trustee  from  paying  over  the  rents 
and  profits  of  the  lands  to  devisees,  and  require  him  to  account 
therefor,  although  he  may  ha\e  alread\-  accounted  in  the 
orphans'  court  as  administrator  ciuii  tcstamcnto  annexo.'^ 
The  fact  that  an  administratrix  moves  out  of  the  county 
soon  after  she  has  filed  her  inxentory,  and  that  the  intestate's 
creditors  have  thereby  been  prevented  from  jjresenting  their 
claims  to  her,  is  not  sufiicient  ground  for  ec|uity  to  assiunc 
jurisdiction  :'''  and  where  testator  was  a  non-resident  and  his 
will  has  never  been  proved  here,  the  fact  that  a  fund  claimed 
by  a  complainant  as  residuary  legatee,  on  the  ground  that  the 
will  contains  a  Aoid  bequest,  is  in  the  control  of  defendants 
within  this  state,  who  are  executors  of  the  executor  who 
proved  the  will,  is  not  sufficient  to  give  chancery  jurisdiction.^" 

When  Chancery  Will  Accept  Jurisdiction. 

The  Court  of  Chancery  has,  from  the  earliest  reported 
cases,  shown  a  disinclination  to  take  from  the  orphans'  court, 
when  the  latter  is  properly  proceeding,  matters  entirely  within 
its  jurisdiction,  and  which  may  in  most  instances  be  much 
better  dealt  with  in  that  court.  This  tendency  is,  and  un- 
doubtedly should  be,  strengthened  by  the  increasing  juris- 
diction that  has  been  and  is  constantly  l)eing  given  to  the 
orphans"  court.  The  original  papers,  the  parties  and  the 
proper  judicial  machinery  to  administer  the  rights  are  all 
present  in  the  counties  in  which  the  orphans'  courts  are  situ- 
ate ;  and  imless  a  complainant  clearly  exhibits  to  the  Court 
of  Chancery  that  by  reason  of  some  complication,  intricacy  or 
lack  of  jurisdiction  in  the  orphans'  court  the  case  requires  the 
aid  of  a  court  of  equity,  the  latter  court  should  discourage 
applications  to  it,  and  should  leave  the  parties  in  the  court  of 
first  jurisdiction,   from  which   they  may,   in   the  event  of  its 

^"Vanmeter    v.    Jones,    3    N.    J.  ■'•'Decker    v.    Decker.    27    N.    J. 

Eq.,  520.  Eq..  230. 

'^^Sherrerd  v.  Trimmer,  Novem-  •'"'Van     Gieson     v.     Banta,     40 

ber,    1884,    Bird,    \ .   C.     6    N.    J.  N.   J.    Eq..    14. 
Dig.,    i2588e. 


634  Probate  Law  and  Practice. 

erring,  eventually  appeal  to  the  same  court  from  which  appeals 
lie  from  the  Court  of  Chancery.^^ 

If  any  progress  has  been  made  in  the  orphans'  court  in  the 
settlement  of  an  account,  the  Court  of  Chancery  ought  not  to 
interfere  with  that  tribunal,  unless  there  is  some  good  cause 
for  its  doing  so.®-  Whether,  upon  a  bill  by  a  creditor  to  en- 
force his  claims  against  lands,  chancery  will  take  an  account 
of  the  personal  estate,  or  leave  the  orphans"  court  in  which 
the  account  has  been  filed  to  complete  it,  will  depend  upon  the 
circumstances  f^  but  where  all  of  the  parties  are  before  the 
Court  of  Chancery  under  a  bill  filed  by  the  executors  for  the 
construction  of  a  will,  or  in  any  other  manner,  the  account 
may  be  settled  there. '^^ 

FORM    OF   ACCOUNT. 

In  General. 

An  executor's  account,  where  there  is  an  estate,  and  allow- 
ances are  expected,  must  show  both  debits  and  expected 
credits ;  where  an  account  is  imperfect,  in  that  it  contains 
credits  onl}',  the  court  may  order  accountant  to  complete  it.*'* 

Petition  to  be  Annexed  to  Accounts. 

All  accounts  of  executors,  administrators,  guardians  or 
trustees  shall  ha\e  annexed  thereto  a  petition  which  shall  be 
addressed  to  the  orphans'  court  and  which  sliall  contain  the 

s'Wyckoff   V.    O'Niel.   71    N.   J.  yea.   54   N.   J.    Eq..  411.     Bird   v. 

Eq..   681.     Filley   v.   VanDyke,   74  Hawkins.  58  N.  J.  Eq.,  229.    Field 

N.  J.  Eq..  219.    Reversed  75  N.  J.  v.  Field.  6r  N.  J.  Eq..  154. 

Eq.,  571.     Streeter  v.  Braman,  76  ^-Clarke   v.   Jolmston.    10   N.   J. 

N.    J.     Eq..    371.      Shearman    v.  Eq..  287. 

Cameron.  76  N.  J.  Eq.,  426.     Out-  "•"■Suydam  v.  Voorhees.  58  N.  J. 

water    v.    Benson.    81    N.    J-    Eq..  Eq..  157. 

154.     Nelson  v.   Errickson.   8r   N.  s^Salter  v.  Williamson.  2  N.  J. 

J.  Eq.,  226.     Salter  v.  Williamson.  Eq..   480-490.      Mallory   v.   Craige. 

2   N.  J.   Eq..  480.     Van   Mater   v.  15    N.    J.    Eq..    73.      Voumans    v. 

Sickler,  g  N.  J.  Eq..  48.3.     Frey  v.  Yoim:ans,  26  N.  J.  Eq..  149.    Cod- 

Demarest,     16     N.     J.     Eq..     236.  dington  v.  Bispham.  36  N.  J.  Eq.. 

.Search   v.    Search.   27    N.   J.   Eq..  574-578. 

137.     Decker  v.  Decker.  27  N.  J.  s''Maxwell  v.  McCreery.  57  N.  J. 

Eq.,  239.     Titus  V.    Hoagland.   39  Eq..  287-290. 
N.  J.  Eq.,  294.     Rutherford  v.  Al- 


Accounting.  635 

names  and  addresses  of  all  persons  interested  in  said  account- 
ing and  shall  specify  which  if  any  of  such  persons  in  interest 
are  minors.  In  case  any  of  such  persons  in  interest  he 
minors  the  said  petition  shall  give  the  names  and  addresses  of 
the  guardians  of  such  minors  if  any.  or  if  there  be  no  guardian, 
then  the  names  and  addresses  of  the  persons  standing  in  loco 
parentis  to  said  minors :  said  petition  shall  also  contain  a 
summary  of  the  account  and,  in  the  case  of  a  first  accounting, 
shall  recite  the  amount  of  the  inventory.,  the  amount  shown 
by  the  account  to  have  been  collected  in  addition  thereto,  the 
amount  of  expenditures,  and  shall  state  the  balance  in  the 
hands  of  the  accountant.  In  the  case  of  a  second  or  other  ac- 
counting, said  petition  shall  recite  the  balance  remaining  in 
the  hands  of  accountant  as  shown  in  his  last  previous  account, 
the  amount  received  during  the  period  covered  by  the  account, 
the  amount  of  disbursements  shown  by  the  account,  and  the 
balance  in  the  hands  of  accountant.  Such  petition  annexed  to 
trustees*  accounts  shall  also  state  the  receipts  and  disburse- 
ments on  account  of  corpus  and  income  separately .  The  peti- 
tion and  account  shall  be  verified  by  the  oath  of  the  accountant, 
and  shall  pray  for  the  allowance  of  said  account,  and  also  for 
the  allowance  of  commissions  and  counsel  fees  if  the  account- 
ant intends  to  apply  therefor.*'' 

Accounts  of  Executors,  Administrators  and  Guardians. 

In  the  ordinary  account  of  an  executor,  administrator  or 
guardian  it  is  only  necessary,  on  the  one  hand,  to  charge  the 
accountant  with  the  assets  received,  and,  on  the  other  hand, 
to  pray  allowance  for  moneys  disbursed,  and  to  then  exhibit 
the  balance  for  distribution.  In  those  cases  where  both  corpus 
and  income  are  to  be  distributed  to  the  same  persons,  it  is  un- 
necessary to  separate  receipts  and  disbursements  of  income 
from  receipts  and  disbursements  of  principal. 

Trustees'  Accounts. 

In  the  case  of  accounts  of  trustees,  and  in  all  cases  where 
the  executor,  whether  expressly  named  as  trustee  or  not,  is 
required  to  retain  funds  of  the  estate  in  his  hands  and  to  pay 

*®Orphans'   Court   Rule   19. 


636  Probate  Law  and  Practice. 

tlie  income  thereof  to  one  person  until  the  happening  of  a 
certain  event,  whereupon  he  is  required  to  pay  the  principal 
over  to  another  person,  it  is  perfectly  obvious  that  the  receipts 
and  disbursements  from  income  must  be  separate  from  those 
from  corpus.  In  such  case,  the  accountant  should  first  charge 
himself  with  all  receipts  of  corpus,  then  pray  allowance  of  all 
payments  out  of  corpus,  and  exhibit  the  balance  of  corpus 
remaining  in  his  hands;  he  should  then  charge  himself  with 
all  receipts  of  incorrte,  pray  allowance  for  all  payments  out  of 
income,  and  exhibit  the  balance  of  income  remaining  in  his 
hands.  Since  in  cases  of  this  character  different  persons  are 
entitled  to  the  balances  of  income  and  of  corpus,  these  balances 
should  never  be  blended. 

Inasmuch  as  the  purpose  of  an  accounting  is  to  show  the 
balance  with  which  accountant  should  be  charged,  an  account- 
ant who  has  made  investments  of  funds  of  the  estate  should 
not  pray  allowance  for  the  moneys  so  disbursed,  nor  should 
he,  on  the  other  hand,  in  the  event  of  the  payment  to  him  of 
moneys  secured  by  investments  which  he  holds,  charge  himself 
with  the  amount  of  moneys  so  paid  to  him.  In  both  cases 
the  balance  in  his  hands  remains  unchanged  :  only  the  form 
in  which  the  balance  is  held  has  been  changed,  and  this  is 
shown  by  the  schedule  of  assets  required  to  be  annexed  to  the 
account. 

List  of  Investments  to  be  Annexed  to  Account. 

In  the  settlement  of  the  accounts  of  executors,  administra- 
tors, guardians  or  trustees,  the  accountant  shall  annex  to  the 
account  a  full  statement  or  list  of  the  securities,  investments 
and  assets  of  which  the  balance  of  the  estate  in  his  hands  con- 
sists, and  a  statement  of  all  changes  made  in  the  securities  since 
the  filing  of  the  inventory  or  since  the  last  settlement.®' 

This  rule  of  the  orphans'  court  requires  executors,  adminis- 
trators, guardians  and  trustees  to  state  the  securities  in  which 
the  estate  is  invested ;  and  if  this  statement  of  the  securities 
has  been  so  annexed  to  the  account,  the  question  of  the  right 

s^Orphans'  Court  Rule  21. 


Accounting.  637 

of  the  executors  to  make  such  investments  may  be  adjudicated 
upon  by  the  orphans'  court  on  exceptions  thereto.*^ 

CHARGES  AGAINST  ACCOUNTANT. 

In  General. 

An  executor  must  account  for  all  the  goods  and  chattels, 
real  and  personal,  in  possession  and  in  action,  of  which  de- 
cedent died  possessed,  and  which  come  into  his  hands,  together 
with  any  additions  thereto,  either  by  way  of  natural  increase, 
income,  or  increase  in  value ;  and,  in  addition,  for  all  those 
which  come  into  his  hands  as  personal  representative  of  de- 
cedent, as  well  as  those  which  were  lost  by  reason  of  his 
neglect  to  collect  or  reduce  to  possession.^'' 

Amount  of  Inventory. 

Accountant  should  first  charge  himself  with  the  inventoried 
value  of  the  estate ;  and,  as  a  general  rule,  an  executor,  ad- 
ministrator, guardian  or  trustee  is  chargeable  with  the  amount 
of  the  inventor}"  filed  by  him,  unless  he  can  explain  away  and 
overcome  the  presumption  arising  from  the  admission  of  lia- 
bility incurred  from  proving  the  inventory. ^°  So  where  an 
executrix  under  a  will  which  gives  her  a  life-estate  in  the 
personalty,  with  the  power  to  use  so  much  of  the  principal  as 
necessary  for  her  comfort  and  support,  fails  to  keep  an  account 
of  the  amount  realized  from  the  sale  of  certain  personal  prop- 
erty, she  will  be  charged  with  the  value  of  such  property  as 
inventoried,  although  part  may  have  been  consumed  in  its 
use  before  the  sale.**^ 

Evidence  to  explain  away  and  overcome  the  presumption 
arising  from  the  solemn  admission  of  liability  made  by  proving 
the  inventory  should  be  clear,  consistent  and  preponderating. ''- 
So  where  an  administrator  inventories  personal  property  as 

88Macy  V.  Mercantile  Trust  Co.,  Smith,   58  N.  J.  Eq..  25.  and  see 

68  N.  J.  Eq.,  235.                   .  "Inventories,"  p.  360.  supra. 

893  Williams  on  Executors,  1518.  »iHunt  v.   Smith,   58  N.  J.  Eq., 

ooVanpelt  v.  Veghte,  14  N.  J.  L.,  25. 

207-210.     Cooley  V.  Vansyckle,  14  ^^Xichenor  v.  Tichenor.  45  N.  J. 

X.  J.  Eq.,  496.    Tichenor  v.  Tiche-  Eq.,  303.     Bayley's  Case,  67  X.  J. 

nor,  45   N.  J.   Eq.,  303.     Hunt   v.  Eq..  566. 


638  Pkobate  Law  and  Practice. 

part  of  the  estate  of  his  decedent,  and  afterwards  claims  that 
it  was  not  property  of  said  decedent,  and  prays  allowance  for 
it  in  his  account,  the  burden  of  establishing  the  fact  that  it 
did  not  belong  to  decedent  is  cast  upon  him,  and  he  is  not  en- 
titled to  the  allowance  pr^ed  except  upon  satisfactory  proof 
of  that  fact.''"  So  an  executor  will  be  charged  with  the  amount 
of  a  note  against  himself  set  down  in  the  inventory  and  alleged 
to  have  been  lost  or  destroyed  by  testator  in  his  lifetime,  where 
the  existence,  amount  and  loss  of  the  note  are  satisfactorily 
proved,  and  where  there  are  no  circumstances  sufficient  to 
raise  the  presumption  that  the  note  was  intentionally  destroyed 
by  testator.''*  And  so  where  an  executor  included  in  the  in- 
ventory of  the  estate  of  testator  commercial  paper  made  by 
himself,  and  found  in  the  possession  of  testator  at  death,  and 
in  accounting  the  executor  did  not  charge  himself  with  the 
amount  of  such  paper,  it  was  held  that  evidence  to  explain 
away  and  overcome  the  presumption  arising  from  the  posses- 
sion of  such  paper  and  the  solemn  admission  of  liability  made 
bv  proving  the  inventory  ought  to  be  clear,  consistent  and  pre- 
ponderating, and  that,  in  the  absence  of  such  evidence,  the 
executor  should  be  charged  therewith.^^ 

Where  an  executor  neglects  to  inventory  assets,  and  the 
residuary  legatee  had  an  opportunity  to  object  to  such  omission, 
and  there  is  a  question  as  to  whether  the  assets  so  omitted 
belonged  to  decedent  or  to  the  executor,  the  executor  will  not 
be  charged  with  them,  in  an  action  to  compel  an  accounting.^" 
So  if  the  executors  are  satisfied  that  there  is  nothing  due  the 
estate  upon  a  claim  included  in  the  inventory,  they  will  not 
be  chargeable  with  the  amount,  unless  it  be  made  to  appear 
that  the  amount  was  really  due.'-'' 

If  accountant  is  unable  to  realize  the  inventoried  value  for 
any  of  the  assets  of  the  estate,  he  should  still  charge  himself 
with  such  assets,  and  pray  allowance  for  the  loss  by  depreci- 

93Bayley's    Case,    67   N.   J.   Eq.,  ^eHunt  v.  Smith.  58  N.  J.  Eq.. 

566.  25. 

9*Clark  V.   Hornbeck,    17  N.   J.  s^Stark  v.  Hunton,  3  N.  J.  Eq., 

Eq.,  430.  300. 

"^Tichenor  v.  Tichenor,  45  N.  J. 
Eq..  303. 


Accounting.  639 

ation.^*  If.  on  the  other  hand,  more  than  the  inventoried  value 
is  received  for  assets  of  the  estate,  accountant  should  charge 
himself  with  the  amount  of  such  appreciation  over  the  in- 
ventoried valuation. 

Other  Items  of  Charge. 

In  addition  to  charging  himself  with  the  amount  of  the 
inventory  and  all  appreciations  thereto,  accountant  should 
charge  himself  with  all  other  personal  property  of  the  estate 
received  by  him.  whether  from  assets  which  were  inadvertent- 
Iv  omitted  from  the  inventory,  interest  on  assets  in  his  hands, 
or  any  other  sources.'''' 

ALLOWANCES  TO  ACCOUNTANT. 
In  General, 

Accountant  should  pra\-  allowance  for  all  disbursements 
made  by  him  out  of  the  funds  of  the  estate,  ^^'hile  the  items 
on  the  credit  side  of  an  account  may  ])e  expressed  in  general 
terms,  still  they  should  be  particularized  to  such  an  extent  as 
to  give  to  parties  in  interest  information  as  to  the  nature  of 
the  disbursement.'"'^ 

Claims  Not  Actually  Paid. 

The  mere  fact  that  a  debt  or  legacy  has  not  been  actually 
paid  constitutes  no  objection  to  its  allowance  on  the  settlement 
of  the  account,  if  its  existence  is  clearly  established;  by  the 
settlement,  the  executor  or  administrator  becomes  liable  for 
ihe  amount  so  alUnved.'  l>ut  if  the  executor  or  administrator, 
b)-  collusion  with  the  claimant,  claims  allowance  for  a  debt  not 
paid,  in  order  to  withdraw  the  cognizance  of  the  question  from 
the  ordinary  tribunals  of  law  or  equity,  it  is  a  good  ground  of 
exception  before  the  orphans'  court,  and  the  item  may  be 
stricken  from  the  account. - 

"SMcCully  V.  Lum.  49  N.  J.  Eq..  iVrceland  v.  \'rceland.  16  N.  J. 

5.S2.  Hq..  512. 

^"See  "Assets.''  p.  Zil'  supra.  -\'rccland  v.  Vrccland.   16  N.  J. 

looLiddel  V.  McVickar,  11  N.  J.  I"q.,  51J. 
L..  44. 

42 


640  Probate  Law  and  Practice. 

What  Constitutes  Payment. 

Where  a  testator  directs  that  certain  debts,  for  which  he  is 
secondarily  responsible,  and  which  are  secured  upon  lands 
of  the  original  debtor,  shall  be  paid,  and  the  mortgages  as- 
signed to  a  beneficiary  named,  the  executor  or  administrator 
will  not  be  allowed  credit  for  the  payment  of  these  debts  until 
he  secures  assignments  of  the  mortgages.^  But  an  adminis- 
tratrix should  be  allowed  for  the  payment  of  a  debt  due  from 
the  estate,  although  it  was  paid  with  money  held  by  her  as 
guardian,  she  being  chargeable  therewith  in  her  guardianship 
accoiuit.* 

Exemption  for  Widow  and  Children. 

The  widow  and  children  of  a  deceased  debtor  are  entitled 
to  decedent's  wearing  apparel,  and  may  select  goods,  moneys 
or  effects,  belonging  to  deceased,  to  the  amount  of  $200;^ 
and  if  such  exemption  is  set  oft',  pursuant  to  the  provisions  of 
the  statute,  accountant  should  pray  allowance  for  the  same. 
But  unless  property  to  the  amount  of  $200  is  actually  appro- 
priated according  to  the  provisions  of  the  statute,  that  sum 
cannot  be  retained  l:)y  the  administrator  on  the  settlement  of 
his  account.*' 

Loss  and  Depreciation  of  Assets. 

Where  executors  inventory  notes,  mortgages  or  other  assets 
of  the  estate  at  their  face  or  estimated  value,  and  less  than 
the  inventor}'  value  has  been  received  for  such  assets  by  the 
executors  upon  foreclosure  of  the  mortgage  or  sale  of  the 
assets  so  inventoried,  they  should  pray  allowance  in  their 
account  for  the  difference  between  the  inventory  value  and  that 
actually  received  by  them,  and  the  amount  will  be  allowed 
by  the  court,  in  the  absence  of  proof  that  such  loss  was 
occasioned  by  their  fault,  neglect  or  misconduct.' 

sRurlbut    V.    Hutton,    44    N.    J.  •^Cooley  v.   Vansyckle,    14  N.  J. 

Eq..  302.  Eq..  496. 

^Birkholm  v.  Wardell,  42  N.  J.  '^Dey  v.   Codman,  39  N.  J.   Eq.. 

Eq.,  337-  258.      McCully   v.   Lum,   49   N.   J. 

•''See      "Inventories,"      p.      360,  Eq.,    552,    and    see    "Loss    or    De- 

supra.  preciation     of     Assets,"     p.     400. 

supra. 


Accounting.  641 

In  Guardians'  Accounts. 

Section  115  of  the  Orphans'  Court  Act*,  provides  that  every 
guardian  "shall  exhibit  to  the  orphans'  court  once  in  three 
vears,  and  oftener,  if  required,  an  account  of  all  moneys,  goods 
and  chattels  he  shall  receive  and  of  the  rents,  issues  and 
profits  of  any  real  estate  in  his  possession  belonging  to  his 
ward."  Section  124,  as  amended'',  provides  that  the  inter- 
mediate account  of  every  guardian  shall  be  examined  by  the 
court,  and,  if  found  to  be  correct  "and  the  articles  thereof  to 
1)6  supported  and  justified  by  the  vouchers,"'  shall  be  entered 
of  recorfl.  It  will  be  observed  that  section  115,  providing  for 
the  filing  of  these  intermediate  accounts,  does  not  provide  for 
anything  but  an  account  of  moneys  actually  received.  Section 
124,  as  amended,  liowever,  contains  this  provision,  "and  the 
articles  thereof  to  be  supported  and  justified  by  the  vouchers." 
It  would  appear  that  this  language  contemplates  the  production 
of  receipts  for  moneys  paid  and  nothing  else,  and  seems  to 
exclude  the  idea  that  the  personal  services  or  personal  claims 
of  the  guardian  are  intended  to  be  included  within  its  pro- 
visions. It  would  seem,  therefore,  that  the  jiu'isdiction  of 
the  orphans'  covirt  is  confined  to  receipts  and  such  actual  dis- 
bursements as  were  made  in  cash,  and  does  not  include  charges 
by  a  guardian  for  the  sup])ort  of  her  ward,  who  is  also  her 
child;  and  hence  the  account  of  such  a  guardian  passed  by 
the  orphans'  court,  will  not  be  regarded  as  prima  facie  correct 
in  such  particulars.^" 

STATING  AND  SETTLING  ACCOUNTS.        ^ 

Surrogate  to  Audit,  State  and  File  Accounts. 

The  surrogate  shall  audit  and  state  the  accounts  of  execu- 
tors, administrators,  guardians  and  trustees,  and  place  the 
same  on  the  files  of  his  office,  subject  to  the  inspection  of 
any  person  interested  therein,  at  least  twenty  days  previous  to 
the  same  being  j^rcsented  to  the  court,  and  shall  report  the 
same  to  the  orphans"  court  for  confirmation  and  allowance  on 
the  day  for  which  the  same  was  noticed  for  settlement,  or  at 

"Page  616,  supra.  I'^'Keeney   v.   Ilcnnin.e:,   64   N.  J. 

"See  p.  649.  infra.  F.q.,  65. 


642  Probate  Law  and  Practice. 

such  subsequent  time  to  which  the  hearing  shall  have  been 
adjourned. ^^ 

Method  of  Auditing  Account. 

To  audit  an  account  is  to  see  that  accountant  is  charged  with 
everything  with  which  he  is  justly  chargeable,  and  that  nothing 
is  placed  on  the  credit  side  of  the  account  for  which  he  is 
not.  justly  entitled  to  credit,  and,  after  the  debits  and  credits 
are  thus  made  up,  to  ascertain  the  balance  remaining  in  his 
hands.' - 

Vouchers  to  be  Lodged  With  Surrogate. 

Executors,  administrators,  guardians  and  trustees  who  have 
noticed  their  accounts  for  settlement  shall  lodge  with  the 
surrogate  the  vouchers  and  receipts  for  payments  and  dis- 
bursement claimed  therein,  at  least  twenty  days  previous  to  the 
day  on  which  said  account  is  noticed  for  settlement,  which 
said  vouchers  shall  be  open  to  the  inspection  of  all  interested 
persons.  The  surrogate  shall  not  report  any  account  to  the 
orphans'  court  for  allowance  and  settlement  unless  the  said 
vouchers  and  receipts  have  been  lodged  with  him  in  compliance 
with  this  rule.'" 

It  is  the  duty  of  executors,  administrators,  guardians  and 
trustees  to  keep  accounts,  and  to  take  and  preserve  proper 
vouchers  for  payments  they  make.'* 

Checks  as  Vouchers. 

Tl\e  question  has  been  raised  as  to  whether  a  check  of  the 
administrator  to  the  order  of  the  person  for  whose  claim 
allowance  is  prayed  in  the  account  is  a  sufficient  voucher.  The 
object  of  requiring  executors,  administrators,  guardians  and 
trustees  to  account  is  to  disclose  to  those  interested  their 
management  of  the  estate  :    and  the  object  of  requiring  the 

^^Orphans'  Court  Act.  sec.  121,  ^-Heath's    Case,    52    N.    J.    Eq.. 

as  amended  liy  P.  L.   1905,  p.  299.  Scy.   and    «ec   "Cliecks   as   \'oucli- 

3   Comp.    Stat.,    p.    3855,   sec.    121.  crs,"  this  page,  infra. 

As    to    report    of    surrogate,    see  i^Qj-phans'   Court   Rule   17. 

"Checks  as  Vouchers,"  this  page.  i*Dufford    v.    Smith,    46    N.    J. 

infra.  Eq.,  216.     Smith   v.   Robinson.   83 

X.  T.  Eq..  384-388. 


Accounting.  643 

account  and  vouchers  lo  l)e  tiled  twenty  days  before  the  dale 
upon  which  such  account  is  noticed  for  settlement,  is  to  enable 
parties  in  interest  to  inspect  them,  in  orfler  to  ascertain  whether 
the  executor,  administrator,  guardian  or  trustee  has  propcrlv 
performed  his  duty — whether,  on  the  (Mie  hand,  he  has  col- 
lected all  of  the  assets  of  the  estate,  and  has  charged  himself 
with  the  same  at  their  proper  value,  and  whether,  on  the  other 
hand,  he  prays  allowance  only  for  claims  which  are  justified 
in  law. 

The  object  of  requiring  that  the  surrogate  audit  and  state 
the  account  is  that  there  may  l^e  an  official  verification  of  the 
same  for  the  benefit  of  those  in  interest,  and  it  would  seem 
clear  that  it  is  impossible  for  the  surrogate  intelligently  to 
audit  an  account  from  the  mere  production  of  such  checks 
From  an  examination  of  the  '125th  section  of  the  Orphans' 
Court  Act^^,  it  would  appear  that  it  is  the  duty  of  the  surro- 
gate to  do  something  more  than  merely  to  go  over  the  account 
and  the  vouchers  for  disbursements  presented  to  him.  and 
ascertain  whether  or  not  there  is  a  voucher  for  everv  item 
prayed  allowance  for;  it  is  his  duty  to  inspect  the  items  for 
which  allowance  is  prayed,  and,  if  there  be  any  which  appear 
to  be  unjustified  in  law,  to  report  the  fact  to  the  orphans' 
court. 

The  statute,  it  will  be  recalled,  requires  the  surrogate  to 
report  the  account  for  settlement.  Now,  this  language  must 
mean  something,  and,  if  it  means  anything  at  all,  must  mean 
that  the  surrogate  is  required  to  call  the  court's  attention  to 
any  inaccuracies  or  improper  payments  appearing  upon  the 
face  of  the  papers  which  he  has  observed  in  going  over  the 
account;  and,  furthermore,  the  125th  section  of  the  Orphans' 
Court  Act^°,  provides  that  the  court  shall  allow  the  account 
only  upon  proof  to  the  court  of  notice  of  settlement  having 
been  given  "and  no  exception  being  made  to  the  report  of  the 
surrogate."  From  this  language,  it  would  appear  that  the 
statute  contemplates  the  possibility  of  the  surrogate  reporting 
adversely  to  the  allowance  (;f  the  account,  and  provides  for 
exceptions,  not  only  to  the  account,  but  to  the  report  of  the 

'^Page  647,  infr.i.  '"Page  647,   infra. 


644  pROiiATE  Law  and  Practice. 

surrogate,  from  which  it  would  clearly  follow  that  in  auditing 
the  account  the  surrogate  is  required  to  examine  the  account 
and  vouchers,  and  to  report  any  inaccuracies,  errors,  or  im- 
proper items  appearing  upon  the  face  of  the  papers,  to  the 
orphans'  court.  It  is  manifestly  impossible  for  the  surrogate  to 
properly  perform  this  quasi  judicial  act  by  the  mere  scrutiny  of 
checks  purporting  to  justify  the  payments  in  the  account.  It 
is  therefore  apparent  that  the  statute  contemplates  the  pro- 
duction before  the  surrogate  of  evidence  of  the  payments  for 
which  allowance  is  claimed  in  the  account,  from  which  he  can 
ascertain  whether  or  not  such  payments  are  proper,  and  that 
checks  do  not  fulfill  the  requirements  of  the  statute.^' 

Appeal  from  Statement  of  Accounts  by  Surrogate. 

No  appeal  lies  from  the  statement  or  re-statement  of  ac- 
counts by  the  surrogate,  but  only  from  the  decree  of  the 
court.^® 

NOTICE    OF    SETTLEMENT    OF    ACCOUNTS. 

Statutory  Provisions.  ♦ 

The  account  of  every  executor,  administrator,  guardian  or 
trustee  shall  be  noticed  for  settlement  on  a  day  certain,  and 
shall  not  be  allowed  by  the  orphans'  court  except  as  herein- 
after provided,  unless  such  executor,  administrator,  guardian 
or  trustee  shall  first  give  at  least  one  month's  notice  of  such 
settlement  by  advertisements  set  up  in  five  of  the  most  public 
places  of  the  county  in  which  such  settlement  is  to  be  made, 
one  whereof  shall  be  set  up  in  the  surrogate's  ofifice  of  said 
county,  and  also  by  publishing  the  same  at  least  once  in  each 
week  in  one  or  more  newspapers  published  in  such  county  for 
the  same  length  of  time,  and  in  case  no  newspaper  be  published 
in  the  county,  then,  instead  of  advertising  such  notice  in  the 
newspaper,  by  setting  up  advertisements  in  ten  of  the  most 
public  places  in  said  county  for  the  like  space  of  time,  two  of 
which  places  shall  be  the  clerk's  and  surrogate's  offices  of  said 
county,  and  in  every  instance  by  mailing  at  least  twenty  days 

^'In  re  Ketcham.  35  N.  T.  L.  J.,  ^^Cooley  v.  Vansyckle.  14  N.  J. 

34^.  Eq.,  496. 


ACCOUNTIKG.  645 

prior  to  the  date  fixed  for  settlement  of  sueli  account  a  copy 
of  such  notice  to  the  sureties  on  the  bonds  of  such  executor, 
administrator,  guardian  or  trustee,  at  the  last  known  post- 
ot^ce  address  of  such  sureties;  proz'idcd,  //ou-rirr,.  that  where 
the  personal  estate  does  not  exceed  the  sum  of  five  hundred 
dollars,  the  judge  of  the  orphans'  court  may  on  application  or 
of  his  own  motion,  dispense  with  or  modify  these  require- 
ments.^^ 

In    Cases   of    Guardians    and   Trustees,    Citations    May    be 
Issued. 

In  cases  of  the  accounts  of  guardians  and  trustees,  in  lieu 
of  the  notice  aforesaid  the  surrogate  may  issue  citations  to 
all  parties  concerned,  including  the  sureties  of  such  guardians 
and  trustees,  to  appear  at  the  said  orphans'  court,  which  cita- 
tions shall  be  ser\ed  at  least  ten  days  before  the  sitting  of  the 
court ;  and  such  guardian  or  trustee,  or  any  person  on  his 
behalf  may  serve  such  citation  on  such  wards  or  other  parties 
by  delivering  a  cop}-  thereof  to  them,  or  by  leaving  a  copy  at 
their  usual  place  of  abode  with  some  person  of  the  age  of 
fourteen  years  or  upwards,  and  make  and  file  with  the  surro- 
gate an  affidavit  setting  forth  the  time,  place  and  manner  of 
such  service,  whereupon  the  same  shall  have  the  force  and 
effect  of  a  service  by  the  proper  officer;  no  other  notice  of 
such  settlement  shall  be  required,  but  a  citation  shall  issue  on 
the  final  accounting  of  guardians  or  trustees.-'^ 

Intermediate  Accounts  of  Guardians. 

The  intermediate  accounts  of  guardians  are  required  by  the 
act  to  be  noticed  for  settlement,  audited  and  stated  by  the 
surrogate,  and  reported  to  the  court,  in  the  same  manner  as 
the  accounts  of  executors,  administrators  and  trustees.-' 

Notice  of  Settlement  of  Accounts  to  be  Mailed. 

In  addition  to  the  posting  and  puI)lication  of  notices  of 
settlement  of  the  accounts  of  executors,  administrators,  guard- 

^•'Orphans'  Court  Act,  sec.   122,       as  amended  by  P.  L.  1906,  p.  575. 
as  amended  by  P.  L.  1915.  P-  7i5-      3  Comp.  Stat.,  p.  3856,  sec.  123. 
^''Orphans'  Court  Act,  sec.   123,  -'Orphans'  Court  Act,  sec.  124. 

p.  649,  infra. 


646  Probate  Law  and  Practice. 

ians  and  trustees  ])rescribed  by  law,  one  month's  notice  of  the 
settlement  of  all  accounts  of  executors,  administrators,  guard- 
ians and  trustees,  together  with  a  statement  as  to  whether 
counsel  fees  and  commissions  will  be  applied  for  by  said  ac- 
countant on  the  allowance  of  said  account  by  the  court,  shall 
be  given  by  said  accountant  to  all  persons  interested  therein, 
which  notice  may  be  sent  by  mail  with  the  postage  thereon  pre- 
paid. In  case  any  person  interested  in  the  settlement  of  such 
account  be  a  minor,  such  notice  shall  be  mailed  to  the  guardian 
of  such  minor,  if  any;  if  there  be  no  guardian,  then  to  the 
parent  or  other  person  standing  in  loco  parentis  to  said  minor. 
Proof  of  such  mailing  shall  be  by  affidavit  filed  in  the  office 
of  the  surrogate  on  or  before  the  day  on  which  said  account 
is  noticed  for  settlement. ■- 

Sufficiency  of  Notice. 

Notice  of  an  intention  to  settle  an  account  "in  the  term  of 
December  ensuing,"  dated  January  2,  1883,  and  purporting 
to  have  been  signed  by  the  executor,  when  in  fact  he  had  died 
before  the  notice  was  signed,  is  insufficient  to  authorize  the 
passing  of  the  acc6unt  in  April,  1883.-" 

Necessity  for  Notice. 

In  an  attempted  settlement  by  a  guardian  of  his  account, 
there  must  be  a  compliance  with  the  requirements  of  the  statute 
to  render  the  account  exhibited  by  the  guardian  prima  facie 
evidence  of  its  correctness,  and  to  impose  upon  the  ward  the 
burden  of  proving  or  showing  the  falsity  or  injustice  of  any 
item  of  the  account  to  which  he  may  afterwards  take  excep- 
tions.-* The  orphans'  court  has  no  jurisdiction  to  allow  the 
account  of  an  executor,  administrator,  guardian  or  trustee 
unless  it  has  been  advertised,  posted  and  reported  for  settle- 
ment by  the  surrogate,  as  provided  by  section  122  of  the 
Orphans"  Court  Act.-^^ 

"Orphans'  Court  Rule   18.  ^sSmith  v.  Smith.  80  N.  J.  Eq.. 

-•''Gray  v.  Myrick,  38  N.  J.  Eq.,  474,  and  see  Orphans'  Court  Act, 
210.  sec.  122,  p.  644.  supra. 

-*Burnham  v.  Balling,   16  N.  J. 
Eq.,  144. 


Accounting.  647 

When  Account  is  Filed  Pursuant  to  Citation. 

Where  an  executor  or  administrator  files  an  account  pur- 
suant to  a  citation  requiring  him  to  account,  he  must  notice 
his  account  for  settlement  according  to  the  i)rovisions  of  sec- 
tion 122  of  the  Orphans'  Court  Act.-" 

DECREE  ON  ALLOWANCE  OF  ACCOUNTS. 

Decree  on  Accounts  Other  Than  Guardians'  Intermediate. 

The  court  to  which  the  account  of  any  executor,  adminis- 
trator or  trustee,  or  the  final  account  of  any  guardian,  sliall 
he  reported  shall  examine  the  said  account  and  the  \  ouchers 
and  receipts  for  payments  and  disbursements  claimed  therein, 
and,  if  the  same  be  found  to  be  correct  in  all  res]jects,  the  court, 
on  due  proof  that  notice  of  such  settlement  has  been  given 
and  advertised,  or  that  the  parties  have  been  cited  as  aforesaid, 
and  no  exce]:»tion  being  made  to  the  report  of  the  surrogate, 
shall  decree  an  allowance  of  the  account  as  stated  ;  provided, 
that  in  all  cases  where  it  appears  that  there  is  a  balance  due  the 
accoinitant  the  coiu't  shall  not  decree  an  allowance  of  the 
accoinit  imtil  the  ne.xt  regular  term  after  that  to  which  the 
report  is  made.-' 

Decree  on  Final  Account  Conclusive. 

The  sentence  or  decree  of  the  orphans"  court  on  the  final 
settlement  and  allowance  of  the  accounts  of  executors,  ad- 
ministrators, guardians  or  trustees  shall  be  conclusive  upon 
all  parties,  and  shall  exonerate  and  forever  discharge  every 
such  executor,  administrator,  guardian  or  trustee  from  all 
demands  of  creditors,  legatees  or  others,  beyond  the  amount 
of  such  settlement,  except'  for  assets  or  moneys  which  may 
come  to  hand  after  settlement  as  aforesaid,  excepting  also 
in  cases  where  a  party  applying  for  a  re-settlement  shall  prove 
some  fraud  or  mistake  therein,  to  the  satisfaction  of  the  said 
orphans'  court. -- 

-''Githens   v.  (".oodwin,  32  N.  J.  as  amended  by  P.  L.  1905,  p.  300. 

Hq.,  286,  and  .see  Orphan.s'  Court  3  Comp.  Stat.,  p.  3856,  sec.   125. 
Act,  seg,  122,  p.  644,  supra.  -**Orphans'  Court  Act,  sec.   127. 

^^Orphans'  Court  .Xct,  sec.   125,  3  Comp.  Stat.,  3857. 


648  Probate  Law  and  Practice. 

What  Constitutes  a  Final  Account. 

The  mere  fact  that  an  account  is  styled  "intermediate,"'  or 
"final."  has  no  weight  in  determining  its  character.  When  an 
executor  or  administrator  presents  his  account,  purporting  to 
charge  himself  with  everything  that  he  has  received  and  to 
credit  himself  with  everything  that  he  has  disbursed,  and  to 
show  the  balance  on  hand  for  distribution  among  the  legatees 
or  next  of  kin,  and  the  court,  after  due  notice  to  parties  inter- 
ested, makes  its  decree  approving  and  allowing  such  account, 
it  is  a  final  settlement  of  the  account,  even  though  it  appear 
that  there  is  still  outstanding  property  of  the  decedent  which 
may  yet  come  into  accountant's  possession  for  administra- 
tion ;-^  and  if  an  account  rendered  in  the  orphans'  court  appears 
on  the  face  of  it  to  be  a  final  account,  it  will  be  deemed  such, 
although  not  so  styled  in  the  caption."" 

Conclusiveness  of  Decree  on  Final  Account. 

A-  decree  of  the  orphans'  court  on  final  accounting  cannot 
be  questioned  in  a  collateral  proceeding,  and  equity  will  take 
the  balance  stated  in  the  account  to  be  the  true  balance  in  the 
hands  of  the  executor,  and  will  not  look  behind  the  settlement 
of  the  orphans'  court,  except  on  the  ground  of  fraud  or  mis- 
take in  procuring  it  f^  but  a  decree  of  the  orphans'  court  settl- 
ing a  balance  in  the  executors'  hands  does  not  decide  that  this 
balance  must,  under  the  will,  be  paid  in  cash.^- 

It  is  essential  to  the  validity  of  a  decree  allowing  an  account 
that  there  be  a  compliance  with  the  requirements  of  the  statute 

-''Stevenson  v.  Phillips,  21  N.  J.  14   N.   J.   Eq.,   527.     Voorhees   v. 

L.,  70.    Pomeroy  v.  Mills,  sj  N.  J.  Voorhees,     18    N.     J.     Eq.,     223. 

Eq-    578-581.     Terhune   v.   Oldis,  Search   v.    Search.   27   N.  J.   Eq., 

44  N.  J.  Eq.,  146-147.    Weyman  v.  137.     Tehan   v.    Maloy,   45    N.   J. 

Thompson,  50  N.  J.  Eq.,  8-21.    Re-  Eq.,   68.     Weyman  v.   Thompson, 

versed  52  N.  J.  Eq.,  263.  50  N.  J.   Eq.,  S-22.     Reversed  52 

^''Stevenson  v.  Phillips,  21  N.  J.  N.    J.    Eq.,    263.      Lippincott    v. 

L.,  70.  Bechtold,  54  N.  J.   Eq.,  407;    see 

siConover  v.  Conover,    i    N.  J.  also    "Jurisdiction    of    Chancery," 

Eq.,  403.    Boulton  v.  Scott,  3  N.  J.  p.  655,  infra. 

Eq.,  231.     Black  v.  Whitall,  9  N.  32]VJacy     y      Mercantile,   Trust 

T.  Eq.,  572.    Ordinary  v.  Kershaw.  Company.  68  N.  J.  Eq..  235. 


Accounting.  649 

as  to  noticing  the  account  for  settlement  and  as  to  the  auditing, 
stating,  and  reporting  of  the  same  to  the  court  by  the  surro- 
gate. In  the  absence  of  these  forniaUtios,  the  decree  allowing 
the  account  is  ineffectual."'''' 

Decree  on  Guardians'  Intermediate  Accounts. 

The  intermediate  account  of  e\"er\  guardian,  after  the  same 
has  been  audited  and  stated  by  the  surrogate  and  reported 
to  the  orjihans'  court,  and  notice  given  to  or  citation  served 
on  the  parties  in  interest  as  aforesaid,  shall  be  examined  by 
the  court,  and  being  found  to  be  properly  and  fairly  stated, 
and  the  articles  thereof  to  be  supported  and  justified  by  the 
vouchers,  shall  l)e  entered  of  record  ;  and  if  any  article  of 
such  account  be  at  any  time  afterwards  excepted  to  by  the 
\vard  or  his  representative,  or  other  party  interested,  it  shall  be 
incumbent  on  him  to  prove  or  show  the  falsity  or  injustice 
thereof,  unless  notice  on  his  behalf  shall  have  been  given,  at 
the  time  of  passing  the  account,  that  such  article  would  be 
expected  to  and  a  memorandum  of  that  notice  shall  have  been 
entered  on  record  or  desired  to  be  entered.''^ 

DECREE    ON   JOINT   ACCOUNTS. 

Liability  of  Executors. 

Where  two  or  more  executors  exhibit  a  joint  account  and 
procure  the  same  to  be  finall}  settled  and  allowed,  the  earlier 
doctrine  was  that  they  stood  jointly  lialsle  for  the  balance 
shown  by  the  account  to  be  in  their  hands.  In  the  case  of 
H'ey]naii  v.  Thompson r'  howe\'cr.  the  Court  of  Errors  and 
Appeals  held,  that  the  fact  that  executors  or  administrators 
have  filed  a  joint  final  account,  and  that  a  certain  balance  has 
been  adjudged  by  the  orphans'  court  to  be  due  thereon,  is  not 
per  se  conclusive  evidence  as  to  their  joint  liability  for  the 
amount  so  settled. "•'■     An  account  which  appears  on  its  face 

"•'Burnham  v.  Balling,   16  N.  J.  Fcnniniore,     3     N.     J.     Eq.,     292. 

Eq.,  144.  Schenck  v.  Sclienck.  16  N.  J.  Eq.. 

"^Orphans'  Court  .\ct.  sec.   124,  174-181.     Suydam   v.   Bastedo,  40 

as  amended  by  P.  L.  1905.  P-  299.  N.  J.  Eq.,  433.     Tehan  v.  Maloy, 

3  Comp.  Stat.,  p.  3856,  sec.  124.  45    N.    J.    Eq.,    68.      Weyman    v. 

3552  N.  J.  Eq.,  263.  Thompson,  50  N.  J.  Eq.,  8.     Hill 

^^For  the  authorities  as  to  tlio  v.  Hill,  79  N.  J.  Eq.,  521. 
earher  doctrine,  sec  Fennimore  v. 


650  Probate  Law  and  Practice. 

to  be  joint  may  be  sbown  to  l)e  separate  :  and  where  an  account 
is  stated  both  ways,  first  jointly  and  then  separately,  the  court 
may,  if  such  appears  to  have  been  the  intention  of  the  account- 
ants, treat  it  as  a  separate  account.-'' 

Where  each  of  several  executors  files  accounts  exhibiting 
the  sums  received  and  disbursed  by  himself,  they  will  not  be 
jointly  liable  f^  and  where  one  of  two  executors  refused  to 
take  any  part  in  the  management  of  the  estate,  and  so  notified 
the  beneficiaries,  and  an  account,  joint  in  form,  Init  in  reality 
the  account  of  one,  was  filed,  the  executor  not  participating 
in  the  management  of  the  estate  was  not  lialile  for  the  acts  of 
his  co-executor,  nor  for  the  property  which  came  into  his 
hands."'* 

Where  an, account  of  joint  executors  has  been  allowed  by  the 
orphans'  court,  the  matters  conclusively  adjudicated  by  such 
decree  are  the  receipt  of  assets  and  disbursements  in  behalf  of 
the  estate,  and  that  the  balance  is  in  the  hands  of  all,  or  one, 
of  them;  the  decree  is  not  an  adjudication  that  each  of  the 
executors  has  the  balance,  or  as  to  which  one  of  them  has  it.'*'^ 

OPENING  AND   SETTING   ASIDE   DECREES   ALLOWING 

ACCOUNTS. 

Decrees  on  Accounts  Other  Than  Guardians'  Intermediate. 

The  amendment  in  1905"  of  sections  124.  125  and  126  of 
the  Orphans'  Court  Act  of  1898"*-,  made  radical  changes  in  the 
effect  to  be  given  to  decrees  allowing  intermediate  accounts  of 
executors,  administrators  and  trustees. 

Section  124  of  the  act  of  1898  ])rovided  that  the  intermediate 
account  of  every  executor,  administrator,  guardian  or  trustee, 
after  the  same  had  been  audited  and  reported  for  settlement 
by  the  surrogate,  should  be  examined  by  the  court,  and  if 
found  to  be  fairly  stated,  should  be  entered  of  record.     If 

^"Fennimore  v.  Fennimore,  3  N.       Eq.,   76.     Affirmed  43   N.   J.   Eq., 
J.  Eq.,  292.     Tehan  v.  Maloy,  45       295. 
N.  J.  Eq.,  68.  40Van  Houten  v.  Stevenson,  74 

38Merselis  v.   Alerselis,  7  N.  J.      .N.  J.  Eq.,  i-io. 
Eq.,  557-  ^'P.    L.    1905,    p.   299,    3   Comp. 

^''English    v.    Newell,    42    N.   J.       vStat.,    3856    et    seq..    pp.    649   and 

647  supra,  and  666  infra. 
42P.    L.    1898,    p.    715- 


Accounting.  651 

further  provided  that  if  any  person  in  interest  thereafter 
attacked  any  item  of  such  account,  the  burden  was  upon  him 
to  prove  the  falsity  or  injustice  thereof,  unless  notice  on  his 
behalf  was  given  at  the  time  of  passing  said  account  that  such 
item  would  be  excepted  to. 

The  amendment  of  this  section  by  the  act  of  1905^-%  re- 
enacted  this  section  exactly  as  it  stood  in  the  act  of  1898. 
except  that  it  omitted  the  words,  "executor,  administrator  or 
trustee,"  thereby  limiting  the  operation  of  the  section  to  guard- 
ians' intermediate  accounts. 

Section  125  of  the  Orphans"  Court  Act  of  i898^\  provided 
that  the  court  to  which  the  piial  account  of  any  executor,  ad- 
ministrator, guardian  or  trustee  shall  be  reported  shall  examine 
the  account  and  siiall  decree  an  allowance  of  tne  accouni  a>> 
stated,  the  language  used  being  identical  with  that  used  in 
the  amendment  of  1905*^',  except  that  the  latter  omits  the 
word  "final"  and  adds  the  words,  "or  the  final  account  of 
any  guardian."  thereby  extending  its  provisions  to  all  accounts 
of  executors,  administrators  and  trustees,  and  the  final  ac- 
counts of  guardians,  thus  placing  all  accounts  of  executors, 
administrators  and  trustees,  whether  intermediate  or  final, 
upon  the  same  basis. 

Section  126  of  the  Revision  of  1898^'",  provided  that  "if 
any  person  interested  in  the  settlement  of  the  final  account  of 
any  executor,  administrator,  guardian,  or  trustee,  shall  by 
himself,  or  attorney,  appear  and  make  exception  to  said  ac- 
count," the  court  shall  proceed  to  hear  the  exception.  The 
amendment  of  1905*'.  re-enacted  this  act  in  the  identical  lan- 
guage used  by  the  Revision  of  1898,  except  that  it  omits  the 
word  "final,"  thereby  extending  the  pro\isions  of  this  act  to 
all  accounts,  whether  final  or  intermediate. 

It  will  be  observed  that  the  amendments  of  1905'  work  a 
radical  change  in  the  importance  of  intermediate  accounts. 
I'nder   the   scheme   of   the   Revision   of    i8c)8,   no   exceptions 

43 P.   L.    100.=;.   |>.   200.  3   Cotnp.  ^•'■P.    L.    1.^08.    i>.    715. 

Stat.,  3856,  p.  640,  supra.  '"P.    P.    1005.    p.    300.    3    Oomp. 

*4P.    L.    i8q8.    p.    715.  Stat..  3857,  p.  666.  infra. 

•'■'■P.    L.    I'Xi.T.    p.    ,300,    3    Comp. 
Stat.,  3856.  p.  647,  supra. 


652  Probate  Law  and  Practice;. 

could  be  filed  to  such  account,  and  they  were  not  allowed,  but 
merely  "entered  of  record''  and  were  subject  to  exception  upon 
the  filing  of  the  final  account,  while  the  legislative  scheme  as 
disclosed  by  the  amendments  of  1905  appears  to  be  that  all  ac- 
counts, whether  intermediate  or  final,  with  the  exception  of 
guardians'  intermediate  accounts,  stand  on  the  same  footing; 
they  are  subject  to  exception,  and  are  allowed  by  the  court. 
While  section  127  of  the  Orphans'  Court  Act  ^®  provides  that 
the  decree  of  the  court  on  a  final  account  shall  be  conclusive, 
except  for  fraud  or  mistake,  still  it  would  appear  to  be  clear 
that,  the  legislature  having  placed  all  accounts  of  executors, 
administrators  and  trustees,  whether  intermediate  or  final, 
upon  the  same  footing,  making  them  subject  to  exception  and 
requiring  that  they  be  allowed  by  the  court,  it  should  be  held 
that  the  provisions  of  this  section  are  applicable  to  all  such 
accounts,  and  that  they  can  only  be  attacked  upon  proof  of 
fraud  or  mistake. 

Jurisdiction  of  Orphans'  Court. 

As  has  been  seen  above,  a  decree  of  the  orphans'  court 
allowing  the  account  of  an  executor,  administrator  or  trustee, 
whether  intermediate  or  final,  and  the  final  account  of  a 
guardian,  can  only  be  opened  by  the  court  on  proof  to  its 
satisfaction  of  fraud  or  mistake  appearing  therein  ;*^  but  the 
meaning  of  the  words,  "to  the  satisfaction  of  the  court,''  is 
not  to  enable  the  orphans'  court  to  dispense  with  proof,  but  to 
indicate  to  it  that  the  proof  should  be  clear  and  satisfactory, 
and  that  it  should  not  in  a  doubtful  case  open  an  account.^" 

For  Fraud  or  Mistake. 

The  application,  in  case  of  alleged  fraud  or  mistake,  is  one 
addressed  to  the  discretion  of  the  court,  and  must  be  proved 
to  its  satisfaction  f^  but  the  mistake  which  will   justify   the 

**P.   L.    1898.    p.    715.    3    Comp.  J.  L.,  70.     Hyer  v.  Morehouse,  20 

Stat.,  3857,  p.  647,  supra.  N.  J.  L.,  125. 

49Baker's    Case,    61    N.    J.    Eq.,  siEngle  v.  Crombie,  21  N.  J.  L.. 

592.    Liddel  V.  McVickar,  11  N.  J.  614.    Reversing  Crombie  v.  Engle, 

L.,  44.  19  N.  J.  L.,  82.    In  re  Baker's  Es- 

s^Johnson  v.  Eicke,  12  N.  J.  L.,  tate,  61  N.  J.  Eq.,  592. 
316.     Stevenson  v.  Phillips,  21  N. 


Accounting.  653 

orphans'  court  in  opening  an  account  must  be  one  of  fact  or 
law.  not  a  mere  error  in  the  judgment  of  the  court  on  a  point 
resting  in  its  discretion. ^^ 

In  the  case  of  Runkle  v.  Gale^'-'\  a  guardian's  final  account, 
prepared  by  himself  and  assented  to  in  writing  by  the  ward  on 
coming  of  age,  had  been  allowed  by  the  court.  It  appeared 
bv.  a  memorandum  at  the  foot  of  the  account  that  commissions 
were  either  paid  by  the  ward  or  waived  by  the  guardian.  It 
subsequently  appeared  that  there  were  mistakes  in  the  account 
against  the  ward  :  one  in  the  footing  of  an  account,  and  the 
other  in  a  calculation  of  interest.  On  application  to  the  court 
to  open  the  account,  it  was  held  that,  the  mistakes  appearing 
upon  the  face  of  the  account,  the  decree  allowing  the  same 
should  be  opened,  and  the  account  re-stated ;  but  that  the  com- 
missions, having  been  waived,  could  not  be  charged  in  the  re- 
stated account,  and  that  counsel  fees  should  not  be  allowed 
accountant  on  such  re-statement. 

In  Morris's  Case''*,  persons  interested  in  an  estate  presented 
a  petition  to  the  orphans'  court  to  open  several  accounts  filed 
by  executors  and  allowed  by  the  court,  on  the  ground  that  the 
executors  had  not  charged  themsehes  with  specific  items  of 
money  or  property  of  the  decedent  for  which  they  should  have 
accounted,  and  an  order  requiring  the  executors  to  show  cause 
why  the  accounts  should  not  be  opened  was  made.  The  execu- 
tors answered  the  petition,  and  by  the  answer  admitted  that 
they  had  omitted  from  the  accounts,  by  inadvertence,  certain  of 
the  items  specified  in  the  petition,  but  set  up,  by  way  of  cross- 
petition,  that  they  had  omitted,  by  like  inadvertence,  certain 
disbursements  and  expenses  for  which  they  should  have  been 
allowed.  An  order  to  show  cause  was  issued  on  the  cross- 
l)etition,  and  both  orders  came  to  hearing  together.  The  court 
found  that  the  disbursements  omitted  or  proved  to  have  been 
omitted  were  at  least  equal  to  the  charges  proved  to  have  been 
omitted,  and  refused  to  open  the  accounts. 

In  Baker's  Case''^,  exceptions  were  filed  to  an  account  of 
trustees,  alleging  that  accountants  had  not  made  certain  i^ay- 

^^Stevenson  v.  Pliillips.  21  N.  J.  ^^65   N.  J.   Eq..  699. 

L.,  70,  556j     n     j     gq^    -Q2. 

537   N.  J.   Eq.,   loi. 


654  Probate  Law  and  Practice. 

ments  of  income  as  provided  for  in  testator's  will.  The  excep- 
tions were  withdrawn,  and  the  orphans'  court  made  its  order, 
directing  the  trustees  to  make  certain  payments  and  allowing 
the  account,  the  portion  of  the  decree  directing  the  payments 
to  be  made  not  being  within  the  jurisdiction  of  the  court. 
Subsequent  intermediate  accounts  were  filed  and  allowed  by 
the  court  upon  the  basis  of  the  directions  of  the  court  contained 
in  the  original  decree  ;  and  later  a  petition  was  presented  to 
the  court  to  open  all  of  the  decrees  on  the  ground  that  in  the 
first  decree,  wherein  the  court  directed  accountants  as  to  the 
manner  of  the  payment  of  the  income,  the  court  did  not  cor- 
rectly construe  testator's  will.  The  Prerogative  Court  held 
that  the  mistake  complained  of  as  to  the  jurisdiction  of  the 
court  and  the  effect  of  its  decree  was  a  mistake  of  law,  appar- 
ently shared  in  by  the  parties  and  the  court,  which  might  be 
reviewed  upon  appeal,  but  was  not  an  error  correctible  by  an 
application  to  open  the  decrees;  and  the  court  pointed  out  that 
upon  an}'  other  view  the  final  decree  of  the  orphans"  court 
would  possess  no  conclusive  character,  but  would  be  open  to 
reversal  by  any  subsequent  court  which  disagreed  with  the 
view  of  the  law  upon  which  the  decree  was  based. 

When  Improvidently  Entered. 

A  decree  not  made  in  compliance  with  the  statute  will  be 
set  aside.  Thus,  where  the  orphans'  court  allowed  a  final  ac- 
count, without  the  advertisement  of  the  notice  of  settlement 
prescribed  by  the  statute,  it  was  held  that  the  court  should  set 
aside  the  decree  on  the  ground  of  mistake  and  inadvertence 
in  entering  the  same.^''  But  when  a  decree  is  set  aside  as  im- 
providently allowed,  it  will  be  set  aside  in  its  entirety,  and 
the  parties  permitted  to  contest  every  item  of  it^" 

Matters  Resting  in  Discretion. 

The  orphans'  court  may  open  a  decree  to  review  a  matter 
resting  its  discretion,  e.  g.,  the  allowance  or  division  of  com- 
missions ;^*  but  a  decree  will  not  be  opened  on  the  application 

■^•"■Crithens  v.  Goodwin,  32  N.  J.  "'"Trimmer  v.   Adams,    18   N.   T. 

Eq.,  286.  Eq.,  505. 


Accounting.  655 

of  a  third  person,  on  allegations  of  fraud  or  mistake,  for  the 
purpose  of  re-adjusting  commissions  between  executors.^'"' 

Jurisdiction  of  Chancery. 

The  power  and  jurisdiction  of  the  Court  of  Chancery  over 
decrees  of  the  orphans'  court  on  final  settlement  of  accounts 
is  not  taken  away  or  abridged  by  section  127  of  the  Orphans' 
Court  Act.''*'  A  court  of  equity  exercises  the  power  of  setting 
aside  decrees  of  the  orphans"  court  for  fraud,  not  on  the 
grount  of  concurrent  jurisdiction,  but  l)y  reason  of  inherent 
authority  growing  out  of  the  principles  and  constitution  of  the 
court  itself  and  extending  over  judgments  of  courts  of  every 
description  f^  thus,  where  an  account  stated  that  certain 
assets  of  the  estate  were  sold,  and  it  was  alleged  that  they 
were  not  sold,  but  remained  in  the  hands  of  the  executor,  and 
were  worth  much  more  than  the  price  for  which  they  were 
alleged  to  have  been  sold,  the  Court  of  Chancery  entertained 
jurisdiction,  opened  the  account  and  disregarded  the  decree  of 
the  orphans'  court.''-  But  it- is  not  enough  that  the  orphans' 
court  may  haxe  erred  in  judgment  as  to  a  subject-matter  prop- 
erly before  it ;  it  must  have  been  led  into  error  by  some 
fraudulent  and  unconscientious  act  or  omission  of  the  party  to 
be  benefited,  or  the  Court  of  Chancery  can  take  no  cognizance 
of  the  matter.''^' 

Equity  will  not  interfere  where  the  claim  is  a  stale  one.  even 
in  the  case  of  the  account  of  a  guardian  which  was  settled 
during  the  minority  of  the  ward."* 

5sCulver  V.  Brown.  i6  N.  J.  Eq..  N.  J.  Eq..   137.     Tehan  v.  Maloy, 

533.     Stevenson  v.  Phillips.  21  N.  45    N.  J.    Eq.,   68.      Schweitzer   v. 

J.  L.,  70.  Bonn.  55  N.  J.  Eq.,   107.     Bird  v. 

s^Stevenson  v.  Phillips.  21  X.  J.  Hawkins.  58  N.  J.  Eq.,  229. 

L.,  70.  ''-Schweitzer  v.  Bonn.   55   N.  J. 

'•"See  p.  647,  supra.  Eq..   107. 

G'Black  V.  Whitall.  9  N.  J.  E(|..  '•■'Boulton  v.  Scott.  3  N.  J.  Eq.. 

572.     Vanmeter  v.  Jones.  3  N.  J.  231. 

Eq.,  520.    Boulton  v.  Scott,  3  N.  J.  64Wood  v.   Chetwood.  33  N.   J. 

Eq.,  231.    Frey  v.  Demarest.  16  N.  Eq.,  9. 

J.  Eq.,  236.     Search  v.  vSearch.  27  ' 

43 


656  Probate  Law  and  Practice. 

Decrees  on  Guardians'  Intermediate  Accounts. 

As  has  been  seen,  intermediate  accounts  of  guardians  are 
not  settled,  but  are  merely  ordered  to  be  recorded*'^,  if,  on 
examination,  they  prove  satisfactory  in  the  particulars  and  to 
the  extent  stated  in  the  statute.  They  are  still  open  to  attack 
after  they  have  been  recorded,  and  the  ward  may  examine  the 
guardian  as  to  every  item  of  each  account  filed  by  the  latter, 
if  he  sees  fit,  and  may  examine  his  vouchers  with  a  view  to 
showing  errors  in  the  accounts.  The  effect  of  the  order  to 
record  the  accounts  is  merely  to  shift  the  burden  of  proof  as 
to  any  items  not  objected  to  and  which  appeared  to  the  court 
to  be  correct.  The  act,  as  has  been  seen,  provides  that  mere 
notice,  on  behalf  of  the  ward,  at  the  time  of  passing  the  ac- 
count, that  an  item  will  be  excepted  to,  will,  if  a  memorandum 
of  the  notice  be  entered  on  the  record,  prevent  the  shifting  of 
the  burden  of  proof  as  to  that  item,  and  will  leave  it  upon  the 
guardian  up  to  the  time  of  passing  his  final  account.  This 
provision  was  designed  for  the  protection  of  the  guardian,  as 
well  as  for  that  of  the  ward,  to  give  him  the  advantage  of 
submitting  the  account  of  his  expenditures  to  a  judicial  exami- 
nation soon  after  making  the  disbursements,  and  to  give  him 
the  benefit  of  an  approval  thereof  to  the  extent  of  establish- 
ing its  correctness  prima  facie,  so  far  as  it  appears  to  be 
correct  and  indisputed.*''' 

If,  by  mistake  or  through  other  good  and  sufficient  cause 
shown  to  the  court,  an  omission  has  taken  place  in  an  account 
appearing  on  its  face  to  be  partial  and  not  final,  such  omission 
may  be  corrected  and  just  allowance  made  to  the  guardian 
in  his  subsequent  or  final  account.  It  is  true  that  the  court, 
when  called  upon  to  make  such  an  allowance,  may  and  ought  to 
require  strong  circumstances  to  excuse  and  explain  the  omis- 
sion ;  but,  the  circumstances  being  proved,  and  the  justness  of 
the  demand  and  the  reason  why  no  previous  claim  was  made 

^^Orphans'  Court  Act,  sec.   124,  65.     Liddel  v.  McVickar,  ir  N.  J. 

p.  649,  supra.  L.,  44.    Jackson  v.  Reynolds,  39  N. 

66Davis  V.  Combs,  38  N.  J.  Eq.,  J.  Eq.,  313.     In  re  Baker's  Estate, 

473.     Affirmed   39  N.  J.  Eq.,  336.  61  N.  J.  Eq.,  592. 
Keeney  v.  Henning.  64  N.  J.  Eq., 


Accounting.  657 

liaving  been  sufficiently  shown,  the  court  is  not  restrained  by 
any  rule  of  law  or  equity,  or  by  any  sound  principle  relative  to 
matters  of  account,  from  introducing  and  allowing  the  omitted 
items ;  on  the  contrary,  it  is  bound  to  do  so.  Even  a  final 
account  is  subject  to  correction  when  mistake  is  proved  to  the 
satisfaction  of  the  orphans'  court ;'''  and  the  excessiveness  of 
commissions  allowed  to  a  guardian  on  an  intermediate  account 
can  be  examined  by  exceptions  to  one  of  his  subsequent 
accounts.*^* 

It  has  been  held  that  the  jurisdiction  of  the  orphans'  court 
in  allowing  a  guardian's  intermediate  account  is  confined  to 
receipts  and  such  actual  disbursements  as  are  made  in  cash, 
and  does  not  include  charges  by  a  guardian  for  the  support  of 
her  ward,  who  is  also  her  child;  and  hence  the  account  of  such 
a  guardian,  passed  by  the  orphans"  court,  will  not  be  regarded 
as  prima  facie  correct  in  such  particulars."'^  So  the  settlement 
of  a  guardian's  intermediate  account  in  the  orphans'  court  will 
not  be  presumed  to  include  damages  sustained  by  the  infant's 
estate  through  the  fraud  or  misconduct  of  the  guardian. "° 

The  weight  and  strength  of  the  presumption  arising  imder 
the  statute  in  favor  of  the  guardian's  account  passed  by  the 
orphans'  court  will  depend  upon  the  fairness  and  propriety 
of  the  account  itself.'^ 

PRACTICE  ON  APPLICATION  TO  OPEN  DECREE. 

Application. 

A  party  seeking  to  open  an  account  should  primarily,  and 
before  any  rule  opening  the  account  or  calling  on  the  other 
party  to  show  cause  why  it  should  not  be  opened  is  made, 
point  out  specifically  wherein  the  fraud  or  mistake  complained 

^"Liddel  V.  McVickar.   ii   N.  J.  "^-'Keeney  v.   Henning.  64  N.  J. 

L.,  44.     Jackson   v.   Reynolds,   39  Eq.,  65.     See  also  "Allowances  to 

N.  J.  Eq.,  313.     Dey  v.  Codman,  Accountants — In    (luardians'    Ac- 

39   N.   J.   Eq.,   258.     In    re    N.    J.  counts,"  p.  641,  supra. 

Trust  &  Safe  Deposit  Co.,  73  N.  '"Ordinary  v.  Dean.  44  N.  J.  L., 

J.  Eq.,  628.  64. 

•'^Liddel  V.  McVickar,   11   N.  J.  "^Keeney  v.   Henninc;,  64   N.    1. 

L.,  44.     Jackson    v.   Reynolds,   39  I'.q..  65. 

X.   J.   Eq..   313. 


658  Probate  Law  and  Practice. 

of  consists,  and  should  lay  such  evidence  of  it  before  the  court 
as  to  make  out  at  least  a  prima  facie  case ;  and  if  the  court 
thinks  proper,  upon  such  complaint,  to  give  the  parties  a  hear- 
ing, the  burden  of  proof  must  lie  entirely  on  the  complaining 
party,  and  the  account  and  decree  must  stand  until  overthrown 
by  evidence  of  fraud  or  mistake.'"' 

The  application  should  be  by  verified  petition  addressed  to 
the  orphans'  court,  which  should  set  forth  fully  the  fraud  or 
mistake  relied  upon  to  confer  jurisdiction  upon  the  court  to 
open  the  decree.  The  petition  should  also  give  the  names  of  all 
persons  in  interest. 

If  the  petition  discloses  prima  facie  grounds  for  opening 
the  decree,  the  court  will  allow  a  rule  to  show  cause  directed 
to  all  parties  in  interest,  which  rule  may  direct  the  manner  in 
which  it  shall  be  served.''' 

Upon  the  return  of  the  rule  to  show  cause,  the  issue  is 
whether  or  not  the  decree  shall  be  opened.  If  the  court  decides 
this  question  in  the  affirmative,  it  will  make  its  order  opening 
the  decree  and  giving  the  petitioner  an  opportunity  to  be  heard 
on  the  merits  of  his  ol:)jections  to  the  account. 

Practice  on  Opening  Decrees  on  Intermediate  Accounts. 

The  better  practice  in  dealing  with  an  intermediate  account, 
in  which  an  error  is  alleged  to  e.xist,  is  to  attack  it  directly  by 
a  rule  to  set  it  aside  in  respect  to  the  matter  complained  of. 
This  has  the  advantage  of  directness,  and  of  bringing  into 
court  parties  who  may  be  interested  in  the  intermediate,  but 
have  no  interest  in  the  final  account,  such,  for  instance,  as 
deceased  or  discharged  executors,  or  former  trustees  who  have 
settled  their  accounts  as  joint  trustees  with  those  still  acting."^ 

When  Application  Must  be  Made. 

As  the  statute  does  not  s])ecify  the  time  within  which  an 
account  may  be  opened  for  fraud  or  mistake,  it  must  depend 
upon  the  sound  discretion  of  the  court  and  the  circumstances 

'-Hyer  v.  Morehouse.  20  N.  J.  '^sOrphans'  Court  Act.  sec.   170. 

L..  IJ5.  Engle  v.  Cromhie,  21  N.  J.  p.  39.  supra. 

L..  614,  but  see  contra.     Trimmer  ^*Jackson  v.  Reynolds,  39  N.  J. 

V.  Adams,  18  N.  J.  Eq.,  505.  Eq..  313. 


Accounting.  659 

of  each  particular  case,  considered  with  reference  to  the 
nature  and  extent  of  the  account,  the  condition  and  situation 
of  the  parties  and  the  character  and  evidence  of  tlie  alleged 
fraud  or  mistake.'' 

Notice  of  Application. 

In  proceedings  for  the  re-settlenieni  of  the  account  of  an 
executor,  administrator,  guardian  or  trustee,  at  least  five  days' 
notice  of  the  intended  application  shall  be  given  to  such  execu- 
tor, administrator,  guardian  or  trustee.'''  The  better  ])ractice 
is  to  obtain  a  rule  to  show  cause  why  the  decree  should  not  be 
opened,  which  should  be  duly  served  upon  the  accountant.'' 

Effect  of  Opening  Decree. 

\\  here  a  decree  is  opened  to  correct  alleged  mistakes  in  any 
l)articular  item  or  items,  the  whole  account  is  not  thereby 
thrown  open  for  review,  but  the  re-settlement  should  be  con- 
fined to  correcting  the  items  in  which  fraud  or  mistake  is 
l)roved,  and  such  parts  of  the  account  as  are  affected  by  the 
changes  so  made ;  the  residue  of  the  account  should  be  allowed 
to  stand  as  settled.'"^  It  is  otherwise,  however,  where  the 
decree  is  set  aside  as  improvidently  entered.'*' 

Method  of  Re-Stating  Account. 

if  fraud  or  mistake  is  established  tcj  the  satisfaction  of  the 
court,  the  original  account  should  not  be  mutilated' or  set  aside, 
but  a  new  account  stated,  making  the  footings  of  the  old  one 
the  basis  of  such  new  account,  adding  thereto  or  deducting 
therefrom  such  sums  as  the  discovery  of  the  fraud  or  mistake 
shows  should  have  ])een  charged  or  credited  to  the  accfnmtant, 
thus  showing  u]:)on  the  face  of  the  account  the  i)aniculars  in 

^^Hyer  v.   Morehouse,  20  N.  J.  Hycr  v.   Morehouse,  20  N.  J.   L., 

1,.,  125.  125.    Trimmer  v.  Adams,  18  N.  J. 

"•'Orphans'  Court  Rule  22.  Eq.,  505.     Morris's  Case,  65  N.  J. 

''See     ".Application,"     p.     657.  Eq.,  699. 

supra.  "''Trimmer   v.  Adams,   18  N.  J. 

"Stevenson  v.  Phillips.  8  N.  J.  Eq.,  505. 
Eq.,  593-     S.  C.  15  N.  J.  Eq.,  236. 


66o  Probate  Law  and  Practice. 

which  the  former  account  had  been  defectively  or  improperly 
stated.^° 

Appeal. 

An  order  refusing  to  set  aside  a  decree  allowing  the  final 
settlement  of  an  administrator's  account  is  appealable;  and 
where  no  notice  of  such  settlement  was  given,  the  decree  will 
be  set  aside.®^ 

EXCEPTIONS    TO    ACCOUNT. 

In  General. 

Any  person  in  interest  desiring  to  object  to  an  account,  or 
to  any  item  therein,  may  do  so  by  filing  exceptions  thereto  at 
any  time  before  the  account  is  allowed  by  the  court. ^- 

Jurisdiction  of  Orphans'  Court. 

The  statute  invests  the  orphans'  court  with  full  power  and 
authority  to  hear  and  determine  all  controversies  respecting  the^ 
allowance  of  accounts  of  executors,  administrators,  guardians 
and  trustees  under  wills,  and  authorizes  it  to  issue  process 
to  compel  such  persons  to  account  for  the  estates  in  their  hands. 
The  court  may  also  compel  obedience  to  its  process,  orders 
and  sentences  by  imprisonment  or  distress.  Its  orders  or 
decrees,  whereby  a  sum  of  money  is  ordered  to  be  paid  by  one 
party  to  another,  being  properly  recorded,  have  the  same  lien 
and  priority  as  judgments  of  the  circuit  court,  and  like  exe- 
cutions may  issue  thereon.  It  is  apparent  from  the  language 
of  the  statute  that  it  was  the  intent  of  the  legislature  in  con- 
ferring this  jurisdiction  upon  the  orphans'  court  to  provide 
an  inexpensive  and  summary  process  for  the  settlement  and 
adjustment  of  the  accounts  of  executors,  administrators, 
guardians  and  trustees  under  wills,  and  to  remove  the  neces- 
sity of  a  resort  to  the  Court  of  Chancery  for  that  purpose. 
In  other  words,  for  all  purposes  of  settling  accounts  between 
executors,  administrators,  guardians  and  trustees  under  wills 

soHyer  v.  Morehouse,  20  N.  J.  of  appeals,   see   "Appeals,"   p.  80. 

L.,  125.  supra. 

siGithens  v.  Goodwin,  32  N.  J.  ^^Orphans'  Court  Act.  sec.   126, 

Eq.,  286.     On  the  general  subject  p.  666,  infra. 


Exceptions  to  Accounts.  66i 

and  the  persons  entitled  to  the  estate  in  their  hands,  the  or- 
phans' court  is  invested  with  ah  the  jurisdiction  which  had 
before  been  exercised  by  the  Court  of  Chancery,  to  be  exer- 
cised, however,  in  the  cases  and  in  the  manner  prescribed  by 
statute ;  and  while  the  orphans'  court  can  only  exercise  the 
jurisdiction  expressly  conferred  upon  it,  the  statute,  being 
remedial  and  for  the  advancement  of  justice,  should  receive 
a  liberal  construction,  such  as  will  give  to  it  the  force  and 
efficiency  intended  by  the  legislature.*" 

Thus,  in  Pyatt  v.  Pyatf*,  it  was  held  that  the  powers  of 
the  court  are  sufficiently  broad  to  justify  it  in  allowing  a 
guardian  credit  for  payments  for  the  support  of  his  ward  after 
the  latter 's  majority. 

In  Jroolsey's  Case^'%  it  was  held  that  the  orphans'  court 
might  apply  the  equitable  rule  of  estoppel,  in  a  proceeding 
founded  upon  exceptions  to  an  executor's  account ;  and  the 
same  rule  was  applied  in  Hill  z\  HilP*^,  in  which  it  was  held 
that  it  was  within  the  jurisdiction  of  the  orphans'  court,  upon 
exceptions  to  an  account,  to  surcharge  an  executor,  adminis- 
trator, guardian  or  trustee,  upon  the  ground  of  negligence.®' 
So  the  orphans'  court  has  power  to  determine  whether  except- 
ants, who  claim  to  be  creditors  of  the  estate,  are  in  fact  credi- 
tors, and  as  such  interested  in  the  settlement  of  the  estate.®* 
But  the  court,  on  the  hearing  of  an  exception  to  the  final 
account  of  an  administrator,  based  on  the  failure  of  the  ad- 
ministrator to  perform  his  duty,  in  that  he  consented  to  ex- 
travagant allowances  to  a  receiver  and  his  counsel,  cannot 
review  the  action  of  the  Court  of  Chancery  in  determining 
what  was  a  reasonable  compensation  to  the  receiver  and  his 
counsel,  and  it  must  be  assumed  that  the  allowances  were  made 
after  a  consideration  of  the  work  done  by  them.®" 

s^Pyatt  V.   Pyatt,  46  N.  J.  Eq..  ^^But    see    Duncan    v.    Davison, 

285-288.    Dunham  v.  Marsh.  52  N.  40  N.  J.  Eq..  535.  and  Suydam  v. 

J.  Rq.,  256.    Affirmed  ib.  831.    Hill  Bastedo.  40  N.  J.  Eq.,  433- 

V.  Hill,  79  N.  J.  Eq..  521.    Wool-  sspoulson  v.  National  Bank,  33 

sey  V.  Woolsey,  72  N.  J.  Eq.,  898.  N.  J.  Eq..  250.    .A.ffirnied  ib.  618. 

8*46  N.  J.  Eq..  285-288.  «"Tn  re  N.  J.  Trust  &c.  Co.,  73 

8568  N.  J.  Eq.,  763.  N.  J.  Eq.,  628. 

8C79   N.   J.   Eq.,   521. 


662  Probate  Law  and  Practice. 

It  is,  as  has  been  seen,  established  that  the  jurisdiction  of 
the  orphans'  court  over  the  accounts  of  trustees  under  wills 
is  as  ample  as  that  of  the  Court  of  Chancery"",  and  that  the 
accounts  of  an  executor,  administrator,  guardian  or  trustee 
must  be  stated  and  settled  on  equitable  principles  according 
to  the  truth  and  substance  of  the  matters  in  controversy  and 
without  regard  to  matter  of  form  ;''^  and  in  all  cases  where  a 
decree  in  equity  would  be  binding  upon  persons  not  in  esse 
at  the  time,  or  upon  persons  whose  interests  had  not  yet  arisen, 
the  decree  of  the  orphans'  court  will  be  equally  binding."-  It 
is,  however,  well  settled  that  the  orphans'  court  has  no  juris- 
diction to  declare  a  trust. ^^ 

In  the  exercise  of  its  powers  to  e.xamine  and  adjudicate 
upon  accounts  of  executors,  administrators,  guardians  and 
trustees,  the  orphans'  court  is  invested  with  all  the  incidental 
powers  necessary  to  effectuate  that  jurisdiction.''^  Thus, 
where  the  judicial  action  of  the  orphans'  court,  in  settling  and 
allowing  the  accounts  of  trustees,  involves  the  question  of  their 
duty  under  a  will  creating  the  trust,  that  court  may  construe 
the  will  on  the  subject  of  such  duty;  and  when  the  court  has 
made  its  construction  of  the  will  in  such  respect  the  basis  of  a 
decree  allowing  the  trustees'  account,  the  decree  may  not  be 
opened  by  the  court  because  subsequent  judges  have  a  variant 
view  as  to  the  true  construction  of  the  will.^^  But  the  orphans' 
court  has  no  power  upon  exceptions  to  an  account  to  reform 
or  set  aside  releases  which  are  produced  as  vouchers  for  dis- 
bursements for  which  allowance  is  prayed  or  to  determine  their 
force.  In  such  case  the  jurisdiction  of  the  court  is  limited  to 
ascertaining  the  amount  for  which  the  trustee  should  be  liable 
leaving  the  affect  to  be  given  to  the  releases  to  be  settled  when 

90Pyatt   v.   Pyatt,   46  N.   J.   Eq.,  ^-In    re    O'Callaghan.    64    N.    J. 

285-288.    Dunham  v.  Marsh,  52  N.  Eq.,  287.     In  re  Lippincott,  68  N. 

J.  Eq.,  256-261.     Affirmed  ib.,  831.  J.  Eq.,  578.     Koch  v.  Feick,  81  N. 

Hill  V.  Hill,  79  N.  J.  Eq.,  521.  J.  Eq.,  120. 

«iHiIl  V.  Hill,  79  N.  J.  Eq.,  521.  »*Pyatt  v.   Pyatt,  46  N.  J.  Eq., 

9-Woolsey    v.    Woolsey,    78    N.  285-288.    Dunham  v.  Marsh,  52  N. 

T.    Eq.,    517.      Affirmed    ib.,    579.  J.  Eq.,  256-261.     Affirmed  ib.,  831. 

Shearman   v.    Cameron,   78   N.   J.  Hill  v.  Hill,  79  N.  J.  Eq.,  521. 

Eq.,  532.  95Baker's    Case,    61    N.    J.    Eq.. 

592. 


Exceptions  to  Accounts.  663 

payment  of  the  trust  fund,  as  determined  by  the  aceounting, 
is  sought  to  be  enforeed.'''"' 

Who  May  Except. 

Any  person  appearing  to  be  interested  in  the  disposition  of 
the  property  of  a  decedent  may  hie  exceptions  to  the  account 
of  the  executor  or  administrator  of  the  deceased.'"^  So  \yhere 
a  testator's  \yill  does  not  dispose  of  aU  of  his  property,  his 
iiext  of  kin,  who  take  notliing  under  the  will,  have  a  standing 
to  except  to  the  executor's  account,  so  far  as  such  excei)tions,. 
if  allowed,  will  affect  the  portion  of  testator's  estate  as  to 
which  he  died  intestate :  and  upon  a  motion  to  strike  out  such 
exceptions  on  the  ground  that  exceptant  had  no  interest  in  the 
controyersy,  the  orphans'  court  has  jurisdiction  to  construe 
the  will  for  the  purpose  of  ascertaining  whether  exceptants 
haye  any  standing  to  except  to  such  accotnit.''' 

A  creditor  of  an  estate  is  a  "person  interested  in  the  settle- 
ment of  the  account,"  and  may  except  thereto  f^  and  a  creditor 
barred  by  a  decree  barring  creditors,  who  has  brought  him- 
self within  the  terms  of  section  80  of  the  Orphans'  Court  Act"'' 
by  presenting  his  petition  for  relief  to  that  court  may  lawfully 
file  exceptions  to  the  final  account  of  the  administrator,  which, 
if,  established,  would  enhance  the  amount  of  the  assets  in  the 
latter's  hands. ^""  The  same  rule  applies  to  exceptions  to  ac- 
counts of  removed  or  discharged  executors  as  in  other  cases. ^ 

Form  of  Exceptions. 

When  exceptions  are  made  to  the  account  of  an  executor,  ad- 
ministrator, guardian  or  trustee,  such  exceptions  shall  be  in 
writing;  and  where  the  objections  are  to  disbursements,  they 
-hall  state  specifically  the  item  or  items  and  particulars  ob- 

"•^"Truitt    V.   Lawrence,    94   Atl.  ^spouJson  v.  National  Bank.  33 

I^ep..  575.  N.  J.  Eq..  250.     Affirmed  ib.,  618. 

•'cPoulson  V.  National  Bank.  33  ""Page  582.  supra. 

N.  J.  Eq.,  618.     Alexander  v.  Ba-  '""Equital)le  Life  Assurance  So- 

cot,  41  N.  J.  Eq.,  511.*  Dunham  V.  ciety    v.    Chesley,    63    N.    J.    Eq., 

Marsh,  52  N.  J.  Eq..  83r.  2r().     Reversed  64  N.  J.  Eq.,  348. 

''^Dunham   v.    Marsh,   52    N.    J.  Jordan  v.  Logue,  76  N.  J.  Eq.,  471. 

Eq..  256.     .Affirmed  ib.,  831.  '  Poulson   v.   National   Bank,  33 

N.  J.  Eq..  618. 


664  Probate  Law  and  Practice. 

jected  to,  and  the  reasons  therefor.-'  The  object  of  an  excep- 
tion is  to  specify  the  objections  which  the  exceptant  makes 
either  to  the  whole  account,  or  to  specified  parts  thereof,  with 
some  statement  of  the  grounds  on  which  the  exception  is  based. 
Exceptions  to  the  whole  account  which  state  no  reasons  for 
criticism,  specify  no  items  of  which  the  exceptant  complains, 
and  no  particulars  wherein  the  account  is  alleged  to  be  inac- 
curate, will  not  be  entertained." 

Where  a  party  excepts  to  an  account  which  contains  a  num- 
ber of  items  of  charges,  he  must  specify  the  specific  items 
of  which  he  complains  :  he  cannot  by  a  general  exception  im- 
pose upon  the  court  the  burden  of  examining  every  item  in 
the  account  to  detect  the  error.*  So  where  allowance  is  asked 
in  an  account  for  the  payment  of  a  judgment,  and  exceptants 
desire  to  object  to  its  allowance  because  the  accountant  fraud- 
ulently and  collusively  sufi^ered  the  judgment  to  be  procured, 
their  exception  should  specify  facts  from  which  fraud  or 
collusion  may  be  inferred.^ 

An  exception  must  either  insist  upon  a  charge,  or  object 
to  an  item  of  discharge  which  the  accountants  seek.  An  excep- 
tion cannot  merely  object  that  a  duty  remains  unperformed, 
and  impliedly  seek  to  enforce  the  performance  of  that  duty 
through  the  payment  of  money.  Such  an  objection,  although 
called  an  exception  to  the  account,  is  in  reality  a  demand  that 
the  executors  may  be  required  to  do  their  duty  by  paying  a 
sdm  of  money  to  the  exceptants.  Thus,  a  creditor  may  not, 
by  exception  to  the  executor's  account,  demand  the  payment  of 
his  claim  and  seek  to  have  its  validity  established.® 

Where  no  exception  was  taken  in  the  orphans'  court  to  an 
executor's  account  as  to  a  certain  item,  it  cannot  be  considered 
on  appeal." 

^Orphans'  Court  Rule  20.  -^HurllHit    v.    Hutton,    44    N.    J. 

sMerritt  v.  Jordan,  65  N.  J.  Eq.,  Eq..  302. 

772.  sCarey  v.  Monroe,  54  N.  J.  Eq.. 

^Holcombe  v.  Holcombe,   11  N.  63Z                 • 

J.  Eq.,  281.    Tucker  v.  Tucker,  28  "In  re  Ramsey's  Estate.  66  Atl. 

N.  J.   Eq.,   223.     Orphans'    Court  Rep.,  410. 
Rule  20. 


Exceptions  to  xA.ccounts.  665 

Motion  to  Strike  Out  Exceptions. 

If  accountant  conceives  that  exceptant  has  no  standing  to 
except  to  his  account  or  that  the  exceptions  have  no  merit,  or 
if  he  desires  to  raise  any  other  question  in  regard  to  the  ex- 
ceptions, he  may  move,  on  notice  to  the  exceptant,  to  strike 
them  out;  and  upon  such  a  notice  the  court  has  jurisdiction  to 
construe  the  will  for  the  purpose  of  ascertaining  whether  ex- 
ceptant has  any  standing  to  except  to  such  account.*'  So  where 
exceptions  allege  that  exceptant  is  the  next  of  kin  of  deceased, 
and  accountant  moves  to  strike  out  the  exceptions  on  the 
ground  that  exceptant  is  not  such  an  interested  person  as  the 
statute  contemplates,  without  demanding  the  substantiation  of 
this  allegation  by  proof,  such  a  motion,  for  its  purposes  under 
the  circumstances,  must  be  treated  like  a  demurrer,  as  admit- 
ting the  truth  of  the  allegation  touching  the  exceptant's  kin- 
ship.^    . 

HEARING  ON  EXCEPTIONS. 

Court  May  Hear  or  Refer  Matter. 

If  any  person  interested  in  the  settlement  of  the  account  of 
any  executor,  administrator,  guardian  or  trustee  shall,  by  him- 
self or  attorney,  appear  and  make  exceptions  to  said  account, 
the  court  shall  either  proceed  to  hear  the  proofs  and  allegations, 
at  such  time  as  they  may  appoint,  and  correct  any  mistake  or 
errors  that  may  happen  in  the  account  as  reported,  or  refer 
the  same  to  the  surrogate,  an  auditor  or  master  in  chancery, 
to  examine  and  re-state  the  account,  after  hearing  parties  and 
witnesses,  and  make  report  to  the  court  for  confirmation  and 
allowance ;  the  court  to  whom  any  account  is  reported  for  an 
allowance  as  aforesaid,  or  the  surrogate,  auditor  or  master  to 
whom  an  account  is  referred  as  aforesaid,  at  the  instance  of 
any  party  interested  in  the  same,  or  by  their  own  proper  au- 
thority, may  examine  any  executor,  administrator,  guardian  or 
trustee  exhibiting  such  account,  on  oath  or  affirmation,  touch- 

^Dunhain    v.    Marsh.    52    N.    J.        ^Dunham    v.    Marsh,    52    N.    J. 
F.q.,  256.    Affrmed  ib.,  831.  Eq.,  256.    Affirmed  ib.,  831. 


666  Probate  Law  and  Practice. 

mg  the  truth   and   fairness  of   the  same  or  any  part  or  item 
thereof/" 

Under  the  general  ])o\vers  conferred  upon  the  orphans'  court 
by  the  Act  of  1907,  that  court  has  power  to  refer  exceptions 
to  an  account  to  a  master,  to  hear  the  same  and  determine 
what  order  or  decree  should  he  made  therein;''  l:)ut  the 
power  to  refer  an  account  to  a  master,  conferred  by  the 
act,  is  limited  to  cases  where  notice  has  been  duly  given,  an 
account  exhibited,  and  exceptions  to  the  account  made  b\ 
persons  interested,  in  which  case  the  court  may  hear  the  con- 
test, or  refer  it  to  the  surrogate,  an  auditor  or  a  master,  to  hear 
the  parties  and  their  witnesses  and  thereupon  re-state  the  ac- 
count or  to  hear  the  exceptions  and  determine  what  order  or 
decree  should  be  made  therein.  The  court  has  no  power  to 
refer  to  a  master  the  matter  of  stating  the  accounts  of  an 
executor  or  until  he  has  filed  his  account,  and  exception  has 
been  made  thereto  by  some  interested  party. ^-. 

Examination  of  Accpuntant. 

This  summary  mode  of  inquiring  into  the  conduct  of  execu- 
tors, administrators,  guardians  and  trustees,  in  the  manage- 
ment of  the  estate  entrusted  to  them,  is  intended  to  be  a  sub- 
stitute for  the  more  expensive  remedy  by  bill  of  discovery 
in  chancery. ^^  The  practice  is  for  the  exceptant  to  first  call 
the  accountant  to  the  stand  and  examine  him  as  to  the  matters 
involved  in  the  exceptions.  In  such  examination,  much  the 
same  latitude  is  allowed  exceptant  as  is  allowed  upon  cross- 
examination  in  ordinary  cases.  The  accountant  is  in  no  sense 
the  exceptant's  witness,  but  is  called  upon  to  make  full  dis- 
covery as  to  his  acts  and  doings  in  relation  to  such  matters. 
Thus,  an  administrator  entitled  to  a  distributive  share  of  the 
personal  estate  of  his  intestate  may  be  so  examined  for  the 

^"Orphans'  Court  Act,   sec.   126,  ^-Smith  v.   Smith,  85  Atl.  Rep., 

as  amended  by  P.  L.  1905,  p.  300.  226. 

3  Comp.  Stat.,  p.  3857,  sec.  126.  i^Davison  v.  Davison,  17  N.  J. 

lip.  L.    1907.   p.  293.     3  Comp.  L.,  169. 
Stat.,  p.  3815,  sees.  9-a,  9-I1  and  9-c. 


Exceptions  to  Accounts.  667 

purpose  of  showing  that  he  or  liis  co-administrator  was  in- 
debted to  the  intestate.'* 

xAfter  the  examination  of  accountant  by  exceptant  has  been 
completed,  counsel  for  accountant  is  permitted  to  cross- 
examine  him  upon  the  testimony  given,  in  what  would  ordi- 
narily be  called  his  direct  examination.  After  the  examination 
and  cross-examination  of  accountant  has  been  completed,  ex- 
ceptant is  permitted  to  produce  such  other  evidence  as  he  may 
have  in  support  of  his  exceptions,  after  which  the  accountant 
is  permitted  to  produce  evidence  to  rebut  the  case  established  bv 
the  exceptant. 

EVIDENCE. 

In  General. 

The  general  rules  of  evidence  are  ordinarily  applied  in 
determining  whether  the  evidence  offered  in  a  proceeding  on 
exceptions  to  an  account  is  admissible ;  but  it  is  settled  that 
under  section  4  of  the  Evidence  Act,'^  which  excludes  the 
testimony  of  any  party  to  tlie  action  as  to  any  transaction  with, 
or  statement  by,  the  decedent,  unless  the  representative  offers 
himself  as  a  witness  in  his  own  behalf  and  testifies  to  trans- 
actions with,  or  statements  by,  his  decedent,  an  executor,  ad- 
ministrator or  trustee  whose  account  has  been  excepted  to, 
and  who  offers  himself  as  a  witness  in  his  own  behalf,  will 
not  be  permitted  to  testify  as  to  transactions  between  himself 
and  his  decedent.  The  words  of  the  statute  nowhere  prohibit  a 
representative  from  tendering  himself  as  a  witness  to  the 
fullest  extent ;  but  the  executor,  seeking  to  show  his  dealings 
with  decedent  in  his  lifetime,  is  in  this  case,  not  called  bv  any 
party. ^^^  So  where  a  devisee  and  legatee  is  also  an  executor, 
and.  in  his  former  capacity,  excepts  to  his  co-executor's  account, 

'^Davison  v.   Davison.   17  N.  J.  Sherman  v.  Lanier.  39  N.  J.  Eq., 

L.,  169.     Smith  V.  Burnet,  34  N.  J.  249-253.     Carlin  v.  Carlin.  64  Atl. 

Eq.,   219-221.      .\ffirmed    35    N.    T.  Rep.,    1018.     Tn  re  Riker's  Estate. 

Eq.,  315.  94  Atl.  Rep.  622.  the  testimony  of 

^^P.   L.   1900.   p.   363.     2   Comp.  the    wife    of    tlie    personal    repre- 

Stat.,  p.  2218,  sec.  4.  sentative  as   to   transactions   with 

i^Smith  V.  P.urnct.  34  X.  J.  K(i..  decedent    is    however    competent 

219.     Affirmed   35   X.  J.   T'.(|..  314.  In    re   Riker's   Estate,   supra. 


668  Probate  Law  and  Practice. 

his  testifying  does  not  remove  the  statutory  bar  that  prevents 
his  co-executor  from  being  a  witness  in  his  own  behalf  to 
estabhsh  his  individual  claim  against  the  estate  at  the  hearing 
of  the  exceptions  to  his  account. ^^  But  an  administratrix  is 
a  competent  witness  on  the  question  whether  a  claim  for  which 
she  asks  allowance  has  been  paid,  and  her  testimony,  in  the 
absence  of  contradiction,  may  be  relied  upon  by  the  court. ^* 

Presumptions. 

Executors,  administrators,  guardians  and  trustees  are  bound 
to  keep  clear  and  accurate  accounts  of  their  management  of 
the  estate,  and  in  case  doubts  or  obscurities  arise  from  their 
failure  to  do  so,  they  should  be  resolved  against  the  account- 
ant;  if  he  fails  to  keep  proper  accounts,  or  if  his  accounts 
become  lost  through  his  carelessness,  he  should  be  required  to 
■bear  any  injurious  consequences  arising  therefrom.  The  law 
imposes  the  duty  of  keeping  accounts  on  executors  and  adminis- 
trators for  the  protection  of  the  beneficiaries  of  the  estate,  and 
they  will  not  be  permitted  to  defeat  this  salutary  purpose  by 
their  carelessness.^^  So  where  an  administrator  adopted  loose 
methods  in  dealing  with  the  affairs  of  his  estate,  and  delayed 
his  accounting  for  more  than  fifteen  years  after  the  time  when 
it  ought  to  have  been  filed,  doubts  arising  upon  the  evidence 
taken  on  exceptions  to  his  account  should  be  resolved  against 
him.-**  So  where  an  executor  has  purchased  lands  sold  by  him 
under  order  of  the  court  to  pay  debts,  and  is  called  to  account 
for  the  value  of  the  property,  all  doubts  as  to  its  true  value 
should  be  resolved  against  him.-^  And  so  where  a  trustee  has 
so  intermingled  the  trust  property  with  his  own  that  it  is  im- 
possible to  ascertain  how  much  of  certain  charges,  such  as 
taxes,  levied  upon  the  whole  property,  should  he  borne  by  the 

I'Tichenor    v.    Tichenor,   43    N.  216.      Welsh   v.    Brown,   50   N.   J. 

J.  Eq.,  163.    Affirmed  45  N.  J.  Eq.,  Eq.,  387.     Hatfield  v.   Debaud,  54 

303.  N.  J.   Eq.,   371.     Smith   v.   Robin- 

isFrey's  Case,  73  N.  J.  Eq.,  346.  son,  83  N.  J.  Eq.,  384- 

i»Downie  v.  Knowles,  37  N.  J.  ^ofjug^o^  y    j^q^^  -g  j^    j_  gq^ 

Eq.,   513-519.     Affirmed   39   N.   J.  215.     Reversed  79  N.  J.  Eq.,  220. 

Eq.,  594.     In  re  Gaston  Trust,  35  -i  Huston    v.    Cassidy,    14   N.   J. 

N.  J.   Eq.,   60.     Affirmed   ib.,   348.  Eq.,  320. 

Dufford  V.    Smith,  46   N.  J.   Eq., 


Exceptions  to  Accounts.  66g 

trust  estate,  he  will  not  he  entitled  to  any  allowances  with  re- 
spect to  such  charges.-' 

Presumptions  Arising  from  Payment. 

The  fact  that  a  bill  has  been  paid  by  the  executor  ailords, 
under  ordinar\  circumstances,  a  fair  presumption  of  its  just- 
ness and  propriety.  While  he  acts,  within  the  line  of  his  duty, 
every  presumption  is  to  be  made  in  his  favor;  if,  however,  he 
]jays  groundless  or  illegal  claims  upon  the  estate,  he  must  bear 
the  loss ;  if  he  pays  disputed  claims,  especially  after  being 
warned,  he  acts  at  his  peril. -^ 

Burden  of  Proof. 

In  all  matters  of  charge  against  the  accountant,  the  l)urden  of 
proof  is  upon  the  exceptant;-*  but  in  matters  of  discharge,  the 
burden  is  upon  the  accountant.-'  So  where  accountant  in- 
ventories securities  as  assets  of  the  estate  of  his  decedent,  and 
afterwards  in  his  account  prays  allowance  for  those  securities 
on  the  ground  that  they  were  not  in  fact  assets  of  the  decedent, 
or  for  any  other  reason,  the  burden  of  establishing  the  fact  that 
they  did  not  belong  to  decedent  at  his  decease  is  cast  upon  him, 
and  he  will  not  be  permitted  the  allowance  prayed  except  upon 
satisfactory  proof  of  that  fact.-'^  So  a  claim  on  the  part  of 
an  executor  for  money  paid  in  testator's  lifetime  on  a  note  of 
testator  is  not  sustained  by  proof  that  the  money  was  paid 
by  the  executor,  who  was  the  son  of  testator;  in  the  absence 
of  any  legal  evidence  to  show  that  the  money  was  actually 
advanced  by  the  son,  the  presumption  under  the  circumstances 
of  the  case  is  that  he  made  the  payment  as  the  agent  of  the 
father,  and  with  the  funds  of  his  jjrincipal.'-'     Ikit  if  the  court 

--Elmer  v.  Lopcr,  25  N.  J.  Eq.,  216.     Brewster  v.  Dcniarest,  48  N. 

47.S-  J.  Eq.,  559-     Frey's  Case,  73  N.  J. 

-^Egerton   v.   Egerton,   17  N.  J.  Eq.,    346.      In    re    Wiley's    Estate, 

Eq..  419-423.     In   re   Dreier's   Es-  65   Atl.    Rep.,   212.     McCulloch   v. 

tate.  92'  Atl.  Rep.,  51.  Tomkins,  62  N.  J.  Eq.,  262. 

-'"Kirhy   v.    Coles.    15    N.   J.    L.,  -''••Bayley's    Case,    67    N.    J.    Eq., 

441-  566.     Tichenor  v.  Tichenor,  45  N. 

-^Kirby  v.   Coles,    15    X.    J.   L.,  J.  Eq.,  303. 
441-     Pyatt  V.  Pyatt.  44  N.  J.  Eq.,  ^-p^rsel  v.  Pursel.  14  N.  J.  Eq.. 

491-     Reversed  46  N.  J.  Eq.,  2S5.  514. 
Dufforrl    V.    Smith.    46    X.    J.    Eq., 


6/0  Probate;  Law  and  Practice.  •    , 

is  satisfied  of  the  good  faith  of  the  accountant,  it  is  not  bound 
to  reject  a  payment  actually  made,  because  of  some  doubt  of 
the  fairness  of  the  claim,  or  because  the  evidence  thereof  is 
not  as  full  and  ample  as  may  l)e  required  in  other  cases ;  if 
reasonable  prudence  and  discretion  are  exhiljited  in  the  pay- 
ment, it  is  enough.-* 

Vouchers  and  Proof  of  Payment. 

It  is  the  duty  of  executors,  administrators,  guardians  and 
trustees  to  take  and  preserve  proper  vouchers  for  payments 
made  by  them,  and  the  statute  requires  them  to  produce  them 
to  the  court  for  its  examination  ;'■'•'  but  while  evidence  of  pay- 
ments by  an  executor,  administrator,  guardian  or  trustee  is 
ordinarily  shown  by  the  production  of  vouchers,  other  con- 
vincing proof  may  be  introduced  to  justify  an  allowance  to 
him  for  payments  made.^'"  In  all  matters  of  account,  the  party 
who  produces  vouchers  in  support  of  his  account  produces 
them  at  his  peril ;  and  the  court  is  bound  to  admit  a  voucher 
in  evidence,  unless  the  other  side  can  lay  a  reasonable  ground 
to  show  that  it  can  be  impeached.  The  court  may,  however, 
require  proof  besides  the  vouchers,  if  it  doubts  the  payment. ^^ 
So  where  accountant  produces  vouchers  in  support  of  her 
claim  for  allowance  for  moneys  paid  by  her,  and  an  exception 
is  taken  to  the  allowance  of  such  claim,  and  the  accountant 
is  not  required  to  produce  additional  proof  thereof,  the  claim 
will  be  allowed  upon  the  vouchers. '- 

^^l^ere  accountant  is  unable  to  produce  a  voucher  in  support 
of  a  payment  for  which  he  prays  allowance  in  his  account,  he 
is  a  competent  witness  on  this  question,  and  his  testimony,  in 
the  absence  of  contradiction,  may  be  relied  on  by  the  court. ^^ 
So  where  it  satisfactorily  appears  that  an  executor  has  made 

■-'^Kirby   v.    Coles,    15    N.   J.    L..  and     "Checks     as     \'(uichers."     j). 

441-  642,  supra. 

-■'Smith   V.    Robmson.   83   N.   J.  3"Smitli   v.    Ro1)inson.   83    N.   J. 

Eq..  381.     Dufford  v.  Smith,  46  N.  Eq.,  384. 

J.   Eq.,  216.     Willis  V.  Clymer,  66  ^iHalsted  v.  Tyng,  29  X.  J.  Eq., 

N.     J.     Eq.,     284-289.       Orphans"  86. 

Court  Act,  sec.   125.  p.  647.  supra.  32]3jj-t;|,Qi„-,  y    Wardell.  42  N.  J. 

and  see  "Vouchers  to  be  Lodged  Eq.,  2>?)7- 

with    Surrogate."    p.    642.    supra,  ^r.prey's  Case,  y^  N.  T.  Eq..  346. 


Exceptions  to  Accounts.  671 

payments  to  the  widow  of  testator,  with  the  express  assent  of 
the  other  legatees,  in  pursuance  of  an  equitable  arrangement 
by  which  controversies  about  the  estate  were  settled,  and  liti- 
gation avoided,  it  is  clear  that  the  legatee  by  whose  consent 
such  arrangement  was  made  cannot,  on  exceptions  to  the  ac- 
count of  the  executor,  object  to  his  being  allowed  for  such 
payment.^*  So  where  an  executor  allowed  a  claim  for  farm 
produce  furnished  the  testatrix,  and  the  claimant  swore  posi- 
tively that  he  furnished  the  produce  and  that  no  part  of  the 
price  had  ever  been  paid,  his  oath  is  not  overcome  by  that  of 
one  of  the  next  of  kin,  the  exceptant,  who  swore  that  the 
claimant  lived  with  testatrix  and  had  no  place  where  he  could 
raise  the  produce. ^^  An  accountant  should  not,  however,  be 
allowed  credit  for  money  alleged  to  have  been  paid  to  satisfy 
a  judgment  against  the  trust  estate,  merely  on  his  own  testi- 
mony as  to  such  payment,  without  any  voucher  or  evidence  of 
judgm.ent  or  execution,  such  evidence  being  readily  procur- 
able.^*^ An  administrator  may  be  allowed  in  his  account  surro- 
gate's fees  required  by  law  to  be  paid,  although  no  vouciier  is 
produced  therefor.'" 


COSTS  ON  EXCEPTIONS. 


General  Rule. 


As  a  general  rule,  where  exceptions  to  an  account  are  sus- 
tained, the  costs  will  be  charged  against  accountant  personal- 
ly.^^ So  where  the  executors  have  permitted  great  and  un- 
warrantable delay  in  the  final  settlement  of  their  account,  they 
will  be  charged  with  costs  on  exce])tions  ;•'"  and  so  where  the 
difficulty  is  caused  by  the  failure  of  the  executor  to  exhibit  a 
proper  inventory  and  to  keep  proper  accounts,  costs  and  coun- 
sel fees  will  not  be  allowed  him,  though  the  exceptions  be  over- 

3*Pursel  V.  Pursel,  14  N.  J.  Eq..  ■"■^Aldridge  v.  McClelland,  36  N. 

514.  J.  Kq.,  288.    Affirmed  38  N.  T.  Eq.. 

35Middleton  v.  Middleton,  35  N.  279.    Fluck  v.  Lake,  54  N.  J.  Eq., 

J.  Eq.,  141.  638.     Rrokaw  v.  Brokaw,  41  N.  J. 

38Willis  V.  Clymer.  66  N.  J.  Eq.,  Eq.,  .304. 

284.  ""Egerton  v.  Egerton,   17  N.  J. 

'TBirkholm  v.  Wardcll.  42  N.  J.  Eq.,  419. 
Eq.,  337. 

44 


672  Probate  Law  and  Practice. 

ruled. ■^"^  So  where  the  necessity  of  exceptions  to  an  account  is 
due  to  the  failure  of  the  executor  to  discharge  his  duty  to  the 
estate,  and  to  comply  with  the  orders  of  the  court,  he  should 
be  required  to  pay  the  costs  of  the  proceedings  ;^^  and  so  where 
an  erroneous  payment  of  a  legacy  is  made  by  an  executor,  and 
the  litigation  on  an  exception  to  an  allowance  of  such  payment 
in  his  account  is  unnecessarily  and  unreasonably  protracted 
by  him,  he  will  be  charged  with  interest  on  such  payment  from 
the  time  of  making  the  same.^-  But  where  the  exceptions  are 
not  sustained,  no  costs  will  be  given  against  accountant.*' 

Where  some  of  the  exceptions  are  sustained  and  some  over- 
ruled, the  accoimtant  will  be  charged  with  the  costs  on  the 
exceptions  sustained,  while  the  estate  will  be  charged  with  the 
accountant's  costs  on  the  exceptions  overruled. ^^ 

Allowance  of  Counsel  Fees. 

The  power  of  the  orphans'  court  to  order  the  payment  by 
accountants  personally  of  counsel  fees  allowed  by  the  court 
on  exceptions  to  an  account  has  been  approved  by  the  Preroga- 
tive Court  in  man)-  cases  ;^''  and  where  the  dereliction  of  an 
accountant  occasioned  loss  to  the  trust  fund,  and  was  estab- 
lished on  his  own  admission,  it  was  held  that  a  decree  allow- 
ing exceptant  a  counsel  fee  to  be  paid  by  the  derelict  trustee 
was  proper.  The  allowance  of  such  a  fee.  and  its  amount, 
is  to  be  determined  in  the  discretion  of  the  court,  which  dis- 
cretion should  not  be  destroyed  by  a  reversal  unless  it  mani- 
festly appears  to  have  l:)een  unreasonably  exercised.*" 

Where  on  exceptions  to  an  account  the  court  orders  that 
accountant  personally  pay  the  counsel  fees  of  exceptant,  the 
amount  of  such  counsel  fees  shotild  be  fixed  as  a  compensation 
for  such  labor  as  counsel  has  been  compelled  to  perform  for 

^"Pursel  V.  Pursel,  14  N.  J.  Eq.,  585.    In  re  Dreier's  Estate,  92  Atl. 

514-526.  Rep.,  51. 

4iAldridge  v.  McClelland,  36  N.  ^^Slierman    v.   Lanier,   39   N.   J. 

J.-  Eq.,  288.    Affirmed  38  N.  J.  Eq.,  Eq.,  249-258.     McCloskey  v.  Bow- 

2/9.  den,  82  N.  J.  Eq.,  410. 

42VanHouten  v.  Post.  32  N.  J.  ^^King  v.  Foerster,  61  N.  J.  Eq., 

Eq.,  609.     Reversed  33  N.  J.  Eq.,  584-588. 

344-  ^^King  v.  Foerster.  61  N.  J.  E(i., 

*3King  V.  Foerster,  61  N.  J.  Eq.,  584.  at  p.  589. 


Appeal  from  Decree  on  Accounting.  673 

his  client.  It  is  not  to  be  treated  as  a  penalty  imposed  upon 
the  delinquent  trustee,  and  graduated  by  the  court's  sense  of  his 
misconduct,  but  only  as  an  imposition  upon  the  trustee  of  the 
expense  which  the  cestui  que  trust  has  reasonably  been  required 
to  pay  to  compel  the  trustee  to  render  a  proper  account.  Any 
award  exceeding  reasonable  compensation  for  such  services  of 
counsel  must  be  held  to  be  excessive.''' 

Where  an  executor's  account  is  successfully  attacked,  and 
he  is  surcharged,  it.is,  as  a  general  rule.  imi)r()per  to  allow  him 
a  counsel  fee  for  defending  exceptions  filed  against  the  account. 
The  result  of  allowing  such  counsel  fees  would  be  to  enable  the 
executor  to  pay  counsel  for  an  unsuccessful  attempt  to  main- 
tain his  own  account. "*■*  So  where  the  litigation  on  exceptions 
to  an  account  is  caused  by  the  fact  that  the  accounts  kept  by  the 
administrator  were  meagre  and  filled  with  inaccuracies  and 
errors,  and,  bv  the  fact  that  the  administrator  had  used  a  large 
part  of  the  moneys  belonging  to  the  estate  for  his  private  busi- 
ness, as  his  conduct  led  to  confusion,  and  was  the  cause  of  the 
litigation,  no  counsel  fees  will  be  alkiwed  payable  out  of  the 
estate. *° 

APPEAL  FROM  DECREE  ON  ACCOUNTING. 

Matters  Considered, 

Where  an  a]:)peal  is  taken  from  the  sentence  or  decree  of  the 
orphans'  court  on  the  settlement  of  the  account  of  an  execu- 
tor, administrator,  guardian  or  trustee,  if  the  appellant  wishes 
to  review  the  decision  of  the  orphans'  court  as  to  the  allowance 
or  rejection  of  any  particular  items  of  the  account,  such  items 
shall  be  specified  in  the  petition  of  ap]:)eal,  or  the  allowance  or 
disallowance  of  anv  such  item  shall  not  be  considered  a  suffi- 
cient ground  for  reversing  or  modifying  the  sentence  or  decree 
a))pealed  from.  The  res])ondent  in  his  answer  to  the  ])etilion  of 
a])i)eal  in  such  cases,  may  also  s])ccify  an\-  items  in  llie  accotuit 
as  to  which  he  supposes  the  sentence  or  decree  is  erroneous  as 

^^King  V.  Foerster,  61  N.  J.  Eq.,  Ivep.,  lozo.  Affirmed  72  N.  T.  Eq.. 
584,  at  p.  589.  944. 

■♦''In  re  Flaacke's  Estate,  64  Atl.  '♦^•Fluck   v.    Lake,   54   N.   J.   Eq., 

638. 


674  Probate  Law  and  Practice. 

against  him  and  in  favor  of  the  appellant ;  and  upon  the  hearing 
of  the  parties  upon  such  appeal,  the  sentence  or  decree  of  the 
orphans'  court  may  be  modified,  as  to  any  such  items,  in  the 
same  manner  as  if  a  cross-appeal  had  been  brought  by  such 
respondent.^" 

On  an  appeal  from  the  orphans'  court  on  final  accounting, 
no  question  can  be  raised  in  the  Prerogative  Court  which  was 
not  raised  and  decided  in  the  court  below,'^  and  only  those 
portions  of  the  account  to  which  exceptions  have  been  taken  in 
the  orphans'  court  will  be  considered.^-  An  inquiry  whether 
a  guardian  has  made  use  of  a  balance  due  his  ward,  before 
the  final  allowance  of  the  accounts,  may  be  made  in  the  Pre- 
rogative Court  f^  and  when  the  orphans'  court  does  not  fix 
the  value  of  a  chattel  with  wiiich  both  it  and  the  Prerogative 
Court  adjudge  that  accountant  should  be  charged,  its  value 
may  be  fixed  in  the  appellate  court. ^* 

Although  a  respondent  does  not  appeal  from  a  decree  of  the 
orphans'  court  against  her,  the  Prerogative  Court  may  never- 
theless correct  an  obvious  error  in  the  amount  of  a  claim  to 
which  she  is  entitled. ^•'^ 

Appeal  from  Allowance  of  Counsel  Fees. 

An  appeal  will  lie  from  a  decree  of  the  orphans'  court  foi 
the  payment  of  counsel  fees.'^" 

^''Prerogative  Court  Rule  62.  "Birkholm  v.  Wardell.  42  N.  J. 

5iTrimmer  v.  Adams,   18  N.  J.  Eq.,   337.     See   also   "Jurisdiction 

Eq.,  S05.  of  Court,"  p.  89,  supra. 

52Polis  V.  Tice,  28  N.  J.  Eq.,  432.  ^^Brokaw  v.  Brokaw,  41    N.  J 

Luse  V.  Rarick,  34  N.  J.  Eq.,  212.  Eq.,  304.     Burr  v.  Burr,  53  N.  J 

In    re    Ramsey's    Estate,    66    Atl.  Eq.,  627.     Fluck  v.  Lake,  54  N.  J 

Rep.,  410.  Eq.,  638.     King  v.  Foerster,  61  N 

53In  re  Mott,  26  N.  J.  Eq.,  509.  J.  Eq.,  584.    Kingsland  v.  Scudder 

5*Schick  V.  Grote,  42  N.  J.  Eq..  36  N.  J.  Eq.,  284. 
352. 


CHAPTER  XXII. 
COMMISSIONS. 
RIGHT  TO   COMMISSIONS. 
Common  Law  Rule. 

At  common  law.  an  executor,  administrator,  guardian  or 
trustee  was  allowed  nothing  for  his  care  or  trouble,  as  the  office 
of  personal  representative  was  regarded  as  honorary  ;^  but 
the  practice  of  allowing  compensation  to  executors,  adminis- 
trators, guardians  and  trustees  has  long  prevailed  in  New 
Jersey.-  The  earliest  legislation  in  New  Jersey  limiting  such 
allowance  was  passed  March  17,  1855.^ 

Necessity  for  Allowance  by  Court. 

An  executor,  administrator,  guardian  or  trustee  is  not  en- 
titled to  commissions  until  they  are  settled  and  allowed  by  the 
orphans'  court,  and  they  cannot  be  deducted  by  him  until  they 
are  so  fixed  and  allowed.*  If  he  takes  them  before  that  time, 
he  occupies  the  position  of  a  borrower  of  the  amount  so  taken, 
and  is  chargeable  with  interest  thereon  to  the  time  of  his  ac- 
counting f  and  where  a  trustee  had  paid  commissions  to  him- 
self before  his  account  was  passed,  and  upon  the  passing  of  his 
account  it  was  held  that  by  reason  of  his  misconduct  no  com- 
missions would  be  allowed  him  by  the  court,  he  was  surcharged 

1  State  Bank  v.  Marsh,   i   N.  J.  sions,     see     Reporter's     Note     tc 

Eq.,  288.     Warbass  v.  Armstrong.  Mount  v.  Slack,  39  N.  J.  Eq.,  230: 

10  N.  J.  Eq.,  263.  also  to  Stein  v.  Huesmann,  38  N. 

-Warbass  v.   Armstrong,   10  N.  J.  Eq.,  405-406. 

J.   Eq.,  263.     \^oorhees   v.   Stool-  '  *Lathrop   v.    Smalley,   23   N.    J. 

lioff,  II  N.  J.  L.,  145-149-  Eq.,    192.     Wyckoff  v.  O'Neil,  72 

3See  Nix.  Dig..  561.    For  an  ex-  N.  J.  Eq.,  880. 

tensive  examination  of  cases  rela-  ,    ^Wyckofif    v.    O'Neil,    72    N.    J. 

live  to  the  allowance  of  commis-  -Eq.,  880. 

675 


dyd  Probate  Law  axd  Practice. 

with  the  amount  of  the  commissions  so  taken  by  him,  with 
compound  interest  computed  with  annual  rests.*' y 

Where  Will  Provides  for  Compensation. 

Where  provision  shall  be  made  by  a  will  for  specific  compen- 
sation to  an  executor,  guardian  or  trustee,  the  same  shall  be 
deemed  a  full  satisfaction  for  his  services  in  lieu  of  the  allow- 
ance aforesaid,  or  his  share  thereof,  unless  he  shall,  by  writing 
filed  with  the  surrogate,  renoiuice  all  claim  to  such  specific 
compensation.'  A  testator  may  deprive  his  executor  of  all 
compensation,  if  he  so  expressly  provides  in  his  will,  and  the 
executor,  by  accepting  his  ofiice,  accepts  the  terms  of  the  will.^ 
Where,  however,  the  estate  exceeds  $50,000,  a  provision  in  the 
will  that  executors  shall  "act  without  fee  or  emolument  for 
their  services  rendered  in  that  capacity"  is  invalid,  since  the 
statute'^  provides  that  commissions  in  such  cases  shall,  be  de- 
termined by  the  orphans'  court,  and  the  effect  of  such  a  pro- 
vision is  to  deprive  that  court  of  jurisdiction  ;  and  the  execu- 
tors who  prove  the  will  and  perform  their  duties  faithfully 
may  be  allowed  the  u.sual  commissions.^'' 

Where  testator  gave  all  of  his  estate  to  his  executors  in  trust 
to  convert  the  realty  into  personalty,  with  directions  as  to  the 
disposition  thereof,  and  authorized  the  executors  to  retain  as 
their  compensation  five  per  cent,  of  the  money  realized  by  them 
in  the  settlement  of  his  estate,  both  real  and  personal,  and 
the  executors  paid  all  legacies  and  claims  against  the  estate, 
without  resorting  to  the  sale  of  all  the  real  estate,  and  the 
residuary  legatee  objected  to  the  conversion  of  the  remaining 
realty,  they  will  be  entitled  to  a  commission  of  five  per  cent 
on  the  unconveyed  realty  ;^^  but  in  a  case  where  testator  devised 
the  bulk  of  his  estate  to  his  executors,  who  were  his  sons,  and 
directed  that  his  debts  and  expenses  be  paid  from  the  legacies 
bequeathed  to  them,  the  executors  were  Iield  not  entitled  to 
commissions. ^- 

^McKnight  v.  Walsh,  23   N.    1.  ^Section  129.  p.  680,  infra. 

Eq.,^  136.     Affirmed  24  N.  J.   Eq.,  ^nx\  re  Taylor,  12  N.  J.  L.  J.,  49- 

498.*  "Stein  V.  Huesmann,  38  N.  J. 

"Orphans'   Court  Act,   sec.    132.'  Eq..  405. 

3  Comp.  Stat..  3861.  i^in  re  Haines,  8  N.  J.  Eq.,  506. 

sSecor  v.   Sentis,   5   Redf.   Sur. 
(N.  Y.)  570. 


Commissions.  677 

FROM    WHAT    FUND    PAYABLE. 

In  General. 

The  commissions  of  personal  rejn-esentatives  are  paid  ont 
of  the  residue  of  the  personal  estate ;  and  when  a  will  contains 
no  directions  as  to  commissions,  specific  legacies  and  bequests 
of  specific  sums,  even  though  bequeathed  as  trust  funds,  are 
not  charged  with  them,  but  are  paid  in  full,  and  the  commis- 
sions are  taken  from  the  residue,  or  from  such  assets  as  are 
not  disposed  of.''  Where,  however,  the  residue  of  the  personal 
estate  is  insufficient  to  pay  the  commissions  allowed,  sufficient 
lands  of  decedent  may  be  sold,  under  proceedings  for  sale  of 
lands  to  pav  debts,  to  pay  the  amount  of  such  commissions.'* 

As  Between  Life-Tenant  and  Remainderman. 

Where  the  interest  of  a  fund  is  directed  to  be  paid  to  one 
person  for  life  and  the  principal  fund  to  another  on  the  death 
of  the  first,  commissions  for  collecting  and  paying  the  inter- 
est must  be  paid  out  of  the  income,  and  are  not  chargeable 
against  the  principal.'^ 

ON    WHAT    SUMS   ALLOWED. 

In  General. 

The  statute  provides"'  that  commissions  of  executors,  ad- 
ministrators, guardians  or  trustees  under  a  will  shall  be 
allowed  "on  all  sums  that  come  into  their  hands"  ;  and  it  is 
settled  that  commissions  may  be  allowed  upon  any  personal 
property  that  comes  to  hand  having  a  money  value.  Thus, 
where  the  estate  consisted  of  securities  which  the  executors 
received  and  inventoried  at  their  market  value,  and  afterwards 
transferred  to  the  legatees  as  so  much  cash,  the\-  are  entitled 
to  commissions  on  the  inventoried  value  of  such  securities;'" 
and  it  has  been  held  that  this  principle  applies  to  real  property 

i3Fowler  v.  Colt,  22  N.  J.  Eq.,  berry,  40  N.  J.  Eq.,  545-549-     Af- 

44.     McKnight  v.  Walsh,  23  N.  J.  firmed  42  N.  J.  Eq..  699- 

Eq..    136-149.     Affirmed   24  N.   J.  i^Orphans'  Court  Act,  sec.   129, 

Eq.,  498.  p.  680,  infra. 

"•'Personette  v.  Johnson,  40  N.  i^Pomeroy    v.    Mills,    37    N.    J. 

J.  Eq.,  173.  Eq.,  578.     Stein   v.   Hucsmann,  38 

'•"'Danly   v.   Cummins,  31    N.   J.  N.  J.  Eq.,  405- 
Eq..    20S.      Woodruff    v.    Louns- 


678  Probatk  Law  and  Practick. 

which  they  are  directed  to  convert. ^^  So  executors  are  entitled 
to  commissions  on  the  proceeds  of  sales  of  real  property  sold 
under  a  testamentary  power  of  sale/^ 

Uncollected  Assets. 

An  executor  or  administrator  is  not  entitled  to  commissions 
on  any  part  of  the  assets  not  collected ;  thus,  where  the  execu- 
tor is  a  debtor  of  the  testator,  and  a  trust  fund  established  by 
the  testator  consists  of  a  debt  which  the  executor  has  never 
paid  into  the  estate,  but  upon  which  he  paid  the  interest  as  it 
accrued,  he  is  not  entitled  to  commissions. -°  So  commissions 
will  not  be  allowed  on  stock,  belonging  to  testator,  which  never 
came  under  the  control  of  the  executors.-^  So  an  executor  is 
not  entitled  to  commissions  on  the  appraised  value  of  the  testa- 
tor's interest  in  a  New  York  partnership,  which  never  came 
to  his  hands,  and  for  which  he  was  never  in  any  way  responsi- 
ble ;"  and,  upon  the  same  principle  executors  will  not  be  allowed 
commissions  on  advances  by  the  testator  to  his  sons,  though 
they  had  inventoried  such  advances.-"  So  where  an  executor 
with  power  of  sale  of  realty,  who  is  also  a  devisee,  unites  with 
other  devisees  in  conveying  the  lands,  stipulating  that  it  was 
not  necessary  to  execute  the  testamentary  power,  he  will  not 
be  entitled  to  commissions  on  the  purchase  money  of  the  lands 
so  sold.-*  So  where  commissions  are  paid  on  moneys  received 
by  executors,  which  are  again  paid  out  by  them  and  afterwards 
re-paid  to  them,  they  will  not  be  allowed  a  commission  thereon 
again, '^  but  where  a  conversion  of  realty  is  directed  by  will, 
and  a  bill  is  filed  to  restrain  the  executor  from  converting  the 
real  estate,  on  the  ground  that  there  is  no  necessity  therefor. 

i^Matter     of     De     Peyster,     4  --In   re   Flaacke's   Est.,   64  Atl. 

Sandf.  Ch.,  511.     Stein  v.   Hues-  Rep.,  1020.    Affirmed  72  N.  J.  Eq.. 

mann,   38   N.   J.   Eq..  405.     Wag-  944. 

staff  V.  Lowerre,  23  Barb.,  209.  -^Metcalfe   v.    Colles,    43    N.   J. 

i^Baker   v.   Johnston,    39   N.   J.  Eq.,  148. 

Eq.,  493.  24]y[etcalfe   v.    Colles,    43   N.   J. 

20McKnight  v.  Walsh,  23  N.  J.  Eq.,  148. 

Eq.,   136.     Affirmed  24  N.  J.  Eq.,  -^Metcalfe   v.   Colles,   43    N.   J. 

498.  Eq.,  148. 

2iPomeroy    v.    Mills,    2>7    N.    T. 
Eq.,  578. 


Commissions.  679 

and  to  convey  it  to  the  devisee,  commissions  on  the  appraised 
\alue  of  the  realty  will  be  allowed.-'^  Where  a  power  of 
appointment  is  given  to  an  executor,  he  is  not  entitled  to  com- 
missions for  investing  and  managing  the  fund.-' 

Where  Property  Sold  at  Less  Than  Inventoried  Valuation. 

Where  the  personal  assets  of  an  estate  are  sold  for  a  less 
-um  than  that  at  which  they  were  inventoried,  the  amount  of 
such  loss  should  l)e  deducted  from  the  amount  of  the  inventory 
for  the  purpose  of  ascertaining  the  sum  on  which  commissions 
are  to  be  computed  ;  the  amount  of  such  loss  never  "came  into" 
the  executor's  hands,  either  actually  or  constructively,  and 
he  therefore,  had  no  "actual  pains,  trouble  and  risk"  with 
relation  thereto,  as  contemplated  by  the  statute  fixing  the  com- 
pensation of  executors.-* 

Where  Executor,  Etc.,  Continues  Business. 

Where  an  executor  continues  the  business  of  his  testator 
under  authority  of  the  will,  or  merely  for  the  purpose  of  wind- 
ing it  up,  his  compensation  for  this  service  is  included  in  his 
commissions  as  executor,  and  the  basis  for  fixing  commissions 
is  not  the  amount  of  the  gross  receipts  or  expenses  of  the  busi- 
ness, but  the  net  income,  and  the  amount  by  which  this  in- 
creased the  corpus  of  the  fund,  and  cannot  include  a  charge  for 
services  for  continuing  the  business.-''  But  where  the  carrying 
on  of  testator's  business  by  an  executor  is  unauthorized,  the 
right  of  such  executor  to  compensation  beyond  his  statutory 
commissions  on  the  amount  of  the  estate  coming  to  his  hands 
is  based  upon  other  principles.  In  such  case,  the  general  rule 
is  that  the  beneficiaries  have  the  option  to  charge  the  executor 
either  with  the  value  of  the  estate,  including  the  business, 
together  with  interest,  or  with  the  amount  of  the  net  profits 

2«Stcin  V.  Huesmann.,  38  N.  J.  tate,  64  Atl.  Rep.,  1020.     Affirmed 

Eq.,  405-  72  N.  J.  Eq.,  944- 

27Lippincott  V.   Stokes,  6  N.  J.  --'In  re  Merchant's  Case,  39  N. 

Eq.,  122-152.  J.  Eq.,  506-509.    Affirmed  41  N.  J. 

^^Orphans'  Court   Act,  sec.   129,  Eq.,  349.     C.illigan  v.  Daly,  79  N. 

p.  680,  infra.     In  re  I'laacke's  Es-  J.  Eq.,  36. 


68o  Probate  Law  and  Practice. 

realized  from  the  business  r"  and  compensation  for  his  serv- 
ices in  conducting  the  business  may  be  allowed  as  expense  and 
deducted  from  the  profits  of  the  business,  if  the  business  is  not 
conducted  at  a  loss.^^  It  might  happen,  therefore,  that  the 
compensation  to  the  executor,  in  cases  where  the  business  was 
continued  without  authority,  would  sometimes  be  larger  than 
where  authorized,  and  therefore  fixed  by  the  statute;  but  it 
is  to  be  considered,  first,  that  in  the  former  case  the  continuance 
of  the  business  is  at  the  personal  risk  of  the  executors  indemni- 
fying the  estate  against  loss  and  also  of  being  personally  liable 
for  debts,  and  secondly,  that  the  court  in  enforcing  the  liability 
of  trustees  does  not  act  as  a  court  of  penal  jurisdiction,  or 
for  the  purpose  of  punishment,  but  only  for  the  purpose  of 
compelling  restitution,  or  granting  compensation  for  loss  actu- 
ally sustained/'- 

RATE  OF  ALLOWANCE. 
Where  Receipts  are  Less  Than  $50,000. 

On  the  settlement  of  the  accounts  of  executors,  adminis- 
trators, guardians  or  trustees  under  a  will,  their  commissions, 
over  and  above  their  actual  expenses,  shall  not  exceed  the 
following  rates :  On  all  sums  that  come  into  their  hands, 
not  exceeding  one  thousand  dollars,  seven  per  centum  ;  if  over 
one  thousand  dollars,  and  not  exceeding  five  thousand,  four 
per  centum  on  such  excess ;  if  over  five  thousand  dollars  and 
not  exceeding  ten  thousand,  three  per  centum  on  such  excess ; 
and  if  over  ten  thousand  dollars,  two  per  centum  on  such 
excess. ^^ 

Executors',     Administrators'     or     Trustees'     Commissions, 
Where  Receipts  Exceed  $50,000. 

The  commissions  of  executors,  administrators  and  trustees 
in  any  estate  where  the  receipts  exceed  the  sum  of  fifty  thou- 
sand dollars,  shall  be  determined  by  the  orphans'  court  on  the 
final  settlement  of  their  accounts  according  to  the  actual  serv- 

•''oGilligan  v.  Daly,  79  N.  J.  Eq.,  ssGiHigan  v.  Daly,  79  N.  J.  Eq.. 

36.  36. 

^iGilligan  v.  Daly,  79  N.  J.  Eq..  ^sQrphans'  Court  Act,  sec.   129. 

36.  3  Comp.  Stat..  3860. 


Commissions.  68  i 

ices  rendered,  not  exceeding-  live  per  centum  on  all  sinus  which 
come  into  their  hands.''* 

Guardians'  Commissions,  Where  Receipts  Exceed  $20,000. 

Whenever,  upon  the  settlement  of  the  account  of  a  guardian 
of  an  infant,  idiot,  lunatic  or  feeble-minded  person  it  shall 
appear  that  the  estate  of  such  infant,  idiot,  lunatic  or  feeble- 
minded person  received  into  the  hands  of  such  guardian  ex- 
ceeds the  sum  of  twenty  thousand  dollars,  it  shall  and  may 
be  lawful,  upon  such  and  any  subsequent  accounting,  for  the 
court  before  which  said  account  shall  be  presented  for  settle- 
ment and  allowance,  to  consider  the  actual  pains,  trouble  and 
risk  of  such  accountant,  and  to  allow  such  commission  upon 
the  estate  and  interest  or  income  received  as  to  the  said  court 
shall  be  deemed  fair  and  just:  prurided,  that  said  allowance, 
with  all  former  or  other  allowances  made  to  such- guardian, 
shall  not  together  exceed  the  sum  of  five  per  centum  on  such 
estate  and  the  income  received  by  such  guardian  for  such  in- 
fant, idiot,  lunatic  or  feeble-minded  person."^     . 

Considerations  Influencing  Court  in  Allowing  Commissions. 

The  statute  provides  that  the  allowance  of  c9mmissions  to 
executors,  administrators,  guardians  or  trustees  shall  be  made 
with  reference  to  their  actual  pains,  trouble  and  risk  in  settling 
the  estate,  rather  than  in  resjiect  to  the  quantum  of  such 
estate  ;'■  but  the  allowance  of  commissions,  w^hile  in  the  dis- 
cretion of  the  court,  is  subject  to  certain  positive  limitations, 
which  cannot  be  exceeded,  and  also  to  certain  admonitory  pro- 
visions by  which  the  legislature  intended  still  further  to  circum- 
scribe the  exercise  of  the  discretion,  such  as  the  provisions  that 
the  amount  to  be  allowed  shall  not  exceed  certain  rates,  and  that 
in  the  exercise  of  discretion  regard  is  to  be  had  to  what  are  the 
true  grounds  of  compensation,  namely,  trouble,  risk  and  actual 
pains,  rather  than  to  the  size  of  the  estate.  Courts  arc  thus 
admonished  by  statute,  as  well  as  by  the  requirements  of  the 

•■■••Orphans'  Court  Act,  sec.   129.  "Orphans"  Court  Act,  sec.   12S. 

3  Comp.  Stat.,  3860.  3  Comp  Stat..  3859. 

s^Orphans'  Court  Act,  sec.  131. 
3  CV.mp.  Stat..  3861. 


682  pROiJATK  Law  and  Pkactick. 

due  administration  of  justice,  that  the  mere  fact  that  the  estate 
is  large  is  not  of  itself  sufficient  warrant  for  a  large  allowance 
to  those  to  whom  the  law  has  committed  it  for  protection  and 
management,  but  that  they  are  to  have  regard  rather  to  other 
and  more  proper  considerations — actual  pains,  trouble  and  risk. 
At  the  same  time,  it  is  equally  due  to  the  proper  administration 
of  justice,  and  therefore  to  the  interests  of  society,  that  the 
remuneration  should  not  be  so  meager  and  unsatisfactory  as  to 
induce  such  as  can  render  valuable  services  in  the  management 
of  such  trusts,  and  whose  acceptance  thereof  is  to  be  desired, 
to  refuse  to  assume  the  care  and  responsibility  attendant  there- 
on. In  fixing  such  compensation,  the  size  of  the  estate,  where 
there  is  responsibility  for  its  protection,  should,  of  course,  not 
be  left  out  of  consideration."*  Where  a  guardian  simply 
received  from  the  executors  of  an  estate  a  sum  of  money  less 
than  $i,ooo,  and  paid  it  over  to  his  ward,  without  further 
trouble,  it  was  held  that  an  allowance  of  3  per  cent  was  suffi- 
cient compensation  for  his  services."'' 

The  court  is,  however,  restricted  by  the  statute  in  the  amount 
of  commissions  which  it  may  allow  to  executors,  administra- 
tors, guardians  and  trustees,  and  any  allowance  at  a  higher 
rate  than  that  provided  in  the  statute  will  be  set  aside  on 
appeaP'^  So  where  under  the  terms  of  a  will  it  was  the  duty 
of  executors  to  see  that  the  property  was  kept  in  tenantable 
condition,  and  one  of  the  executors,  who  was  a  carpenter,  per- 
formed services  in  repairing  such  buildings,  he  was  not  allowed 
additional  compensation  for  the  services  so  rendered  by  him.*^ 

Where  Receipts  Exceed  $50,000. 

The  statute  provides  that  where  the  receipts  exceed  the  sum 
of  fifty  thousand  dollars,  the  commissions  of  executors,  ad- 
ministrators and  trustees  shall  be  determined  by  the  orphans' 
court,  on  the  final  settlement  of  their  accounts,  according  to  the 

s^Wolfe's    Case,    34   N.   J.    Eq.,  39Holcombe  v.  Holcombe,  13  N. 

22^.     Warbass   v.    Armstrong,   10  J.  Eq.,  415. 

N.  J.  Eq.,  263.     Weeks  v.  Selby,  *oCulver  v.  Brown,  16  N.  J.  Eq., 

61    N.   J.    Eq.,   668.      Pomeroy   v.  533. 

Mills,  27  N.  J.  Eq.,  578.     Conover  ^iwilkinson  v.   Abbott,   30  All. 

V.  Ellis,  49  N.  J.  Eq.,  549.    Marsh  Rep.,  1098. 
V.  Marsh, .82  N.  J.  Eq.,  176. 


Commissions.  683 

actual  services  rendered,  not  exceeding  five  per  centum  of  all 
sums  which  come  to  their  hands. ■•-  It  has  been  seen  that, 
while  the  allowance  of  commissions  rests  in  the  discretion  of 
the  court,  the  court  is  required  to  consider  the  actual  pains, 
trouble  and  risk  of  the  accountant,  rather  than  the  size  of  the 
estate,  though  that  should  not  be  left  out  of  consideration.''^ 
W'hile  precedents  in  allowances  of  commissions  to  executors 
afford  but  little  assistance  in  fixing  compensation,  as  each  case 
must  depend  upon  its  own  circumstances  and  be  tested  and 
controlled  by  the  criterion  intended  by  the  statute,  still  they 
aft'ord  some  guide  in  determining  this  troublesome  question,** 
and  the  following  may  be  found  useful. 

In  Marsh  i\  Marsh*''  the  estate  amounted  to  $5,000,000. 
The  trustee  devoted  his  entire  time  to  the  management  of  the 
estate,  which  largely  increased  in  his  hands,  and  was  allowed 
commissions  at  the  rate  of  i  1-4  per  cent,  on  the  total  principal 
and  2  per  cent,  on  the  total  income. 

In  Pomcroy  v.  Mills*''  the  estate  amounted  to  approxi- 
mately $500,000  and  was  made  up  almost  entirely  of  se- 
curities readily  saleable  in  the  New  York  market,  wliich 
were  either  sold  there  by  brokers  employed  by  the  executors  at 
the  usual  commission,  or  transferred  by  the  executors  to  the 
legatees  in  specie.  The  indebtedness  of  the  testator  was  very 
slight.  No  litigation  attended  the  administration,  and  the  exe- 
cutors were  prepared  to  settle  their  accounts  in  about  one  year 
after  the  probate  of  the  will.  One  of  the  executors  was  a 
counsellor-at-law.  Commissions  to  the  amount  of  2  per  cent, 
were  allowed. 

In  Wolfe's  Case*'  the  estate  in  the  hands  of  the  administra- 
tor pendente  lite  amounted  to  $1,350,000.  and  consisted  of 
government  securities  and  large  blocks  of  shares  of  railroad 
stock,  which  were  sold  without  difficulty.  The  administrator 
collected  about  $28,000  of  interest  on  the  coupons  of  the  gov- 
ernment bonds,  and  a  large  sum  for  dividends.     He  had  no 

<20rphans'  Court  Act,  sec.  129,        ''^Metcalfe   v.    Colics.   43    N.   J. 

p.  680,  supra.  Eq..  148-153. 

^■■'Weeks  v.  vSelby.  61  N.  J.  Eq..  *-'^2  N.  J.  Eq..  176. 
668,  and  see  "Considerations  In-  '•^'37  N-  .1-  Rq-  578. 
fluencing  Court,"  p.  681,  supra.  *^34  N.  J.  Eq.,  223. 


684  Probate  Law  and  Practice. 

risk  of  investment,  and  but  littk  risk  of  safe-keeping,  and  he 
was  allowed  i  per  cent,  on  the  whole  amount  of  the  estate  as 
his  commissions. 

In  Lyon  v.  Bird*^  the  inventory  showed  corpus  of  $72,000 
and  income  collected  amounting  to  $9,000.  It  was  held  that  5 
per  cent,  on  the  gross  receipts  was  excessive,  and  that  i  per  cent 
on  the  amount  of  the  inventor}-  and  2  1-2  per  cent,  on  income 
was  sufficient. 

In  the  case  of  In  re  Hibblcr,*'-'  the  executor  and  trustee  was 
allowed  3  per  cent,  on  $166,000  as  executor.  After  managing 
the  estate  for  twelve  years,  he  resigned  and  asked  for  2  per 
cent,  on  the  corpus  for  compensation  as  trustee.  This  was 
denied.  The  3  per  cent,  allowed  to  him  as  executor  was  held 
excessive,  and  the  court  held  that  it  should  be  deemed  to  cover 
commissions  as  trustee  also. 

In  Metcalfe  v.  CollesJ''^  the  executor  was  a  lawyer,  and  his 
duties  as  executor  were  not  lal)orious.  He  employed  lawyers, 
brokers,  agents,  and  servants  to  perform  most  of  the  work 
which  was  required  of  him,  and  paid  them  liberally,  and  with- 
out objection,  from  the  estate.  His  individual  work  was  in  the 
main  confined  to  a  general  supervision  and  direction  of  these 
subordinates,  and  to  the  keeping  of  his  accounts.  The  employ- 
ment of  counsel  saved  him  niucli  of  the  mental  labor  which 
he  as  a  lawyer  was  capable  of  performing.  The  estate  in  the 
'  hands  of  the  accountant  amounted  to  $150,000,  and  he  was 
allowed  commissions  at  4  per  cent. 

In  the  case  of  Rogers  -c'.  Hand;'^  and  allowance  of  commis- 
sions amounting  to  3  1-2  per  cent,  on  $289,000  was  approved, 
in  a  case  where  the  executors  had  been  compelled  to  carry  on 
litigation  to  investigate  and  ascertain  exactly  what  land  the 
testator  owned,  and  to  exercise  the  testamentary  powers  to 
sell  it. 

Where  a  trustee  was  held  to  a  strict  accountability,  had 
charge  of  a  large  estate  of  a  most  varied  character,  was  re- 
quired to  exercise  due  diligence  in  the  calling  in  of  unauthor- 
ized investments,  and  had  duties  and  responsibilities  not  inci- 
dent to  the  care  of  an  ordinary  trust  estate,  he  was  allowed 

^879  N.  J.  Eq.,  157.  5043  N.  J.  Eq..  148-153. 

*^7%  N.  J.  Eq.,  217.  5139  N.  J.  Eq.,  270. 


Commissions.  68s 

4  per  cent,  upon  the  principal ;''-  and  where  a  trustee  had  for 
thirty  years  the  sole  management  of  a  large  amount  of  real 
estate,  involving  great  responsibility  and  great  care,  and  the 
expenditure  of  large  sums  of  money  in  repairing,  and  renting 
and  collecting  the  rents  of  several  dwelling  houses  thereon, 
he  was  allowed  5  per  cent,  commissions  on  the  corpus  of  the 
estate. ^^ 

Where  Executor  is  Also  Trustee. 

If  a  person  be  appointed  by  a  will  both  executor  and  trustee, 
such  person  is  entitled,  to  commissions  calculated  on  the  corpus 
of  the  estate  in  each  capacity  at  such  rate  as  will  yield  a  rea.son- 
able  compensation  for  the  service  in  each  of  such  representa- 
tive offices  ;^*  but  double  commissions  are  not  allowed  where  the 
two  offices  are  inseparably  blended  and  there  is  no  time  desig- 
nated for  separating  the  trust  fund  from  the  estate  in  admini- 
stration.-'"^  So  where  one  was  named  executor  and  trustee  in 
a  will,  and  the  estate  of  testator  came  to  him  under  the  will. 
and  his  duties  as  executor  were  inconsiderable  as  compared 
with  his  duties  as  trustee,  in  determining  the  amount  of  his 
compensation,  the  principal  fund  should  be  deemed  as  having 
passed  to  him  at  once  as  trustee,  and  an  allowance  on  the 
corpus  should  be  held  to  have  been  an  allowance  to  him  as 
trustee,  though  the  account  was  filed  as  executor.-"'  So  wdiere 
executors  who  were  also  trustees  under  the  will  settled  their 
accounts  as  executors  in  eleven  months  from  the  assumption  of 
the  administration  of  the  estate,  amounting  to  $80,000.  of 
which  amount  $72,000  was  the  amount  of  the  inventory  and 
appraisement,  it  \tas  held  improper  to  allow  them  as  e.xecutors 
commissions  of  5  per  cent,  on  the  principal,  a  proper  allow- 
ance being   i    ]x'r  cent,  on  the  amount  of  the  inventory  and  2 

52Babbitt  V.  Fidelity  Trust  Co.,  ^  ssBruere  v.  Gulick,  41  N.  J.  Eq., 

72  N.  J.  Eq.,  745-  280.    Johnson  v.  Lawrence,  95  N. 

53 Jacobus  V.  Munn.  37  N.  J.  Eq..  Y..    154.      Valentine   v.    \'aIcntino. 

48.     Reversed  38  N.  J.  Eq.,  622.  2  Barb.  Ch.,  430. 

I      ■■•^Baker   v.   Johnston,   39    N.   J.  r.rq„  ,.p  Hibblcr's  Case.  78  N.  J. 

Eq.,  493-     Pitney   v.    Everson,  42  Eq.,  217. 
N.  J.   Eq.,  361.     In    re   Kibbler's 
Case,  78  N.  J.  Eq.,  217. 


686  Probate  Law  and  Practice. 

per  cent,  or  21-2  per  cent,  on  the  principal  by  which  the  in- 
ventory was  augmented. ■'^^' 

Practice  on  Application, 

Application  for  commissions,  in  all  cases  where  the  sums 
which  shall  come  into  the  hands  of  executors,  administrators, 
or  trustees,  shall  exceed  fifty  thousand  dollars,  or  where,  in 
the  case  of  guardians,  such  sums  shall  exceed  twenty  thousand 
dollars,  shall  be  accompanied  by  an  afifidavit  stating  fully  tht 
pains,  trouble  and  risk  of  such  applicant  in  settling  such  es- 
tate.^^ 

Commissions  on  Intermediate  Accounts. 

Commissions  are  allowed  to  executors,  administrators, 
guardians  and  trustees  for  the  complete  performance  of  their 
dutv.  Not  more  than  the  maximum  sums  mentioned  in  the 
statute  can  be  allowed  to  one,  or  to  several  in  succession,  for  the 
care  and  management  of  the  estate.^"  So  where  the  final  dis- 
tribution  of  an  estate  by  an  executor  is  by  the  will  deferred  for 
a  considerable  time  after  the  settlement  of  his  account,  he  will 
not  be  allowed  commissions  upon  that  accounting  for  the  dis- 
tribution, nor  will  he  be  allowed  commissions  at  the  highest  rate 
permitted  by  the  statute,  even  though  he  may  have  earned  such 
an  amount.  It  will  not  do  for  the  probate  court  to  exhaust 
itself  by  paying  in  advance  all  that  it  has  power  to  pay,  even 
if  the  pains,  trouble  and  risk  already  suffered  by  the  executor 
should  have  justly  earned  that  amount.  In  each  case  wisdom 
dictates  that  the  value  of  the  work  to  be  done  in  the  future 
shall  be  estimated  in  order  that  the  proportionate  share  of  the 
whole  amount  available  for  commissions  may  be  paid,  and  a 
proportionate  share  held  back  to  remunerate  for  the  future 
services  f^  and  where  a  trustee  had  administered  an  estate  for 
seven  years,  during  which  time  his  only  services  had  been  to 
receive  and  disburse  the  income  of  investments  already  made, 

57Lyon   V.   Bird,   79   N.   J.    Eq.,        ^^In  re  Hibbler's  Case.  78  N.  T. 
157-  Eq.,  217. 

580rphans'  Court  Rule  23.  eoConover  v.  Ellis,  49  N.  J.  Eq., 

549.     Lyon  V.  Bird.  79  N.  J.  Eq., 

157- 


Co  M  M I SSIO  N  S .  687 

and  the  trust  would  probably  continue  for  thirty  years  longer, 
it  was  held  that  no  commissions  should  be  allowed  him  on  the 
corpus  of  the  estate  upon  an  intermediate  accounting.''^ 

When  commissions  have  been  paid  on  part  of  the  estate  on  an 
intermediate  accounting,  commissions  can  only  be  allowed  on 
the  amount  which  comes  into  the  executor's  hands  afterwards, 
and  such  commissions  are  calculated  as  if  the  sul^sequent 
receipts  were  part  of  the  prior  receipts.*'- 

Commissions  on  Income. 

WTienever.  in  pursuance  of  the  provisions  of  any  will,  or  by 
the  direction  of  the  court,  any  pro])erty  from  which  income 
is  derived  shall  remain  in  the  hands  of  or  be  entrusted  to  execu- 
tors, administrators  with  the  will  annexed,  or  trustees  under  a 
will,  or  commissioners  in  partition,  the  income  or  interest  of 
which  is  required  to  be  paid  to  any  legatee  or  other  person 
who  may  be  entitled  thereto,  it  shall  and  may  be  lawful,  upon 
anv  accounting,  either  intermediate  or  final,  for  the  court 
before  which  said  account  shall  be  presented  for  settlement  and 
allowance,  to  consider  the  actual  pains,  trouble  and  risk  of  such 
accountant,  and  to  allows  such  commission  upon  the  interest 
or  income  received  as  by  the  said  court  shall  be  deemed  fair 
and  just ;  provided,  that  said  allowance  shall  not  exceed  the 
sum  of  five  per  centum  on  such  interest  or  income.^^ 

In  the  case  of  In  re  X.  J.  Title  Guaranty  &  Trust  Co.,^*  the 
Court  of  Errors  and  Appeals  affirmed  a  decree  of  the  orphans' 
court,  wherein  5  per  cent,  commissions  were  allowed  upon  in- 
come, but  in  approving  this  allowance,  said  :  "We  are  not  to  be 
understood  as  approving  the  custom,  if  it  be  a  custom,  of  allow- 
ing a  trustee  5  per  cent,  on  the  income  in  all  cases.  It  is 
quite  evident  that  a  dififerent  test  of  the  propriety  of  the 
allowance  is  prescribed  by  section  130  of  the  Orphans'  Court 
Act.*"  The  act  authorizes  the  allowance  of  such  commission 
upon  the  income  as  the  court  shall  deem  fair  and  just,  con- 

'"•'In  re  N.  J.  Title  Guaranty  &  berry;  40  N.  J.  Eq.,  545-549- 

Trust  Co.,  76  N.  J.  Eq.,  293.  '  "•'Orphans'  Court  Act,  sec.    130 

"-Tucker    v.    Tucker,    33    N.    J.  as  amended  hy  P.  L.  iQor.  p.  178. 

Eq..   235.     .\ffirmed  34  N.  J.  Eq.,  3  Comp.  Stat..  3860. 

292.     Wilson   V.   Staats.  33   N.  J.  ^475  n    j    Eq_^  293. 

Eq.,  524-532.    Woodruff  V.  Louns-  ''■"■This  page,  supra. 


688  Probate  Law  and  Practice. 

sidering  the  actual  pains,  trouble  and  risk  of  the  accountant. 
It  then  provides  that  the  allowance  shall  not  exceed  5  per  cent., 
a  sufficiently  plain  intimation  that  it  might  well  be  less.  No 
doubt,  in  the  case  of  estates  where  the  income  is  small,  5  per 
cent,  mav  be  j^roperly  allowed,  in  order  to  give  the  trustee 
sufficient  compensation  to  induce  proper  men  to  assume  the 
responsibility,  but  where  the  annual  income  is  large,  it  must 
require  unusual  circumstances  to  justify  the  allowance  of  com- 
missions at  the  rate  of  5  per  cent." 

Where  Will  is  Probated  After  Administration  Granted. 

Where  administration  has  been  granted  of  an  estate  and 
afterwards  a  will  shall  be  produced  to  the  surrogate  or  where 
probate  of  a  will  has  been  granted,  and  afterwards  a  later 
will  shall  be  produced,  the  orphans'  court  shall  require  the 
administrator  or  prior  executor,  to  make  final  settlement  of 
his  account  and  shall  make  such  order  in  relation  to  the  com- 
missions as  shall  be  just  and  equitable.**'' 

Effect  of  Agreement  as  to  Amount. 

The  fact  that  the  parties  in  interest  agree  upon  the  compen- 
sation to  be  allowed  executors  will  not  justify  the  court  in 
making  such  allowance.  The  statute,  as  has  been  seen,  pro- 
vides that  allowance  of  commissions  to  executors,  adminis- 
trators,  guardians  or  trustees  shall  be  made  with  reference  to 
their  actual  pains,  trouble  and  risk  in  settling  such  estate, 
rather  than  in  respect  to  the  quantum  of  the  estate;  and  the 
court  should  not  make  an  allowance,  unless  it  appears  that  it 
is  proper,  taking  into  consideration  the  services  rendered  by 
the  accountants,**^  but  where  an  administrator  was  appointed 
under  an  agreement  that  he  would  not  exact  commissions  as 
such,  the  fact  that  the  beneficiaries  of  the  estate  instituted' 
litigation  against  him,  and  made  unfair  and  unjust  charges, 
does  not  entitle  him  to  commissions,  where  he  has  acted  for 
several  years  under  such  agreement.  Even  though  two  bene- 
ficiaries of  the  estate  agreed  to  aid  the  administrator  in  manag- 
ing the  estate,  in  consideration  of  his  promise  to  charge  no 

''•'Orphans'  Court  Rule  7,  p.  200,  ""Kingsland   v.    Scudder.    36   N. 

supra.  J.  Eq.,  284. 


Commissions.  689 

oommissi(jns,  and  failed  to  render  assistance,  tlie  administrator 
cannot  recover  commissions  without  showing  that  he  asked  for 
the  assistance  and  was  refused,  and  that  notice  was  given  to  the 
parties  interested.''*  So  when  a  removed  administrator  had 
sought  his  appointment,  and  obtained  renunciations  from  those 
entitled  to  administration,  upon  his  promise  that  his  services 
should  he  gratuitous,  he  will  not  be  entitled  to  commissions, 
nor  for  money  paid  to  a  lawyer  for  services  which  he  himself 
should  have  performed.'^" 

Rate  of  Allowance  in  Chancery. 

The  Orphans'  Court,  Act  does  not  control  the  Court  of 
Chancery,  in  fixing  the  commissions  allowed  to  trustees  ap- 
pointed by  that  court  to  execute  the  trusts  created  by  a  will ;'° 
Init  it  affords  at  least  a  criterion  l)y  which,  in  the  judgment  of 
the  legislature,  the  value  of  those  services  may  be  estimated, 
and  the  court  will  usually  follow  it."' 

DIFFERENCES    BETWEEN    EXECUTORS    AS    TO    DI- 
VISION OF  COMMISSIONS. 

Statutory  Provisions. 

Where  any  difference  arises  between  executors,  adminis- 
trators, guardians  or  trustees  in  regard  to  the  proportion  of 
commissions  between  them,  the  orphans'  court  shall  determine 
the  same,  having  regard  to  their  respective  services. '- 

Jurisdiction  of  Orphans'  Court. 

The  dift'erences  to  which  this  section  refers  are  only  such 
as  arise  in  regard  to  the  apportionment  of  the  commissions  to 
which  each  of  several  executors,  administrators,  guardians  or 
trustees  may  be  entitled  in  respect  of  his  services,  and  are  to  be 
adjusted  by  the  adjudication  of  the  court.  This  section  does 
not  give  the  orphans'  court  jurisdiction  to  compel  payment  by 

'•Mxandall  v.  Cray,  80  N.  J.  Eq.,  J.    Kq.,   417-419.      \'aii    lloutcn    v. 

13.  Van  Hoiiten,  45  N.  J.  Eq.,  796. 

""Middleton  v.  Carter,  73  N.  J.  ''iHoIcombe  v.  Holcntnhc,  13  N. 

Eq.,  624.     Affirmed   74   N.  J.   Eq.,  J.  Eq.,  417-419.    Wilkinson  v.  Ali- 

853.  l)ott,  30  Atl.  Rep.,  1098. 

^"Holcombe  v.  Holcoml)e,  13  N.  "-Orphans'  Court  Act.  .sec.   133. 

3  Comp.  Stat..  3861. 


690  Probate  Law  and  Practice. 

one  executor  or  administrator  to  another  of  his  share  of  the 
commissions  allowed  in  gross  to  both." 

Notice  of  Application. 

Upon  the  adjustment  of  commissions  between  executors, 
administrators,  guardians  or  trustees,  the  orphans'  court  shall 
not  determine  the  matter  upon  the  application  of  some  or  one 
of  them  without  proof  that  not  less  than  five  days'  notice  of 
such  application  has  been  given  to  the  other  or  others."* 

Practice  on  Application. 

An  application  for  the  apportionment  of  commissions  be- 
tween executors  or  administrators  may  be  made  upon  proper 
notice  at  the  time  of  the  passing  of  the  account,  or  at  any 
time  thereafter.  A  general  allowance  of  commissions,  with- 
out directions  as  to  how  they  are  to  be  divided,  does  not  amount 
to  a  direction  that  they  should  be  divided  in  equal  shares  :  and 
where,  upon  the  passing  of  an  account  of  co-executors  or  ad- 
ministrators, a  general  allowance  of  commissions  is  made  to 
accountants,  without  direction  as  to  how  they  shall  be  divided, 
and  differences  thereafter  arise  between  the  co-executors  or 
administrators  as  to  the  division  of  the  commissions  so  allowed, 
the  proper  proceeding  is  not  by  application  to  open  the  decree 
allowing  the  commissions,  but  for  one  of  the  executors  or  ad- 
ministrators, upon  notice  to  the  others,  to  make  application  to 
the  court  under  section  133  of  the  Orphans'  Court  Act^^  for 
a  decree  apportioning  the  commissions  between  them.'''' 

Rate  of  Division. 

The  word  "services"  used  in  this  section  should  be  held  to 
mean  the  pains,  trouble  and  risk  bestowed  by  each  in  the  ad- 
ministration of  the  estate ;  and  an  executor  who  has  done  the 
principal  part  of  the  work,  collected  the  moneys,  made  all  the 
settlements  and  payments,  taken  care  of  the  securities,  and 
alone  accounted  for  the  estate  before  the  orphans'  court, 
should  be  allowed  double  the  amount  allowed  to  his  co-execu- 

■•''Mount  V.  Slack,  39  N.  J.  Eq.,  '^^Page  68q,  supra. 

230.  76Mount  V.  Slack.  45  N.  J.  Eq.. 

"^Orphans'  Court  Rule  24.  129.     Affirmed  ib..  889. 


Commissions.  691 

tor,  who  simply  made  a  few  journeys  in  behalf  of  the  estate, 
and  assisted  in  a  division  of  the  assets  among  the  next  of  kin."' 
So  where  there  are  two  executors,  and  each  one  appears  to 
have  discharged  his  duty  toward  the  estate  with  discretion 
and  fidelity,  the  commissions  should  be  divided  equally;"*'  but, 
as  has  been  seen,  a  general  allowance  of  commissions,  without 
directions  as  to  how  they  shall  be  divided,  does  not  amount  to 
a  determination  that  they  shall  be  divided  into  equal  shares.'* 
Where  one  of  two  executors  kept  all  of  the  moneys  of  the 
estate,  and  after  the  passing  of  their  account  entered  into  a 
litigation  as  to  the  division  of  commissions,  the  co-executor 
will  be  entitled  to  recover  from  the  executor  so  retaining  such 
commissions  interest  thereon  from  the  date  of  the  passing  of 
the  account.^'' 

Effect  of  Decree. 

When  the  court  at  the  time  it  fixes  the  amount  of  the  com- 
missions also  determines,  upon  due  notice,  the  proportions  in 
which  they  shall  be  divided  and  records  its  determination  on 
the  account,  the  action  of  the  court  amounts  to  a  judgment, 
and  will  not  be  changed  except  for  fraud  or  mistake.®^ 

FORFEITURE  OF   COMMISSIONS. 

In  General. 

Commissions  are  a  compensation  for  the  faithful  discharge 
of  duty;  and  when  executors  or  administrators  violate  that 
duty,  they  will  not  be  entitled  to  commissions.''-  Where,  how- 
ever, an  executor  has  not  been  guilty  of  any  intentional  wrong 
or  misconduct  in  the  discharge  of  his  ofticc,  he  will  not.  as  a 

''^'\ndress  v.  Andress,  46  N.  J.  s^w^arbass  v.  Armstrong,  10  N. 

Eq-  528.  J.  Eq.,  263.     McKnight  v.  Walsh.. 

'«Squier  v.  Squier,  30  N.  J.  Eq..  23  N.  J.  Eq.,  136.    Affirmed  24  N. 

627.     Pomeroy  v.  Mills,  40  N.  J.  J.    Eq.,    498.     Blauvelt    v.    Acker- 

^^•'  517-  man,  23  N.  J.  Eq.,  4(^5.     Affirmed^ 

7«Mount  V.  Slack,  45  N.  J.  Eq.,  25    N.    J.    Eq.,    570.      DuflFord    v.. 

129.    Affirmed  ib.,  889.  Smith.  46  N.  J.  Eq..  216-222.     In 

soPomeroy    v.    Mills,    40    N.    J.  re  Walsh's   Estate,  80  N    J    E<i 

Eq.,  517.  565-575. 

8J Mount  V.  Slack.  45  N.  J.  Eq..  sawilson  v.  Staats,  33  N.  J.  Eq., 

129.     Affirmed  ib.,  889.  524. 


692  Pkobatl;  Law  and  Practice. 

general  rule,  be  deprived  of  his  commissions,  even  though  the 
estate  has  suffered  loss  through  ill-advised  investments  made 
by  him  f^  and  so  where  an  accountant's  conduct  is  not  wilfully 
wrong,  and  he  has  not  confused  accounts  or  unwarrantably  used 
trust  moneys,  and  has  large  resources,  so  that  the  making  of  un- 
authorized investments  could  not  prejudice  the  interests  of  the 
cestui  que  trust,  the  fact  that  he  was  subject  to  surcharge  in 
certain  respects  is  insufficient  to  defeat  his  right  to  commis- 
sions.^* 

Mismanagement. 

'As  a  general  rule,  where  accountants  have  mismanaged  their 
trust,  kept  no  accounts  and  involved  the  estate  in  unnecessary 
trouble  and  expense,  they  will  not  be  allowed  commissions.*^ 
So  a  trustee  who  brings  into  court  an  account  manifestly  un- 
worthy of  credit  is  not  entitled  to  commissions.*"  So  com- 
missions were  denied  to  an  administrator  whose  accounts  were 
meagre  and  replete  with  inaccuracies  and  errors,  whose  testi- 
mony respecting  his  conduct  in  the  management  of  the  estate 
was  vague  and  unsatisfactory,  and  entirely  without  support 
in  its  professions  of  his  care,  prudence  and  good  faith,  who 
used  a  large  part  of  the  moneys  belonging  to  the  estate  for  his 
private  purposes,  and  whose  conduct  led  to  confusion  and  threw 
the  estate  into  expensive  litigation.*'  But  in  a  case  where  the 
relation  c5  guardian  and  ward  existed  between  a  mother  and 
-ler  infant  children,  commissions  were  allowed  her  on  rents 
•collected  from  realty  belonging  to  the  father's  estate,  of  whicn 
they  were  all  tenants  in  common,  though  the  guardian  did 
not  fully  perform  her  duties  in  regard  to  keeping  accounts, 
and  made  some  claims  against  her  wards  which  were  not  en- 
tirely sustained.** 

-   s^Babbitt  V.  Fidelity  Trust  Co..  Brown.   50  N.  J.   Eq..  3^7-     Fluck 

:72,N.  J.  Eq.,  745.  v.  Lake.  54  N.  J.  Eq..  638. 

S|5]vicKnight  V.  Walsh.  24  N.  J.  86£i,„er  v.  Loper.  25  N.  J.  Eq., 

Bq.,  498.     Polis  V.  Tice,,.28-N.  J.  475- 

^q..  432.    Dufford  v.  Smith,  46  N.  s^Fluck  v.  Lake,  54  N.  J.   Eq., 

J.  Eq.,  216.     Brewster  v.  Demar-  638. 

e?t,  48  N.  J.  Eq.,  559.     Welsh  v.  ssKeengy  y    Heoning.  64  N.  J. 

Eq.,    65.  ::^>  .       >-T.,r- 


I 


Commissions.  693 

As  a  general  rule,  where  executors,  who  are  directed  to 
invest  funds,  neglect  to  do  so.  commissions  will  not  be 
allowed  ;*''  and  so  an  executrix,  who,  pending  a  dispute  which 
inay  be  decided  adversely  to  her,  not  only  disposes  of  secur- 
ities, but  allows  funds  to  lie  idle,  has  not  faithfully  performed 
her  duty,  especially  where  the  estate  is  a  loser  by  reason  of  her 
management,  and  under  such  circumstances  commissions  will 
be  denied  f'^  but  an  executor  who  has  faithfully  discharged 
his  duties  will  not  forfeit  his  commissions  by  merely  keeping 
on  hand  larger  amounts  than  the  necessities  of  the  estate 
require,  but  which  he  does  not  personally  use."' 

Misconduct. 

An  accountant  who  has  been  guilt}'  of  misconduct  in  conr 
nection  with  the  estate  committed  to  his  care  will  usually  be 
denied  commissions;  fraud  or  misconduct  on  his  part  will 
always  justify  the  court  in  depriving  him  in  whole  or  in  part 
of  his  commissions,  the  matter  being  within  the  sound  dis- 
cretion of  the  court."-  So  where  the  course  of  an  adminis- 
trator is  irregular,  and  productive  of  danger  and  injury  to  the 
estate,  commissions  may  be  withheld.'-'^  A^'noil'-i  ■ 

Where  an  accountant  has  used  the  funds  of  the  estate  in 
his  own  business,  as  a  general  rule  no  commissions  will  be 
allowed  him.®*  So  where  a  trustee  appropriates  trust  funds 
to  his  own  use,  and  purchases  real  estate  therewith,  all  without 
the  knowledge  and  consent  of  the  cestui  que  trust,  and  when 
called  to  accoimt  sets  up  a  false  claim  for  greater  allowances  of 
credit  than  he  is  entitled  to,  he  should  not  be  allowed  com> 
missions  for  his  services  as  trustee.''^     But  where,  while  there 

s-'Warbass  v.  Armstrong,  10  N.  622.     Morris's  Case,  65  \.  J.  Eq.. 

J.  Eq.,  263.    Frey  v.  Frey,  17  N.  J.  699. 

Eq..  71.     McKnight  v.  Walsh,  23  ^-Frey's  Case,  73  N.  J.  Eq..  346. 

N.  J.  Eq.,  136.     Affirmed  24  N.  J.  »^Frey  v.  Frey,  17  N.  J.  Eq.,  71. 

Eq.,  498.  McKnight  v.  Walsh.  23  N.  J.  Eq.. 

''"'In  re  Walsh's  Estate,  80  N.  J.  136.     Affirmed  24  N.  J.  Eq.,  498. 

Eq.,  565-575-                  ...             •  Lathrop  v.  Smalley,  23  .N.  J.  Eq.. 

»iFrost    V.    Denman,    41    N.    J.  192.     Fluck  v.  Lake,  54  N.  J.  Eq.. 

Eq.,  47.  638.                                       .             ' 

»2Jacobus  V.  Munn,  38  N.  J.  E<1.,  "^McCulloch  v.  Tnnikins,  62  N. 

J.  Eq.,  262. 


694  Probate  Law  and  Practice. 

is  proof  that  one  of  the  executors  has  used  some  of  the  funds 
of  the  estate  in  his  own  concerns,  it  also  appears  that  he  has 
accounted  for  all  the  interest  on  the  money  so  used,  and  turned 
over  the  funds  of  the  estate,  satisfactorily  secured,  to  a  substi- 
tuted trustee,  so  that  no  loss  whatever  has  occurred  to  the 
estate  by  his  misconduct,  it  is  a  matter  for  the  exercise  of  the 
discretion  of  the  court  whether  to  allow  him  any  or -all  the  com- 
missions to  which  he  would  have  been  entitled  in  the  absence 
of  such  misconduct.''® 

An  executor  and  trustee  charged  with  the  care  and  renting 
of  real  estate  has  no  right  to  receive  for  his  personal  use  gifts 
in  money  from  those  employed  by  him  to  make  repairs,  or  from 
tenants.  In  ordinary  cases,  upon  proof  of  such  misconduct,  the 
trustee  should  be  deprived  of  commissions ;  but  when  the 
circumstances  show  that  his  services  have  been  such  that  the 
deprivation  of  all  commissions  would  impose  too  heavy  a 
penalty  for  the  ofifense,  the  court  will,  in  consideration  thereof, 
deprive  him  only  of  so  much  as  will  serve  to  mark  its  dis- 
approval of  his  conduct.""  Thus,  in  the  case  of  Post  v.  Stevens,^* 
commissions  at  the  highest  rate  were  allowed  executors, 
although  expense  and  litigation  were  caused  the  estate  by  the 
conduct  of  one  of  their  number  in  omitting  a  debt  due  from 
himself  to  the  testator ;  they  were,  however,  required  to  pay 
their  own  costs  of  the  litigation. 

Failure  to  Account. 

While  the  neglect  or  omission  to  file  accounts  will  always 
be  given  due  weight  in  considering  the  allowance  of  commis- 
sions, there  is  no  hard  and  fast  rule  that  the  mere  omission 
to  file  account  will  disentitle  the  accountant  to  compensation."" 
A  party  who  is  guilty  of  great  delay  in  presenting  his  accounts 
or  of  negligence  in  keeping  them,  will  not  be  heard  with  favor  ; 
yet  great  liberality  will  be  extended  where  the  transactions  re- 
late to  the  family  interests  of  both  parties.^  So  where  a  guardian 

96Morris's   Case,   65   N.   J.    Eq..  ^^Gilligan  v.  Daly.  79  N.  J.  Eq.. 

699.  36.  and  cases  cited  at  p.  40. 

^^Jacobus  V.  Munn,  38  N.  J.  Eq..  ^Morgan    v.    Morgan,   48   N.   J. 

622.  Eq.,  399.     Reversed  50  N.  J.  Eq., 

»8i3  N.  J.  Eq.,  293-295.  473. 


Commissions.  695 

of  minors  was  appointed  on  February  i,  1889,  and  kept  regu- 
lar accounts,  with  vouchers  for  disbursements,  and  was  always 
willing  to  submit  them  to  inspection,  his  delay  in  filing  formal 
accounts  until  191 1.  when  he  annexed  his  account  to  his  answer 
in  an  action  for  an  accounting,  was  not  so  unreasonable  as  to 
deprive  him  of  the  statutory  compensation.-  So  commissions 
were  allowed  to  an  executor  who  had  not  filed  an  account  for 
,^0  years,  but  who  had  handed  over  all  the  i)apers  of  the  estate 
to  his  co-executor  to  file  an  account,  and  who  supposed  that 
the  latter  had  done  so ;"  and  although  a  trustee  had  abused 
his  trust,  yet  he  was  compensated  for  special  and  extraordinary 
services  rendered  to  his  cestui  que  trust,  in  defending  him  on  a 
charge  of  murder.*  So  the  fact  that  an  executor  has  not  filed 
an  account  for  thirty  years  since  the  estate  was  settled  will 
not  of  itself  deprive  him  of  commissions  where  it  is  not  shown 
that  anything  is  due  to  legatees  or  creditors,  and  no  reason 
appears  why  they  could  not  have  compelled  him  to  account  f 
and  commissions  have  been  allowed  in  some  cases  where  the 
executor  or  administratcjr  was  held  to  be  in  laches,  but  had 
shown  no  bad  faith." 

Removal  from  Office.  • 

Any  executor,  administrator,  guardian  or  trustee  who  is 
removed  from  his  office  by  the  orphans'  court  for  any  cause 
for  which  he  may  be  removed  by  the  Orphans'  Court  Act,  shall 
forfeit  his  commissions  and  shall  not  be  entitled  to  any  com- 
missions, or  compensation  for  his  services,  unless  the  court 
shall  otherwise  direct.' 

2Gilligan  v.   Daly,  79  N-  J-  Eq..  •'•Wilson  v.  Staats,  ::^3  N.  J.  Eq., 

36.  324. 

"Birkholm  v.  Wardell,  42  N.  J.  'Orplians'   Court   Act,    sec.    134, 

Kq.,  337.  3  Conip.  Stat.,  3861.     See  also  Or- 

*Moore   v.    Zabriskie,    18    N.   J.  phans'  Court  Act,  sees.  64.  p.  365, 

Eq.,  51;  supra,  and  117,  P-  631.  supra. 

°In  re  Barcalow,  29  N.  J.  Eq., 
282.    Reversed  36  N.  J.  Eq.,  611. 


696  Probate  Law  and  Practice. 

APPEAL  FROM   DECREE  ALLOWING   COMMISSIONS. 
In  General. 

An  appeal  lies  from  an  order  fixing  the  amount  of  an  execu- 
tor's commissions  f  but  the  Prerogative  Court  will  not  exer- 
cise its  jurisdiction  to  review  the  decision  of  the  orphans'  court 
except  in  case  of  manifest  error  of  judgment.  Where,  how- 
ever, the  amount  of  commissions  allowed  executors  is  grossly 
inadequate,  it  is  the  duty  of  the  Ordinary  to  substitute  his  own 
judgment,  and  to  exercise  his  own  discretion  upon  the  subject- 
matter;''  but  where  a  guardian's  account  is  grossly  erroneous, 
and  he  made  no  application  for  commissions  to  the  orphans' 
court,  he  will  not,  on  appeal,  be  allowed  commissions  in  the 
Prerogative  Court. ^^' 

If,  on  an  appeal  from  a  decree  of  the  orphans'  court  opening 
an  account  and  determining  that  a  certain  sum  did  not  belong 
to  the  estate,  and  should  not  have  been  brought  into  the  ac- 
count by  the  executors,  and  reducing  commissions  computed 
thereon,  the  Prerogative  Court  reverses  that  part  of  the  decree 
of  the  orphans'  court  striking  out  such  sum  from  the  account, 
the  appellate  court  may  also  decree  that  the  commissions  struck 
out  by  the  orphans'  court  be  restored."    -  .. 

An  appeal  will  lie  to  the  Court  of  Errors  and  Appeals  from  a 
decree  of  the  Prerogative  Court  allowing  commissions. ^- 

Who  May  Appeal. 

The  statute  provides  that  any  person  aggrieved  by  an  order 
or  decree  of  the  orphans'  court  may  appeal  from  the  same  to 
the  Prerogative  Court. ^"  So  one  entitled  to  a  part  of  the 
surplus  of   an  intestate's   estate  may  appeal   from  the  order 

^Anderson    v.    Berry.    15    N.   J.  ^"In  re  Marcy.  24  N.  J.  Eq.,  45i. 

Eq.,  232.    Pomeroy  v.  Mills,  35  N.  ^i Stevenson  v.  Hart.  7  N.  J.  Eq.. 

J.    Eq.,   442.     Reversed   37   N.   J.  471. 

Eq.,   578.     Kingsland  v.   Scudder,  ^-Pomeroy    v.    Mills,    37    N.    J. 

36  N.  J.  Eq.,  284-286.  Eq.,  578. 

^Anderson   v.    Berry,    15    N.    J.  ^^Orphans'  Court  Act,  sec.  204. 

Eq.,  2^2.    Pomeroy  v.  Mills,  35  N.  3  Comp.  Stat.,  3889.     For  a  con- 

J.  Eq.,  442-445.     Reversed  37  N.  sideration  of  the  general   subject 

J.  Eq.,  578.  of   appeals,   see   "Appeals,"   p.  80. 

supra. 


Commissions.  697 

allowing  commissions;'*  and  an  administrator  of  an  estate, 
who  is  also  one  of  the  next  of  kin.  and  who  is  aggrieved  by  a 
decree  of  the  orphans"  court  awarding  excessive  commissions 
to  his  co-administrator,  may  appeal  therefrom,  though  the 
decree  also  awards  the  appellant  excessive  commissions.'"' 

i<Andress  v.  Andress.  46  X.   T.  i^Andress  v.   Andress.  46  N.  J. 

Eq..  528.  Eq.,  528. 


X  .. 


CHAPTER  XXIII. 
DISTRIBUTION. 
Time  for  Distribution. 

The  statute  provides  that  no  distribution  of  the  goods, 
chattels,  credits  and  personal  estate  of  any  person  dying  intes- 
tate shall  be  made  until  one  year  after  granting  administration 
thereof  unless  a  decree  barring  creditors  has  been  entered,  in 
which  case  such  distribution  may  be  made  whenever  twenty 
days  shall  have  elapsed  since  the  entry  of  such  decree  barring.^ 

MANNER  OF  DISTRIBUTION. 

The  whole  surplusage  of  the  goods,  chattels  and  personal 
estate  of  which  any  person  shall  die  intestate  shall  be  distri- 
buted in  manner  following,  that  is  to  say : 

I.     DISTRIBUTION    IN   CASE   THERE    BE   HUSBAND    OR 
WIDOW   AND    CHILDREN. 

Statutory  Provisions. 

One-third  part  of  the  said  surplusage  to  the  husband  or 
widow,  as  the  case  may  be,  of  the  intestate,  and  all  the  residue, 
by  equal  portions,  to  and  among  the  children  of  such  intestate, 
and  such  persons  as  legally  represent  any  of  such  children,  who 
may  be  then  dead,  other  than  such  child  or  children,  who  shall 
have  any  estate  by  the  settlement  of  the  intestate,  or  shall  have 
been  advanced  by  the  intestate  in  his  or  her  lifetime,  by  portion 
or  portions  equal  to  the  share,  which  shall,  by  such  distri- 
bution, be  allotted  to  the  other  children,  to  whom  such  distri- 
bution is  to  be  made.- 

The  statute  in  force  prior  to  this  amendment,^  provided  that 
the  widow  should  take  one-third  of  the  residue  of  the  estate, 

^Orphans'   Court   Act,   sec.    171.  advancements,  see  "Advancements 

3  Comp.  Stat..  3877.  and  Settlements,"  p.  699,  infra. 

^Orphans'   Court  Act,   sec.    169.  'P.    L.    1899,    p.    203.    3    Comp. 

3  Comp.   Stat.,  3874,   as  amended  Stat.,  3874.  sec.  169. 
by  P.  L.  1914,  p.  69,  sec.  3.     For 
further    provisions    in    regard    to 

698 


Distribution.  699 

and  it  was  held  that,  in  case  of  the  death  of  a  wife,  the  husband 
was  entitled  jure  mariti  to  all  of  the  residue  of  her  personal 
estate,  after  payment  of  debts.* 

Children  of  the  Half-Blood. 

This  section,  except  as  to  the  changes  made  by  the  amend- 
ments of  1914.  is  to  all  intents  and  purposes  the  same  as  the 
English  statute,  22  and  23  Car.  2.  Chap.  10,  under  which  it 
has  been  uniformly  held  that  brothers  and  sisters  of  the  half- 
blood  share  equally  in  the  distribution  of  the  estate  with  their 
l)rothers  and  sisters  of  the  whole-blood  f  and  the  same  rule 
has  been  adopted  in  this  state.''  It  is  necessary,  however,  to 
keep  clearly  in  mind  the  distinction  between  children  of  the 
half-blood  and  step-children ;  thus,  if  a  widower  with  children 
marries  a  widow  with  children,  and  children  are  born  of  the 
marriage,  upon  his  death  the  children  of  his  first  and  second 
marriage  will  stand  on  an  equal  footing  in  the  distribution  of 
the  estate,  to  the  exclusion  of  the  children  of  the  widow  bv  her 
first  marriage. 

ADVANCEMENTS  AND   SETTLEMENTS. 
Statutory  Provisions. 

The  statute,"  after  providing  that  no  child  or  children  shall 
participate  in  the  distribution  who  shall  have  any  estate  by  the 
settlement  of  the  intestate,  or  shall  have  been  advanced  by  the 
intestate  in  his  or  her  lifetime,  by  portion  or  portions  equal  to 
the  share  which  shall  by  such  distribution  be  allotted  to  the 
other  children  to  whom  such  distribution  shall  be  made,  further 
provides  that  in  case  any  child  shall  have  any  estate  by  settle- 
ment from  the  said  intestate,  or  shall  have  been  advanced  by 
the  said  intestate,  in  his  or  her  lifetime,  by  portion  not  equal 
to  the  share  which  will  be  due  to  the  other  children,  by  such 

<Donnington  v.  Mitchell.  2  N.  J.  coickinson's     Probate     Practice 

Eq..   243.     Stoutenburgh   v.   Hop-  (2d    Ed.)    164.     4   Griffitii's   Law 

kins.  43  N.  J.  Eq.,  577-     Affirmed  Register,  1256.    Griffith's  Treatise. 

45  N.  J.  Eq.,  890.  p.   200.     In   re  Estate  of  Adolpli 

'Jessop  V.  Watson,    i    Mylne  &  Spaeth,     Essex    Orphans'     Court, 

K.,  665.    Crooke  v.  Watt,  2  Vern.,  July,  1901,  Skinner,  J. 

124-  '^Orphans'   Court   .Act,    sec.    169, 

p.  698,  supra. 


joo  Probate:  Law  and  Practice. 

distribution  as  aforesaid,  then  so  much  of  the  surplusage  of  the 
estate  of  such  intestate  shall  l)e  distributed  to  such  child  or 
children,  as  shall  have  any  land  by  settlement  from  the  intes- 
tate, or  were  advanced  in  the  lifetime  of  the  intestate,  as  shall 
make  the  estate  of  all  the  said  children  to  be  equal,  as  near 
as  can  be  estimated. - 

In  General. 

The  purpose  of  the  provisions  of  the  statute  concerning 
advancements  is  to  preserve  that  equality  between  the  children 
of  an  intestate  which  is  not  only  equitable,  but  which  is  sup- 
posed to  consummate  the  desire  of  a  father  presumed  to  have 
an  equal  afifection  for  each  child.  \\'hen,  therefore  a  father, 
during  his  lifetime,  turns  over  to  one  child,  without  consider- 
ation, a  portion  of  his  property,  such  portion  is  regarded  as  a 
part  of,  or  as  the  entire  distributive  share  of  such  child,  given 
to  him  in  advance  of  his  parent's  death  ;  the  equality  in  the 
division  of  the  parent's  property,  which  the  parent  is  supposed 
to  desire,  raises  the  presumption  that  the  transfer  to  the  child 
is  an  advancement.^ 

So  long  as  the  property  transferred  to  the  child  is  the  prop- 
erty of  the  father,  or  is  purchased  with  the  property  of  the 
father,  the  presumption  of  advancement  exists.  If,  however,  it 
appears  that  the  property  transferred  to  the  child,  or  the  prop- 
erty with  which  such  property  is  bought,  is  property  which 
the  father  regards  as  belonging  either  legally,  equitably  or 
morally  to  the  child  so  favored,  to  the  exclusion  of  the  other 
children,  the  presumption  of  an  advancement  must  cease  to 
exist.  So  where  a  father  purchased  realty  for  his  son,  and  it 
was  testified  that  the  father  said  repeatedly  that  it  was  bought 
with  money  which  had  belonged  to  his  deceased  first  wife, 
the  mother  of  this  son,  and  a  brother  of  the  father  testified 
that  the  father  had  told  him  that  he  intended  to  keep  the 
money  of  his  first  wife  until  he  could  find  a  place  to  invest  it 
for  this  son,  and  that  after  the  property  in  question  was  pur- 

sQrphans'    Court   Act.   sec.    169.  sGrumley  v.  Gruniley.  63  N.  J. 

3   Comp.   Stat..  3874,  as  amended       Eq..  568. 
by  P.  L.  1914.  P-  69,  sec.  3. 


Distribution.  701 

chased  the  father  told  witness  that  it  was  paid  for  with  the 
money  of  the  first  wife,  and  during  the  life  of  the  first  wife. 
the  husband  had  purchased  two  houses  and  lots  and  put  the 
title  in  her  name,  and  in 'a  memorandum  of  a  will,  dictated 
some  months  before  his  death,  gave  all  his  interest  in  these  two 
houses  to  the  son.  and  the  rest  of  his  estate  to  his  second  wife 
and  her  children,  it  was  held  that  these  circumstances  were 
sufficient  to  show  that  the  property  purchased  for  the  son  was 
not  intended  as  an  advancement. ^° 

AMiether  a  gift  or  conveyance  is  to  be  regarded  as  an  ad- 
\  ancement  or  not.  depends  entirely  upon  the  intention  of  the 
donor  at  the  time  the  gift  was  made;'^  but  to  constitute  an 
advancement,  the  gift  must  be  irrevocable,  divesting  entirely  all 
of  the  ancestor's  interest,  so  that  the  subject  of  the  gift  forms 
no  part  of  the  property  to  be  administered.^-  Although  an  ad- 
vancement must  be  made  in  the  donor's  lifetime,  it  may  take 
efifect  only  at  his  death  ;  as  where  he  gives  an  estate  in  remain- 
der and  reserves  to  himself  a  life-estate,^^  or  gives  an  insin-ance 
policy  on  his  own  life.^*  So  a  provisioii  made  for  a  child  when 
it  shall  arrive  at  a  certain  age,  if  it  arrives  at  that  age,  is  an 
advancement :  and  it  is  sufficient  if  it  be  secured,  although  not 
advanced  in  the  lifetime  of  the  father,  nor  is  it  an  objection 
that  it  depends  upon  a  contingency.'^ 

Advancements  and  Loans  Distinguished. 

It  is  important  to  distinguish  between  an  advancement  and  a 
loan  ;  since,  in  the  case  of  an  advancement,  if  the  sum  advanced 
exceeds  the  share  in  the  intestate's  estate  of  the  child  so  ad- 
vanced, he  is  not  liable  to  the  estate  for  the  ditterence,  while, 
in  case  of  a  loan,  the  child  will  l)e  liable  to  the  estate  for  tlie 

'"Grumlcy  v.  (■.rumley,  63  N.  J.  J.  Eq.,  148-153.     Herkimer  v.  Mc- 

Ef|.,  568.  (iregor,    126    Ind.,    247-255.      Mil- 

^HVoerner    on     Administration,  ler's  Appeal,  31  Pa.  St.,  337. 

1217.     ^Matter  of  Morgan,   104  N.  '''Paliner  v.   Culbert.son,   143   N. 

Y.,   74.      Ruch   V.   P.iery,    no   Ind.,  Y.,  213.     38  N.  E.  Rep.,  199. 

444.     Comer    v.    Comer,    i  ig    111.,  ^■•Rickenbacker    v.    Zimmerman, 

170.  10  vS.  C,  no.    Cazassa  v.  Cazassa, 

'-Woerner    on     .Administration,  (j2  Tenn.,  573-580. 

1214.      Black   V.   Whitall,   9   N.   J.  i»Ed\vards  v.  Ereeman,  2  Peere 

Eq.,  572.    Aletcalfe  v.  Colles,  43  N.  Wms.,  435. 


702  Probate  Law  and  Practice. 

money  loaned  him  by  his  parent,  irrespective  of  whether  he  is 
entitled  to  a  distributive  share  in  his  estate  or  not.^" 

When  Child  Advanced  Predeceases  Testator. 

Where  a  child,  who  has  been  advanced,  dies  before  his 
parent,  leaving  children  him  surviving,  the  better  rule  appears 
to  be  that  in  cases  where  such  grandchildren  take  per  stirpes. 
or  in  right  of  their  parents,  they  take  subject  to  advancements 
to  the  parents,^^  but  that  it  is  otherwise,  where  they  take  per 
capita,  or  in  their  own  right. ^* 

Advancement  of  Personalty. 

Bonds,  and  mortgages  or  notes,  given  by  a  son  to  a  father, 
are  evidences  of  debt,  and  not  of  an  advancement,  unless  there 
is  proof  that  they  were  intended  as  advancements.  In  order 
to  show  that  a  security,  valid  upon  its  face,  held  by  a  testator 
or  intestate  at  his  decease,  against  one  of  his  children,  was  in- 
tended as  an  advancement,  it  must  clearly  appear  that  the 
decedent,  either  in  his  lifetime  or  by  his  will,  treated  it  as  a 
gift  and  advancement  to  his  child,  on  account  of  or  in  full,  of 
the  child's  share  in  his  estate.^"  The  case  of  JVanamaker  i'. 
Van  Buskirk,-'^  holding  that  a  bond  was  evidence  of  an  ad- 
vancement, has  been  distinguished  by  at  least  two  cases  f^  but 
where  a  father  at  various  times  gave  large  sums  to  his  son 
which  he  entered  upon  his  books  as  a  charge  against  him,  and 
it  was  shown  by  testimony  that  the  intestate  declared  that  said 

i''Sayre  v.  Sayre.  32  N.  J.  Eq.,  Smith,  59  Me.,  214.     Person's  Ap- 

61.     z\ffirmed   35    N.  J.   Eq.,   563,  peal,  74  Pa.  St.,  121-123. 

Lewis  V.  Lundy,  9  Atl.  Rep.,  883.  isPerson's    Appeal,    74    Pa.    St.. 

See   also   "Advancements  in   Gen-  121-123.       Skinner    v.    Wynne,    2 

eral."  p.  700.  supra.  Jones  Eq.  (N.  C),  41. 

'■\\'oerner    on    Administration,  i^D^^ygon  v.  Macknet,  42  N.  J. 
1216.       Proud     V.     Turner,     2    P.  Eq.,  633.     Beckhaus  v.  Ladner,  48 
Wms.,  560.     McRae  v.  McRae,  3  N.  J.  Eq.,  152.    Affirmed  50  N.  J. 
Bradf.,   199.     Quarles  v.  Quarles.  Eq.,  487. 
4   Mass.,  680.     Simpson   v.   Simp-  ^^i  N.  J.  Eq.,  685. 
son.  114  111.,  603.    Parsons  v.  Par-  -^See  Batten  v.  Allen.   5   N.  J. 
sons,  52  Ohio  St..  470.     40  N.  E.  Eq.,  99-104.  and  Dawson  v.  Mack- 
Rep..    165.     Earnest  v.   Earnest.   5  net,  42  N.  J.  Eq.,  633-635. 
Rawle    (Pa.),   213-219.     Smith  v. 


Distribution.  703 

amounts  were  charged  by  him  as  part  of  the  son's  share  in  his 
estate,  it  will  be  held  to  be  an  advancement.'- 

Advancement  of  Real  Estate. 

If  a  parent  pnrohases  land  and  causes  it  to  be  conveyed  to 
his  children,  it  is  prima  facie  an  advancement  to  them.-'''  and 
this^  even  though  he  hold  possession  himself,  and  make  im- 
provements on  the  land  ;-*  but  whether  a  conveyance  of  real 
estate  by  a  father  to  a  son  is  an  advancement  is  a  question  of 
intent,-^  and  such  intent  may  be  shown  by  parol  testimony,  or 
by  declarations  made  at  the  time  or  afterwards.-"'  or  may  be 
inferred  from  the  amount  and  character  of  the  gift.-' 

Where  the  purchase  money  for  real  estate  is  paid  by  a  parent, 
and  a  son  procures  the  deeds  to  be  made  to  him.  without 
the  knowledge  or  consent  of  the  parent,  the  son  cannot  set 
up  title  to  the  lands  as  an  advancement ;  in  such  case  the  un- 
interrupted possession  of  the  parent,  claiming  title  adversely 
to  the  deed,  wall  rebut  the  presumption  of  an  advancement  ;-* 
but  a  conveyance  of  lands  by  a  parent  to  one  of  his  children  for 
a  consideration  named  therein  of  natural  love  and  affection, 
or  for  a  nominal  consideration,  is  presumptively  an  advance- 
ment.-^ So  where  a  father  put  one  of  his  sons  in  possession  of 
lands,  which  he  occupied  for  twenty  years,  and  then  sold,  and 
the  father  made  the  deed  to  the  purchaser,  and  the  son  received 
the   consideration   money,   it   will  be  held   an   advancement.^" 

-^Tucker  v.  Tucker,  8  N.  J.  Eq..  T.  Eq..  577.    Affirmed  51  N.  J.  Eq., 

348.  597- 

-3 Partridge  v.  Havens,  10  Paige.  -"Speer  v.  Speer.   14  N.  J.  Eq., 

618.     Tremper  v.  Barton.  18  Ohio,  240. 

418.     Lewis's  Appeal,  127  Pa.  St.,  ^^Peer    v.    Peer,    11    X.    J.    Eq.. 

127.  432. 

24Bogy  V.  Roberts,  48  Ark.,  ij-  -^Ben  v.  McPeake,  2  N.  J.  L., 

2  S.  W.  Rep.,  186.  2gr.     Gordon  v.  Barkelew.  6  N.  J. 

25Peer   v.    Peer,    11    N.    J.    Eq.,  Eq..  94.     Hattersley  v.  Bissett,  50 

432.     Speer  v.  Speer,  14  N.  J.  Eq.,  N.  J.  Eq..  577.     Affirmed  51  N.  J. 

240.  Eq.,  597- 

-®Peer   v.    Peer,    11    N.   J.   Eq.,  ""Gordon  v.   Barkclcvv,  6  N.  J. 

432.    Speer  v.  Speer,  14  N.  J.  Eq.,  E(i..  94. 
240.     Hattersley  v.  Bissett,  50  N. 

46 


704  Probate  Law  and  Practice. 

Effect  of  Advancement  in  Cash  Upon  Share  in  Real  Estate. 

An  advancement  in  money  does  not  affect  the  share  of  a  son 
in  the  real  estate  of  the  intestate ;  only  advancements  of  land 
can  have  such  effect.^'^ 

Advancements  of  Land  to  be  Deducted  from  Distributive 
Share.  • 

Section  169  of  the  Orphans'  Court  Act,^-  provides  that  an 
advancement  of  lands  shall  be  deducted  from  distributive 
shares. ^^ 

Interest  on  Advancements. 

An  advancement  does  not  bear  interest.  The  apparent  in- 
equality created  by  the  length  of  time  which  the  advancement 
is  held  and  enjoyed  before  the  other  distributees  receive  their 
share  constitutes  no  ground  for  charging  the  advanced  distri- 
butee with  interest.  It  is  an  inequality  which  always  exists 
where  advancements  are  made  at  different  times  by  a  parent 
among  a  family  of  children. ^^ 

Agreements  Concerning  Advancements. 

\\'here  an  estate  is  insohent,  and  children  who  have  been 
advanced  agree  to  account  for  the  advancements  made  to  them, 
to  save  real  estate  from  being  sold,  such  agreement  will  be 
enforced  f^  and  a  written  contract  between  a  parent  and  child, 
whereby  the  latter,  in  consideration  of  money  advanced  to  him, 
agrees  to  make  no  claim  upon  his  father's  estate,  will  be  en- 
forced in  equity.^*'  Such  agreements,  when  they  concern  lands, 
are,  like  others,  subject  to  the  statute  of  frauds,  and,  unless 
they  are  in  writing,  cannot  be  enforced.^" 

siLinell  V.  Linell,  21   N.  J.  Eq.,  ^sSmith   v.   Axtell.   i   N.  J.   Eq., 

81-83.     Havens  v.  Thompson.  23  404. 

N.  J.  Eq..  321.     Green  v.  Hatha-  ^r.Havens  v.  Thompson,  26  N.  J. 

way,  36  N.  J.  Eq.,  471.  Eq..  3S3.     Green  v.  Hathaway,  36 

'-Page  698,  supra.  N.  J.  Eq.,  471-472.     Brands  v.  De- 

^•''Havens  v.  Thompson,  23  N.  J.  Witt,  44  N.  J.  Eq.,  545. 

Eq.,  321-323.  3'Brands    v.    DeWitt.    44    N.    J. 

3*Wanamaker   v.    Van    Buskirk,  Eq.,  545. 
I  N.  J.  Eq..  685.    Black  v.  Whitall, 
9  N.  T.  Eq.,  S72. 


Distribution.  705 

II.     DISTRIBUTION   IN  CASE  THERE  BE  HUSBAND  OR 
WIDOW,  AND  NO  CHILDREN. 

Statutory  Provision. 

In  case  there  he  no  children,  nor  any  legal  representative  of 
them,  then  the  whole  of  the  said  estate  shall  he  allotted  to  the 
husband  or  widow,  as  the  case  may  be.  of  the  said  intestate."''' 

History  of  Legislation. 

The  provisions  of  this  section  of  the  distribution  act  ha\e 
been  changed  so  frequently  during  the  last  fifteen  years,  that  a 
knowledge  of  these  various  changes  is  necessary  in  distributing 
the  estates  of  persons  who  have  died  during  that  period. 

In  its  original  form,  the  statute  provided  that  in  case 
there  be  no  children,  nor  any  legal  representatives  of  them, 
then  one  moiety  of  the  said  estate  shall  be  allotted  to  the 
widow  of  the  said  intestate  and  the  residue  of  the  said  estate 
shall  be  distributed  equally  to  every  of  the  next  of  kindred  of 
the  intestate,  who  are  in  equal  degree  and  those  who  repre- 
sent them,  provided,  that  no  representation  shall  be  admitted 
among  collaterals  after  brothers'  and  sisters'  children  f^  and  it 
was  held  that  the  effect  of  this  proviso  was  to  limit  or  qualify 
the  right  of  representation  among  collaterals,  so  that  they  could 
take  only  as  next  of  kin,  per  capita,  except  in  the  one  case  of 
the  children  of  the  deceased  brothers  and  sisters  of  the  intes- 
tate, among  whom  alone  of  collaterals  the  right  to  take  per 
stirpes  by  way  of  representation  exists.*" 

In  1899,  the  legislature  amended  this  section  by  repealing  the 
I)roviso  that  no  representation  should  be  allowed  after  brothers' 
and  sisters'  children,  and  the  effect  of  this  repealer  was  con- 
sidered in  the  case  of  Smith  v.  McDonald.*^  In  that  case,  it 
was  hehl  that  section  168  of  the  Orphans'  Conrt  Act  '-  directed 

'^Orphans'  Court   .\ct.   sec.   169.  32    N.    J.    Eq.,    177.      Wagner    v. 

,3   Comp.   Stat.,  3874,   as  amended  Sharp,  33  N.  J.  Eq.,  520.    Hayes  v. 

by  P.  L.  1914.  P-  69,  sec.  3.  King,    ^y    N.   J.    Eq.,    i.      Fisk   v. 

39P.    L.    1898,    p.    779,   3    Comp.  Fisk,  60  N.  J.  Eq..  IQ5. 

Stat.,  387s,  sec.  169,  par.  II.  .^169  N.  J.  Eq.,  765.     .\ffirmcd  71 

***Scudder  v.  Vanarsdale,  13  N.  N.  J.  Eq.,  261. 

J.  Eq.,  109.     Davis  v.  Vanderveer,  ^-Page  716.  supra. 
23  N.  J.  Eq.,  558.    Welsh  v.  Crater, 


yo6  Probate  Law  and  Practice. 

distribution  to  next  of  kin  "in  equal  degrees,  or  legally  repre- 
senting their  stocks" ;  which  means  that  representation  is 
to  be  limited  to  those  representing  the  stock  of  the  next  of 
kin  as  ascertained  by  the  rule  of  computation  prevail- 
ing under  the  civil  law,  the  accepted  method  in  this  state  for 
determining  the  degree  of  kinship.  This  section  must  be  read 
in  connection  with  sub-division  three  of  section  169  of  the  act 
of  1898/'  and  the  words  "their  legal  representatives"'  in  the 
latter  clause  must  be  taken  to  mean  legal  representatives  of 
their  stock ;  and  having  found  a  common  ancestor  of  the  in- 
testate and  the  living  next  of  kin,  the  logical  conclusion  is  that 
the  nearest  class  of  kinsmen,  descending  from  that  ancestor, 
together  form  the  stock  to  which  representation  is  limited. 
That  the  words  "next  of  kin,"  as  used  in  the  statute,  means 
living  persons,  cannot  be  questioned.  There  must  be  someone 
in  being  whose  proximity  in  blood  will  give  title  to  the  personal 
estate ;  and  in  ascertaining  those  persons,  we  count  upward 
from  either  of  the  parties  related,  to  the  common  stock  and 
then  downward  again  to  the  other  reckoning  a  degree  for  each 
person  ascending  and  descending,  and  having  found  the  nearest 
livmg  next  of  kin  we  have  reached  the  stock  entitled  to  the  fund 
.among  whom  alone  representation  exists.  If  there  should  be 
no  issue,  or  parents,  the  estate  would  go  to  the  brothers  and 
sisters  and  their  representatives  :  in  that  case,  all  the  brothers 
and  sisters  would  form  a  complete  stock,  and  on  the  death  of 
one  leaving  children,  these  children  would  take  by  represen- 
tation. So  if  some  first  cousins  are  living,  they  being  the  only 
next  of  kin,  they  constitute  the  stock  entitled  to  representation, 
and  there  being  no  great-uncles  or  great-aunts  living,  first 
cousins  and  the  representatives  of  deceased  persons  of  that  class 
take  to  the  exclusion  of  the  descendants  of  the  deceased  great- 
uncles  or  great-aunts.** 

In  1908,  this  section  was  again  amended  so  as  to  read,  "In 
case  there  be  no  children,  nor  any  legal  representative  of  them, 
then  the  whole  of  the  said  estate  shall  be  allotted  to  the  widow 
of  said  intestate.*^ 

43Page  698,  supra.  261.     See  also  Shedaker's  Case.  74 

**Smith  V.  McDonald.  69  N.  J.       N.  J.  Eq.,  802. 
Bq.,  765-     Affirmed  71  N.  J.  Eq.,  *5P.  L.  1908,  p.  643,  par.  11.     3 

Comp.  Stat.,  3875. 


Distribution.  707 

III.     DISTRIBUTION  OF  ESTATE  OF  DECEASED 
UNMARRIED  CHILD. 

Statutory  Provisions. 

If  there  be  no  husband  or  widow,  as  the  case  may  l)e,  then 
all  of  the  said  estate  to  be  distributed  equally  to  and  among 
the  children  ;  and  in  case  there  be  no  child,  nor  any  legal  repre- 
sentative of  any  child,  then  equally  among  the  parents  and 
brothers  and  sisters,  except  where  the  intestate  is  a  minor, 
in  which  case  all  of  the  said  estate  shall  be  allotted  to  the 
parents,  if  living,  but,  if  not,  then  to  the  brothers  and  sisters 
equally." 

Under  the  former  act,  it  was  held  that  upon  the  death  of  a 
child  without  issue,  or  those  who  represent  them,  the  father 
would  take  to  the  exclusion  of  all  others.*' 

IV.    WHEN  COLLATERAL  KINDRED  TAKE. 

Statutory  Provisions. 

If  there  be  no  husband  or  widow,  child  or  any  legal  repre- 
sentative of  any  child,  nor  a  parent,  brother  or  sister,  then  all  of 
the  estate  to  be  distributed  equally  to  the  next  of  kindred,  in 
equal  degree,  of  or  unto  the  intestate  and  their  legal  represen- 
tatives as  aforesaid.^® 

DISTRIBUTION  IN  CASE  OF  DEATH  OF  NEXT  OF  KIN 
AFTER    INTESTATE. 

In  General. 

When  next  of  kin  die  after  their  intestate,  but  before  actual 
distribution  of  his  estate,  their  shares  are  payable  to  their 
personal  representatives  ;^'-^  and  the  shares  of  such  deceased 
next  of  kin  should  be  held  until  an  administrator  upon  their 
estate  is  duly  appointed. ^° 

^•^Orphans'  Court  Act,  sec.   169,  ^sOrphans'  Court  Act,  sec.  169. 

3  Comp.   Stat.,  3874,  as  amended  3   Comp.   Stat.,  3874,  as  amended 

by  P.  L.  1914,  p.  69,  sec.  3.   Qncere.  by  P.  L.  1914,  p.  69,  sec.  3. 

Do  the   representatives   of   a   de-  ■•'•'Gill  v.  Roberts,  23  N.  J.  Eq., 

ceased  brother  or  sister  take  un-  474.     Rose  v.  Clark,  8  Paige,  574. 

der  this  act?  F.state  of  Black,  Tucker,  145. 

^^Sanderson's    Case,    28    N.    J.  ^"Matter    of    Lane,    2    Connol}', 

Eq,.  433.  266,  20  N.  Y.  Sup..  78. 


7o8  Probate  Law  and  Practice;. 

Method  of  Calculating  Degrees  of  Kindred. 

In  New  Jersey,  the  civil  law  rule  of  calculating  degrees  of 
consanguinity  is  resorted  to.^^  The  method  of  computing 
degrees  of  kindred  by  this  rule  is  to  count  upward  from  either 
of  the  parties  related,  to  the  common  stock,  and  then  downward 
again  to  the  other,  counting  a  degree  for  each  person,  both 
ascending  and  descending;  or,  in  other  words,  toi  take  the  sum 
of  the  degrees  in  both  lines  to  the  common  ancestor.  Thus, 
one  is  related  to  his  cousin  in  the  fourth  degree,  because,  follow- 
ing the  rule  of  computation,  from  himself  to  his  father  is  one 
degree ;  from  his  father  to  the  common  ancestor,  the  grand- 
father, two  degrees ;  then  descending  from  the  grandfather 
to  the  uncle  is  three  degrees,  and  to  the  cousin  four  degrees. ^- 

V.     DISTRIBUTION  OF  ESTATE  OF  MOTHER  OF 
ILLEGITIMATE  CHILD. 

Statutory  Provisions. 

If  the  mother  of  any  illegitimate  child  or  children  not  em- 
braced within  the  class  mentioned  in  paragraph  VI  of  the 
statute  of  distribution,-'"  shall  die  without  leaving  a  husband 
surviving  her,  and  leaving  no  lawful  issue,  or  the  issue  of  any, 
then  the  surplusage  of  her  goods,  chattels  and  personal  estate 
shall  be  distributed  equally  to  and  among  such  illegitimate 
child  or  children.^"* 

Construction  of  Statute. 

The  operation  of  this  section  is  confined  to  the  transmission 
of  goods,  chattels  and  personal  estate  of  a  mother  to  her  ille- 
gitimate child,  when  she  dies  without  leaving  husband,  or 
lawful  issue,  or  the 'issue  of  any.  By  its  express  terms,  the 
legislation  is  limited  to  the  property  of.  the  mother,  and  does 
not  extend  to  property  which  never  became  the  mother's.  So 
where  an  intestate  left  him  surviving  two  children,  and  it  was 
made  to  appear  that  the  intestate  also  had  a  daughter  who 

siSchenck  v.  Vail.  24  N.  J.  Eq.,  "'-'See  p.   709,  infra. 

538.  540rphans'  Court  Act,  sec.  169, 

s^Smith  V.  McDonald,  69  N.  J.  3   Comp.   Stat.,  3874.   as  amended 

Eq.,  765.     Affirmed  71   N.  J.  Eq..  by  P.  L.  1914.  p.  69,  sec.  3. 
261.     See  also  "History  of  Legis- 
lation,"' p.  705.  supra. 


Distribution.  709 

predeceased  him,  leaving  a  child  horn  out  of  lawful  wedlock, 
it  was  held  that  such  child  was  not  entitled  to  participate  in 
the  distribution  of  intestate's  estate.''" 

The  lawful  issue  of  an  illegitimate  child  who  predeceased  her 
putative  father  will  he  excluded  from  the  distribution  of  his 
estate.''"' 

VI.     WHEN    ILLEGITIMATE    CHILD    TAKES. 

Statutory  Provisions. 

Any  child  heretofore  or  hereafter  born  out  of  the  bonds 
of  matrimony  shall  become  legitimated  whenever  the  natural 
parents  of  such  child  shall  have  married  the  one  with  the  other, 
or  shall  hereafter  so  marry  each  other,  and  such  child  shall  have 
been  or  shall  be  recognized  and  treated  by  such  parents  as 
their  child. 

Any  such  child  so  legitimated  as  aforesaid  shall  be  entitled 
to  all  the  rights  and  privileges  such  child  would  have  enjoyed 
had  he  been  born  after  any  such  marriage,  the  intention  of  this 
act  being  that  the  status  of  any  such  child  after  such  marriage 
of  his  natural  parents  shall  be  the  same  as  if  such  child  were 
born  within  wedlock. ■"*' 

VII.      DISTRIBUTION    OF    ESTATE    OF    ILLEGITIMATE 

CHILD. 

Statutory  Provisions. 

The  whole  surplusage  of  the  goods,  chattels  and  personal 
estate  of  any  illegitimate  person  who  shall  die  intestate  and 
unmarried,  and  leaving  no  lawful  issue,  or  the  issue  of  any, 
him  or  her  surviving,  shall  go  to  and  be  paid  over  to  the  mother 
of  such  illegitimate  person  ;  and  if  the  mother  shall  have  died 
before  such  illegitimate  child,  the  next  of  kin  of  the  mother 
shall  take  in  the  same  manner  as  though  the  deceased  child 
had  been  legitimate. •'^^^ 

ssVoorhees   v.   Sharp,   63    N.   J.  Coinp.  Stat.,  3874.  as  amended  by 

Eq.,  216.  P.  L.  1914.  P-  69,  sec.  3. 

''•'Bussom   V.   Forsytli,  32  N.   J.  •'■'^Orplians*  Court  Act,  sec.   169. 

Eq.,  277.  3   Comp.  Stat.,  3874,  as  amended 

57P.  L.    1915,   p.   ZZZ-     See  also  by  P.  L.  1914,  p.  69,  sec.  3. 
Orphans'    Court    Act,    sec.    169,   3 


710  Probate  Law  and  Practice. 

DISTRIBUTION  IN  CASE  OF  PARTIAL  INTESTACY. 

What  Constitutes  Partial  Intestacy. 

Where  testator  by  his  will  gives  a  legacy  which  lapses,  and 
without  making  any  disposition  of  the  residue  of  his  estate,  he 
will  be  held  to  have  died  intestate  as  to  such  legacy.^**  So%vhere 
the  testator  gave  the  income  of  a  portion  of  his  estate  to  his 
son  for'  life,  but  did  not  dispose  of  the  corpus  in  a  certain 
contingency,  it  will,  in  case  the  contingency  occurs,  go  to  tes- 
tator's heirs,  if  realty,  or  next  of  kin,  if  personalty.*^"  So 
where  ain  estate  is  given  to  a  trustee  upon  certain  trusts,  and 
the  purposes  of  the  trust  do  not  exhaust  the  whole  estate,  or 
the  trust  fails,  a  trust  will  result  in  favor  of  those  who  are  en- 
titled under  the  statute  of  distribution. '^^ 

Where  a  testatrix  bequeathed  three  legacies  of  one  hundred 
dollars  each  to  persons  named,  and  five  hundred  dollars  to  a 
grandchild,  and  the  residue  of  the  property  was  given  to  the 
executor  "in  trust  for  the  execution  of  my  will,"  with  power 
to  sell  and  dispose  of  the  same,  and  without  making  any  further 
disposition  of  the  residue  it  was  held  that  as  to  the  estate 
remaining  after  the  payment  of  the  legacies  the  testator  died 
intestate,  and  the  same  must  be  distributed  in  the  manner  pro- 
vided by  law  for  the  distribution  of  the  property  of  an  in- 
testate f~  and  where  a  specific  share  of  the  residue  of  an  estate 
is  given  to  a  legatee,  and  it  lapses  by  such  legatee's  death  in 
the  testator's  lifetime,  such  share  does  not  sink  into  the  residue, 
but  as  to  it  the  testator  died  intestate.*^^ 

Distribution  in  Case  of  Partial  Intestacy. 

In  case  of  partial  intestacy,  the  persons  entitled  take,  not  in 
pursuance  of  the  intention  of  the  testator,  but  by  force  of  law, 
and  regardless  of  what  his  intentions  may  have  been  f^  and,  in 
the  absence  of  any  express  directions  in  the  will,  the  estate 

59Dildine    v.  Dildine,    32   N.    J.  62\Yhite    v.    Grossman,    64    Atl. 

Eq.,  78.  Rep.,  168. 

eoMulford  v.  Mulford,  42  N.  J.  e^Ward  v.  Dodd,  41   N.  J.  Eq.. 

Eq.,  68. '  414. 

^^Skellenger  v.    Skellenger.    32  64Skellenger    v.    Skellenger,    32 

N.  J.  Eq.,  659.  N.  J.  Eq.,  659. 


Distribution.  711 

\vill  pass  in  the  proportions  prescribed  by  the  statute.*^^  Thus, 
the  widow  is  entitled  to  participate  in  the  distribution  of  that 
part  of  the  testator's  estate  as  to  which  he  dies  intestate,  even 
though  she  has  received  and  accepted  a  legacy  in  lieu  of 
dower  ;'''■  so  a  bequest  of  testatrix's  personal  estate  to  her  hus- 
band "'for  his  use  during  his  natural  life."  will  not  deprive  him 
or  his  personal  representatives  of  his  right  to  the  remainder 
under  the  law  of  intestacy,  if  no  disposition  is  made  thereof 
l)y  testatrix  f'  and  where  a  legacy  is  given  to  a  nephew  "as 
his  full  portion  of  testator's  estate,"  this  will  not  deprive  him  of 
his  interest  as  heir-at-law  or  next  of  kin,  of  the  testator  in 
property  of  which  the  testator  died  intestate.*^^ 

VIII.      DISTRIBUTION    IN    CASE    THERE    BE    NO    HUS- 
BAND, WIDOW  OR  KINDRED. 

Investment  for  Use  of  Poor, 

If  any  person  has  died  or  shall  die  intestate,  leaving  no  hus- 
band or  widow,  as  the  case  may  be.  and  no^known  kindred 
or  relatives,  the  administrator  or  administrators  of  the  estate 
shall  at  the  expiration  of  one  year  after  the  death  of  such  in- 
testate, put  the  surplus  of  said  estate,  after  payment  of  debts 
and  necessary  expenses,  out  at  interest,  and  pay  the  net  inter- 
est or  income  thereof  annually  to  the  treasurer  of  the  municipal- 
ity in  which  said  intestate  had  his  or  her  legal  residence,  or, 
if  a  non-resident,  in  which  such  intestate  has  so  died  or  shall 
so  die,  to  and  for  the  use  of  the  poor  of  said  municipality  and 
shall,  whenever  applied  to  for  that  purpose,  pay  the  principal 
of  such  personal  estate,  if  thereto  required  by  the  judgment 
or  decree  of  any  court  of  competent  jurisdiction,  within  seven 
years  next  after  the  decease  of  such  intestate,  to  his  or  hex 
legal  representative  or  representatives  applying  for  the  same, 
by  assigning  to  him,  her  or  them  the  bond  or  other  security 
therefore,  or  by  otherwise  satisfying  him,  her  or  them  for  the 
same ;  and  if  no  person  or  persons  legally  entitled  to  the 
personal  estate  of  such  intestate  shall,  within  the  said  seven 

•"'•■^Scudder  v.  Vanarsdale,  13  N.  ""Nelson    v.    Nelson.    57    N.    J. 

J.  Eq.,  109.  Eq..  118. 

C'Skellenger    v.    Skellenger,  32  "^Ward  v.   Dodd.  41   N.  J.  Eq., 

N.  J.  Eq.,  650.  414. 


712  Probate  Law  and  Practice. 

years  next  after  his  or  her  decease,  make  application  as  afore- 
said to  such  administrator  or  administrators  for  the  said 
principal,  he,  she  or  they  so  entitled  shall  forever  there- 
after be  debarred  from  all  right,  title  or  claim  to  such  de- 
cedent's personal  estate,  and  the  said  administrator  or  ad- 
ministrators shall,  immediately  after  the  expiration  of  the 
said  seven  years,  pay  the  whole  of  the  said  principal,  with  the 
interest  that  may  then  be  due  thereon,  to  the  treasurer  of  the 
municipality  in  which  said  intestate  had  his  or  her  legal  resi- 
dence, or,  if  a  non-resident,  in  which  such  intestate  died,  to  and 
for  the  use  of  the  poor  of  the  said  municipality ;  provided, 
ahvays,  that  the  right  of  foreigners,  by  treaty,  shall  not  be 
affected  by  anything  in  this  section  contained/'" 

Payment  of  Money  into  Court. 

^Vhenever  any  executor,  administrator,  assignee  or  trustee 
shall  have  stated,  or  shall  hereafter  state,  his  final  account  of 
the  estate  in  his  hands  in  the  prerogative  court  or  in  any  of 
the  orphans'  courts  of  this  state,  and  there  shall  be  remaining 
in  his  hands  any  balance,  legacy,  residuary  share,  dividend 
sum  or  svuns  of  money  to  be  paid  to  any  legatee,  distributee, 
creditor  or  other  person  or  persons,  and  the  said  legatee,  dis- 
tributee, creditor  or  other  person  or  persons,  or  any  guardian 
of  any  such  person,  in  case  he  or  she  shall  be  an  infant  or 
under  any  disability,  shall  not  appear  and  claim  or  have  ap- 
peared and  claimed  the  moneys  so  due  to  him,  her  or  them 
respectively  within  three  months  from  the  time  of  the  passing 
of  the  said  final  account  by  the  said  court  in  which  the  same 
was  stated  and  allowed,  the  said  executor,  administrator,  as- 
signee or  trustee  may  pay  the  said  share,  legacy  or  sum  of 
money  into  the  court  in  which  said  account  was  stated,  taking 
therefor  the  receipt  of  the  surrogate  or  clerk  of  said  court ; 
and  said  receipts  shall  be  a  full  and  sufficient  discharge  and 
release  to  the  said  executor,  administrator,  assignee  or  trustee 
for  the  moneys  so  by  him  paid  into  court  and  against  the  claim 
or  demand  of  the  said  legatee,  distributee  or  creditor  so  en- 
titled to  receive  the  same ;    and  said  receipt  mav  be  recorded 

^^Orphans'  Court  Act,  sec.  169.       by  P.  L.  1914.  p.  69,  sec.  3. 
3   Comp.    Stat.,   3874,   as   amended 


Distribution.  713 

in  the  office  of  tlie  clerk  or  surrogate  of  said  court  in  the  same 
manner  as  releases  for  legacies  and  distributive  shares  are 
now  authorized  to  be  recorded  :  provided,  that  the  said  execu- 
tor, administrator,  assignee  or  trustee,  ui)on  payment  of  the 
said  moneys  into  court,  shall  file  therewith  an  affidavit  that  he 
has  made  diligent  inquiry  for  the  residence  and  post-office  ad- 
dress of  the  person  or  persons  entitled  to  receive  such  moneys, 
and  has  not  been  able  to  ascertain  the  same  :  or  that,  having 
ascertained  such  residence  and  post-office  address,  he  has, 
either  personally  or  by  letter,  duly  mailed  to  such  residence 
and  post-office  address  of  the  person  or  persons  entitled  to 
receive  such  moneys,  notified  such  person  or  persons  to  ap- 
pear and  receive  the  same,  which  notice  shall  have  been  given 
at  least  twenty  days  before  the  payment  of  such  moneys  into 
court  as  aforesaid.'" 

Disposition  of  Moneys  by  Clerk. 

The  surrogate  or  clerk  of  the  court  to  whom  any  money  shall 
have  been  paid  in  pursuance  of  tiie  preceding  section  of  this 
act,  shall  deposit  the  same  in  some  responsible  bank,  savings 
bank  or  trust  company,  to  be  designated  by  the  court,  to  the 

credit  of  "the  orphans'  court  of  the  county  of ," 

or  "the  prerogative  court  of  the  state  of  Xew  Jersey,"  as  the 
case  may  be,  the  same  to  be  drawn  from  said  bank  upon  the 
check  of  the  surrogate  or  clerk  of  said  court,  countersigned  by 
the  presiding  judge  or  ordinary.'^ 

Application  for  Moneys  Paid  into  Court. 

Any  person  or  persons  entitled  to  have  or  receive  any  legacy, 
distributive  share  or  sum  of  money  by  any  executor,  adminis- 
trator, assignee  or  trustee,  paid  into  court  in  pursuance  of  the 
first  section  of  this  act,  may  obtain  the  same  by  petition  di- 
rected to  the  court  in  which  the  said  account  was  stated  and 
moneys  deposited,  setting  forth  his,  her  or  their  right  and  title 
to  the  same,  whereupon  the  court  may  make  such  order  for 

70P.  L.   1905,  P-  2,77.     2  Comp.  '^P.  L.   1899.  p.  353.   sec.  2.     2 

Stat.,  2272,  sec.  38.  Comp.  Stat.,  2272,  sec.  39. 


714  PKOBATii  Law  and  Practice. 

the  payment   of   such   mone\s   and   accrued   interest   to   such 
claimant  as  it  may  deem  proper. '- 

NECESSITY  FOR  AND  NATURE  OF  REFUNDING  BOND. 

I      1 
I 

Refunding  Bonds  to  be  Given  by  Distributees. 

Every  person  to  whom  any  distribution  or  share  of  the 
goods,  chattels  and  personal  estate  of  any  intestate  shall  be 
allotted,  shall  give  bond,  in  double  the  sum  at  least  of  such 
distributive  share,  to  the  administrators,  with  condition  that 
if  any  debt  or  debts,  truly  owing  by  the  intestate,  shall  be 
afterwards  sued  for  and  recovered  or  otherwise  duly  made  to 
appear,  and  which  there  shall  be  no  other  assets  to  pay,  that 
then  and  in  every  such  case  he  or  she  shall  respectively  refund 
and  pay  back  to  the  administrators  his  or  her  ratable  part  of 
such  debt  or  debts  and  of  the  cost  of  suit  and  charges  by  reason 
of  such  debt  or  debts,  out  of  the  part  and  share  so  allotted 
to  him  or  her ;  thereby  to  enable  the  said  administrators  to 
satisfy  such  debt  or  debts ;  which  bond  shall  be  good  and  suffi- 
cient if  signed  and  executed  by  the  next  of  kin  giving  the  same, 
or  guardian  of  such  next  of  kin,  without  any  sureties  what- 
ever.'^^ 

Nature  of  Refunding  Bond. 

A  refunding  bond  does  not  create  the  duty  or  obligation  to 
refund;  that  exists  in  the  essential  principles  of  the  law  itself. 
That  duty  or  obligation  is  the  condition  or  trust  upon  which 
the  legatee  receives  the  legacy,  and  the  bond  is  merely  to  secure 
the  performance  of  that  condition  or  trust ;  and  therefore,  if 
such  bond  should  not  be  taken,  it  does  not  by  any  means  follow 
that  the  duty  ceases,  or  the  obligation  is  discharged.  It  is  a 
general  principle  that  if  there  be  a  deficiency  of  assets,  without 
waste,  and  the  executor  pay  one  legatee  in  full,  the  other  lega- 
tees, as  well  as  the  creditors,  may  ultimately  follow  the  assets 
into  the  hands  of  such  legatee,  and  compel  him  to  refund  for 
their  benefit ;   and  if,  through  misapprehension  or  mistake,  an 

"i^P.  L.   1905,  p.  378.     2  Comp.  '^Orphans'  Court  Act,  sec.   172. 

Stat.,  2272,  sec.  40.  3  Comp.  Stat.,  3877. 


Distribution.  715 

executor  pay  a  legacy  in  full,  and  debts  are  afterwards  dis- 
covered, of  which  he  had  no  notice,  or  if  losses  are  sustained 
upon  outstanding  risks,  responsibilities  or  contingencies,  which 
no  common  prudence  could  forsee  or  prevent,  so  that  the  estate 
becomes  insufficient  to  pay  all,  such  legatee  is  bound  not  only 
c.v  aequo  ct  bono,  but  also  upon  the  implied  condition  on  which 
he  received  his  legacy,  to  refund.'^* 

Debts  Included  Within  Condition  of  Bond. 

The  debts  for  the  discharge  of  which  the  legatee  is  bound 
to  return  the  legacy  under  the  condition  of  the  bond  are  debts 
contracted  by  decedent ;  claims  of  an  executor  for  commissions 
and  expenses  in  the  settlement  of  the  estate,  or  a  balance  found 
tlue  to  the  executor  on  settlement  of  his  accounts,  are  not 
within  the  condition  of  the  bond.  If,  however,  the  executor  has 
exhausted  all  of  the  personal  estate  in  paying  debts,  expenses 
of  administration  and  a  legacy  in  full,  and  debts  are  after- 
wards discovered,  the  executor  will  be  entitled  to  call  upon 
the  legatee  to  refund  for  the  ])ayment  of  such  newly  discovered 
debts.'-^ 

Suit  upon  Bond — Pleading. 

In  an  action  on  a  refunding  bond,  the  executor  must  aver  and 
prove  notice  to  the  legatee  of  the  debts,  and  a  request  to  return 
so  much  of  the  legacy  as  may  be  necessary  to  discharge  those 
debts ;  but  it  is  not  necessary  to  aver  that  there  were  no  other 
legacies  to  abate.''' 

RECEIPTS  FOR  LEGACIES  AND  DISTRIBUTIVE  SHARES 
MAY  BE  RECORDED— RECORD  AS  EVIDENCE. 

Statutory  Provisions. 

Every  executor,  administrator,  guardian  or  trustee  who 
liath  paid  or  shall  hereafter  pay  any  legacy,  distributive  share 
or  sum  of  money  to  any  person  or  persons  entitled  by  law  to 
receive  the  same,  his,  her  or  their  executors  or  administrators 

^■iHarris   v.   White,   5   N.   J.   L.,  ^cLioyfl  v.    Rowe,   20   N.    T.    L.. 

4Q5-  680. 

"■'-Llnyd    V.    Rowc,   20   N.   J.   L., 
680. 


ji6  Probate  Law  and  Practice. 

may  produce  the  receipts  and  discharges  therefor  to  the  surro- 
gate of  the  county  in  which  letters  testamentary  or  of  admini- 
stration or  guardianship  have  been  or  shall  be  granted,  and 
the  said  surrogate  shall  immediately  record  the  same  in  a  book 
to  be  kept  for  that  purpose ;  provided,  that  the  same  be  first 
proved  or  acknowledged  in  the  manner  that  deeds  of  convey- 
ance of  land  are  by  law  required  to  be  proved  or  acknowledged  ; 
which  proof  or  acknowledgment  shall  be  recorded  with  such 
receipts  or  discharges ;  and  the  said  surrogate  shall  indorse  on 
such  receipts  and  discharges,  the  book  and  page  in  which  the 
same  is  recorded,  with  the  time  of  recording  the  same,  and 
sign  his  name  thereto :  and  the  said  record,  or  a  copy  thereof, 
under  the  hand  and  seal  of  office  of  the  surrogate,  shall  be 
received  in  evidence  in  any  court  of  record  in  this  state,  it 
it  shall  be  made  to  appear  to  the  satisfaction  of  said  court  that 
the  original  receipt  or  discharge  hath  been  lost,  or  that  it  is 
not  in  the  power  of  the  party  offering  the  copy  in  evidence  to 
produce  the  same." 

DECREE   OF    DISTRIBUTION    OF    ESTATE    OF 
INTESTATE. 

Jurisdiction  of  Orphans'  Court. 

After  executors  or  administrators  shall  have  legally  ac- 
counted for  the  goods  and  chattels  and  credits  of  the  deceased, 
the  orphans'  court  of  the  proper  county  shall,  by  a  decree  of 
distribution,  order  a  just  and  equal  distribution  of  the  personal 
estate  whereof  any  deceased  shall  die  intestate,  which  may 
remain  after  the  payment  of  debts,  funerals  charges  and  just 
expenses,  among  the  husband  or  widow  as  the  case  may  be, 
and  children,  or  deceased  children's  children,  if  any  such  there 
be,  or  otherwise  to  the  next  of  kindred  to  the  intestate,  in  equal 
degrees,  or  legally  representing  their  stocks,  each  according  to 
his  or  her  respective  right,  pursuant  to  the  laws  in  such  cases, 
and  the  rules  and  limitations  hereinbefore  set  down'®  and  the 
persons  entitled  to  such  distribution  shall  have  their  remedy 
at  law,  in  cases  of  non-payment,  for  the  recovery  of  the  same, 

'''Orphans'  Court  Act,  sec.  163.  "''See  p.  698,  et.  seq.,  supra. 

3  Comp.  Stat.,  3873. 


Distribution.  717 

against  the  executor  or  executors,  administrator  or  adminis- 
trators, so  accounting,  saving  to  every  one  supposing  himself, 
herself,  or  themselves  aggrieved,  his.  her  and  their  right  of 
appeal.'® 

Application  for  Decree. 

A  decree  for  distribution  may  be  made  at  the  instance  of  the 
administrator,  or  of  any  of  the  distributees :  but  a  separate 
decree  cannot  be  made  at  the  instance  of  each  of  the  claim- 
ants.^° 

Notice  of  Application. 

Xo  notice  of  an  application  for  a  decree  of  distribution  of 
the  estate  of  an  intestate  other  than  that  prescribed  by  the 
statute  for  the  settlement  of  the  administrator's  account,  is 
necessary.^i  So  where  an  administrator  gave  the  statutory 
notice  of  the  settlement  of  his  accounts,  and  at  the  term  follow- 
ing that  at  which  his  accounts  w^ere  passed  applied  for  a  decree 
of  distribution,  it  was  held  that  no  notice  of  that  application 
was  necessary. ^- 

Hearing. 

The  decree  should  be  made  upon  hearing  and  upon  full  in- 
quiry into  the  rights  of  the  parties.*'  The  Orphans"  Court  Rules 
provide  that  the  orphans'  court,  before  decreeing  the  distribu- 
tion of  the  state  of  any  person  dying  intestate,  shall  require 
proof  in  writing,  under  oath,  of  the  names  of  the  wife  and  chil- 
dren, if  any,  or  other  next  of  kin  of  the  intestate,  and  how  and 
in  what  d«gree  such  other  next  of  kin  are  related  ;  which  proof 
may  be  made  by  affidavit  of  the  administrator,  or  of  any  one 
having  knowledge  of  the  family  and  next  of  kin  of  deceased, 
unless  the  court  shall  require  further  or  other  proof.^^ 

"Orphans'  Court  Act.  sec.   168,  case  of   the   estate   of  a   testator. 

.3  Comp.   Stat.,  3874,   as  amended  See  p.  724.  infra. 

by  P.  L.  1914,  p.  69,  sec.  2.  "Exton  v.   Zule,    14  N.    T.   Eq.. 

^"Sayre   v.   Sayre.    16  N.  J.  Eq.,  501. 

•=;^S-  83Exton   V.  Zule.    14  N.    T.   Eq., 

*'Exton  V.  Zule.    14   N.  J.   Eq..  501. 

SOI.     Sayre  v.  Sayrc.  16  N.  J.  Eq.,  «^Orp]ians'  Court  Rule  26. 
.S05.     Otherwise,   however,   in  the 


7i8  Pkobatk   Law   axd  Practice. 

.  On  an  application  against  an  administrator  for  a  decree  of 
distribution,  the  administrator  may  set  up  that  a  part  of  the 
estate  is  claimed  by  another  as  his  individual  property,  on  an 
allegation  that  the  intestate  held  it  upon  a  trust  for  him.  and 
that  another  part  of  the  funds,  of  which  distribution  is  claimed, 
is  subject  to  another  trust. ^''  So  the  administrator  may  set 
up  that  part  of  the  funds  constituting  the  estate  were  left  by 
him  on  deposit  in  a  bank  where  intestate  had  placed  it.  and  the 
balance  deposited  by  the  administrator  in  a  savings  bank  after 
the  settlement  of  his  tinal  account,  both  of  said  banks  being 
then  in  good  standing:  that  said  banks  had  become  insolvent 
about  a  month  after  his  final  account  had  been  settled :  and 
that  thereby  both  deposits  had  been  lost  without  his  negli- 
gence.®® 

It  is  the  duty  of  the  court,  before  distribution  is  decreed, 
to  require  that  the  case  be  clearly  proved.  If  there  be  reason 
able  doubt  as  to  the  rights  of  the  parties,  the  decree  should  be 
denied.  When  once  made,  and  not  appealed  from,  however, 
it  operates  as  an  efficient  shield  to  the  administrator,  and  pro- 
tects him  against  all  other  claimants.*" 

Nature  and  Office  of  Decree. 

The  proceeding  to  obtain  a  decree  of  distribution  is  not  in 
the  nature  of  a  suit  between  party  and  party.  It  is  analogue 
in  its  character  to  a  proceeding  in  admiralty,  or  other  proceed- 
ing 1)1  ron.  in  whicli  a  decision  between  the  parties  before  the 
court  settles  the  rights  of  all  parties  to  the  property  in  ques- 
tion :  and  the  decree  founded  upon  such  proceedings  is  in  its 
nature  a  final  decree,  and  concludes  the  rights  of  all  the  parties 
to  the  property  in  question,  whether  they  are  sui  jiirifor  imder 
disability.^*  The  decree  for  distribution  is  not  a  new  proceed- 
ing, but  is  merely  ancillary  to  the  decree  for  settlement  of  the 
administrator's  account. *'•* 

^^W'estervelt  v.  Ackerson,  35  N.  ^sgxton  v.  Zule,    14  N.  J.  Eq.. 

T.  Eq..  43.  501.     Sayre  v.  Sayre.  16  N.  J.  Eq.. 

^''Westervelt  v.  Ackerson.  35  X.  505.     Search  v.   Search.  27  N.  J. 

J.  Eq.,  43.  Eq..    137-140.     Adams   v.   Adams. 

s'Exton  V.  Zule,   14  N.  J.  Eq.,  46  N.  J.  Eq.,  298-303.     Bayley  v. 

501.  and  see  "Validity  and  Eflfect  Bayley,  71  N.  J.  Eq.,  9. 

of  Decree,"  p.  719,  infra.  sagxton  v.   Zule,    14  X.  J.  Eq., 

501. 


Distribution.  7^9 

The  office  of  a  decree  of  distribution  is  simply  to  declare  the 
rights  of  the  legal  representatives,  or  next  of  kin.  in  the  estate 
of  the  intestate ;  beyond  that  it  does  not  profess  to  decide,  and, 
in  the  very  nature  of  the  case,  can  decide  nothing.  The  claims 
may  be  paid,  pledged,  or  transferred  to  other  parties ;  but 
these  are  questions  with  which  the  decree  has  no  concern,  and 
which  the  court  has  neither  the  power  nor  the  means  to  investi- 
gate. Such  claims  can  only  be  properly  tried  by  suit ;  and  as 
no  action  can  be  brought  by  the  claimant  until  the  decree  of 
distribution  is  made,  it  follows  that  such  decree  must  of  neces- 
sity be  made  in  order  that  the  right  may  be  properly  tried  and 
decided.  It  is  no  part  of  the  office  of  a  decree  of  distribution 
to  settle  whether  any  share  has  been  paid  in  whole  or  in  part, 
or  whether  the  legal  or  equitable  interest  in  the  fund  may  have 
been  assigned.  The  law  settles  with  great  precision  to  whom 
the  share  of  the  estate  shall  be  allotted,  in  making  the  distribu- 
tion.«" 

Upon  an  application  for  a  decree  of  distribution,  it  is  the 
duty  of  the  court  not  only  to  decree  that  the  balance  shall  be 
distributed  according  to  law,  but  to  settle  and  decree  to  whom 
and  in  what  proportion  the  balance  is  to  be  paid.  The  decree 
should  be  specific,  not  general.  The  administrator  is  entitled  to 
a  specific  decree  for  his  protection  in  paying  out  the  estate  ;  and 
the  next  of  kin  are  entitled  to  a  specific  decree,  as  it  consti- 
tutes the  basis  upon  which  they  are  entitled  to  sue  for  and 
recover  their  respective  shares  of  the  estate. ^^  The  court 
should  not,  however,  fix  the  amount  to  be  paid  to  each  distribu- 
tee, but  only  the  proportion  of  the  balance  in  the  hands  of  the 
administrator  which   each  distributee   should  receive.-'- 

Validity  and  Effect  of  Decree. 

So  long  as  the  decree  stands  in  full  force  unappealed  from, 
it  is  conclusive  upon  all  parties,  and  cannot  he  inquired  into 
collaterally  :  the  ])resumption  of  law  is  that  it  was  made  in 
accordance  with  the  requirements  of  the  statute,  and  within  the 

^''Sayre  v.   Sayre,  i6  N.  J.  Eq.,  "-Bayley    v.    Bayley.    71    N.    J. 

505.  Eq-  9- 

»iE.xton   V.  Zule,    14   N.  J.   Eq., 
501. 

47 


720  Probate  Law  and  Practice. 

rights  of  the  parties.^^  The  decree  is  final  and  conclusive 
between  the  administrator  and  the  distributees  as  to  the  amount 
of  each  share  and  the  party  entitled  to  receive  it,  unless 
appealed  from  within  the  time  limited  by  the  statute.^*  It  is 
an  effectual  protection  to  the  administrator  against  all  claims 
for  moneys  paid  pursuant  thereto,  though  it  should  prove  that 
the  decree  was  erroneous,  and  the  money  paid  to  a  party  not 
entitled  thereto;  and  it  is  no  valid  objection  to  a  decree  that 
it  is  made  in  favor  of  parties  who  were  not  applicants  there- 
for.^s 

Effect  of  Mistake  by  Court. 

Because  the  statute  requires  the  court  to  order  an  equal 
distribution  among  all  the  next  of  kin,  it  does  not  follow  that 
if,  in  making  the  decree  of  distribution,  the  court  committed 
any  mistake  in  fact  as  to  the  number  of  distributees,  or  any 
error  in  law  as  to  their  respective  rights,  the  decree  is  un- 
authorized by  the  statute  and  therefore  null  and  void;  the 
establishment  of  this  doctrine  would  render  the  decree  abso- 
lutely nugatory.  It  follows,  therefore,  that  the  orphans"  court 
has  no  power  to  vacate  a  decree  of  distribution  made  by  it, 
after  the  statutory  period  for  appeal  has  elapsed,  even  though 
it  be  satisfied  that  it  erred  in  making  such  decree,  if  the  decree 
was  itself  legal,  and  in  accordance  with  the  facts  established 
in  evidence  before  the  court  at  the  time  it  was  made  f^  and 
so  where  a  decree  of  distribution  was  rendered  at  a  time  when 
the  interests  of  certain  contingent  remaindermen  had  not 
arisen  because  of  the  non-occurrence  of  the  event  upon  the 
happening  of  which  their  interests  were  to  vest,  such  remain- 
dermen were  held  to  have  been  represented  by  the  executors 
who  were  likewise  their  trustees,  and  hence  were  concluded 
by  the  decree.^' 

93Exton   V.   Zule,    14   N.   J.   Eq..  ssgayre  v.   Sayre.   16  N.  J.  Eq.. 

501.    WyckofiF  v.  O'Niel.  71  N.  J.  505. 

Eq.,  681.     Affirmed  ib.,  729.  s^Exton  v.   Zule.    14  N.  J.  Eq., 

9<Exton  V.  Zule,   14  N.  J.  Eq..  501.     Sayre  v.  Sayre,  16  N.  J.  Eq.. 

501.     Sayre  v.  Sayre,  16  N.  J.  Eq.,  505. 

505.  9"Woolsey  v.  Woolsey,  78  N.  1. 

Eq.,  517.     Affirmed  ib.,  579. 


Distribution.  721 

Remedy  of  Person  Deprived  of  Rights  by  Decree. 

The  remedy  of  a  party  deprived  of  his  rights  by  a  decree 
is  not  against  the  administrator,  but  against  the  distributees 
who  have  wrongfully  received  the  estate.^® 

Method  of  Enforcing  Decree. 

While  the  decree  of  distribution  settles  the  right  to  a  dis- 
tributive share,  it  has  never  been  deemed  to  endow  the  distribu- 
tee with  any  other  authority  to  enforce  his  rights  than  by  a 
suit.  Such  a  suit  may  be  brought  at  law,  or  in  equity,  or 
by  petition  to  the  orphans'  court  in  conformity  with  the  prac- 
tice prescribed  in  section  192  of  the  Orphans'  Court  Act;"^ 
but  it  is  not  a  decree  for  the  payment  of  money  upon  which 
execution  will  issue  under  the  provisions  of  section  184  of 
the  Orphans'  Court  Act.^ 

Conflict  of  Law, 

Distribution  of  personal  estate  of  an  intestate  is  made  accord- 
ing to  the  law  of  the  state  in  which  he  was  domiciled  at  his 
death ;-  but  by  what  tribunal  that  distribution  shall  be  made 
depends  upon  circumstances,  and  rests  in  the  sound  discretion 
of  the  court.^ 

Appeal  from  Decree  of  Distribution. 

An  appeal  will  lie  from  a  decree  of  distribution.* 

^^Exton  V.  Zule,    14  N.  J.   Eq.,  Grogiiard,  17  N.  J.  L.  425.     Har- 

501.    Sayre  v.  Sayre,  16  N.  J.  Eq.,  ral  v.   Harral,  39  N.  J.  Eq..  279. 

505.     Adams   v.   Adams,   46  N.  J.  Jenkins  v.  Guarantee  Trust  Com- 

Eq..  298-303.  pany,  53  N.  J.  Eq.,  194-202. 

''^Page  730,  infra.  "Normand   v.    Grognard,    17    N. 

'Page     50,     supra.       Bayley     v.  J.  Eq.,  425. 

Bayley,  71  N.  J.  Eq..  9.  ■'Exton   v.   Zule,    14   N.   J.   Eq., 

-In  re  Grattan's  Estate,  78  N.  J.  501.    Sayre  v.  Sayre,  16  N.  J.  Eq., 

Eq.,  225.     Pratt  v.  Douglas,  38  N.  505.    Orphans'  Court  .\ct.  sec.  16S, 

J.  Eq.,  516.     Banta  v.   Moore    i.S  3  Comp.   Stat.,  3874,  as  amended 

N.  J.  Px).,  97.     Nelson  v.   Potter,  liy  P.  L.  1914.  p.  69,  sec.  2.  p.  717, 

50   N.    J.    Eq.,    324.      Nfjrmand    v.  supra. 


722  Probate  Law  and  Practice. 

DECREE  OF  DISTRIBUTION  IN  CASE  OF  WILL. 

Statutory  Provisions. 

In  all  cases  where  any  executor  or  administrator  cum  testa- 
mento  annexo,  or  trustee,  shall  have  filed  any  account,  exhibit- 
ing the  balance  of  any  estate  in  his  or  her  hands,  up  to  the 
date  of  filing  the  same,  and  such  account  shall  have  been  duly 
allowed  by  the  decree  of  the  orphans'  court  of  any  county  of 
this  State,  it  shall  be  lawful  for  the  said  orphans'  court,  upon 
the  application  of  any  party  in  interest,  upon  such  notice  to  all 
persons  concerned  as  the  court  shall  direct,  to  adjust,  order  and 
make  just  distribution,  in  accordance  with  the  directions  and 
provisions  of  the  last  will  and  testament  in  each  case,  of  what 
shall  remain  after  all  debts  and  expenses  shall  have  been  allowed 
and  deducted;  and  the  said  orphans'  court  shall  have  power 
to  enforce  its  decree  as  aforesaid,  by  attachment,  sequestration 
or  other  process,  or  in  any  manner  and  with  like  eft'ect  that 
similar  decrees  can  be  enforced  by  the  Court  of  Chancery  of 
this  state ;  reserving  and  hereby  giving  to  every  one  feeling 
aggrieved  by  any  such  decree  of  distribution,  as  aforesaid,  the 
right  to  appeal  to  the  Prerogative  Court  concerning  any  such 
decree,  or  the  enforcement  thereof;  provided,  that  if  any 
executor,  administrator  cum  testamento  annexo,  or  trustee,  as 
aforesaid,  shall  appeal  from  such  decree  of  distribution  or 
proceeding  in  the  Orphans'  court  as  aforesaid,  said  appeal  shall 
be  filed  within  twenty  days  after  the  date  of  said  decree  of 
distribution,  and  the  appellant  shall  give  a  bond  to  the  ordinar\' 
of  this  state,  with'  two  sufficient  sureties,  to  be  approved  ol 
by  the  said  orphans'  court,  in  double  the  sum  adjudged  due 
to  the  parties  entitled  to  the  same,  and  conditioned  to  pay  such 
sum,  costs,  interest  and  damages  accuring  by  reason  of  an} 
such  appeal,  if  the  said  order  of  distribution  and  enforcement 
be  affirmed.' 

Judisdiction  of  Orphans'  Court. 

This  statute  confers  full  jurisdiction  upon  the  orphans'  court 
to  make  just  distribution  of  an  estate,  upon  the  application  of 

'Orphans'   Court  Act.   sec.    173, 
as  amended  by  P.  L.  1915,  p.  343. 


Distribution.  725 

any  party  in  interest,  in  accordance  with  the  directions  of  the 
testator's  will,  and  to  enforce  its  decrees  with  like  effect  as  to 
those  of  a  court  of  chancery.*^  IVior  to  the  first  enactment  of 
this  statute  in  1872,  the  orphans"  court  had  power  to  decree 
distribution  only  in  the  case  of  intestates.' 

Construction  of  Wills. 

The  orphans'  court  has  power,  in  fixing  the  decree  of  distri- 
bution by  executors,  to  construe  the  will,  so  far  as  is  necessary 
to  determine  to  whom  the  distribution  or  payment  is  .to  be 
made  f  but  the  binding  effect  of  the  construction  of  a  will  by 
the  orphans'  court  w^ill  not  extend  beyond  the  end  for  which 
the  conclusion  is  necessarily  reached,"  and  the  power  to  con- 
strue wills  is  limited  to  cases  in  which  the  executor  or  adminis- 
trator cum  testamento  annexo  has  filed  an  account  exhibiting, 
the  balance  of  the  estate,  and  the  account  has  been  duly  allowed, 
by  decree.'"  A  decree  directing  an  executor  to  distribute  money 
acording  to  the  terms  of  the  will  is  not  a  decree  construing  the- 
will.^i 

The  constitutionality  of  this  section  has  been  questioned  but 
not  passed  upon  by  the  Court  of  Errors  and  Appeals. ^- 

Practice  on  Application, 

All  applications  by  executors,  substitutionary  administrators 
with  the  will  annexed,  or  administrators  with  the  will  annexed, 
for  a  decree  of  distribution,  shall  be  by  verified  petition  ad- 
dressed to  the  orphans'  court,  which  petition  shall  recite  the 
grant  of  letters  to  petitioner,  the  names  and  addresses  of  all 
persons  interested,  the  allowance  of  petitioner's  account  by  the 
orphans'  court  and  the  balance  in  petitioner's  hands  for  distri- 
bution, and  shall  pray  for  an  order  of  distribution  in  accord- 

cWyckoflf    V.    O'Niel.    71    N.    J.  ''Dunham    v.    Marsh,    52    N.    J.. 

Eq.,  681.     Affirmed  ib.,  729.  Eq.,  256.     Affirmed  ib.,  831. 

'^Ordinary  v.  Barcalow.  36  N.  J.  '"Swain  v.  Smith.  61   N.  J.  Eq... 

L.,  15.     In  re  Eakin,  20  N.  J.  Eq.,  590. 

481.  "Stevens    v.    Dewey,    55    N.   J, 

^Hill   V.    Bloom,   41    N.   J.   Eq.,  Eq.,  232. 

276.     Stevens  v.  Dewey,  55  N.  J.  '-.^.dams    v.    Adams,    46    N.    J. 

Eq.,  232.  Eq.,  298-302. 


724  Probate  Law  and  Practice. 

ance  with  the  terms  of  the  will,  a  copy  whereof  shall  be  annexed 
to  the  said  petition. ^^ 

Notice  of  Application. 

Five  days'  notice  of  any  application  for  distribution  under 
ihe  provisions  of  rule  27^^  shall  be  given  by  such  executor,  sub- 
stitutionary administrator  with  the  will  annexed,  or  adminis- 
trator with  the  will  annexed,  to  all  persons  interested  therein 
who  are  residents  of  the  State  of  New  Jersey,  and  not  less 
than  five  or  more  than  sixty  days'  notice,  as  the  court  may  by 
order  direct,  to  all  persons  interested  therein  who  reside  with- 
out the  State  of  New  Jersey,  which  last  mentioned  notice  may 
be  sent  by  mail  with  the  postage  thereon  prepaid.^^ 

The  decree  authorized  by  section  168  of  the  Orphans'  Court 
Act^*^  must  be  made  on  the  application  of  a  party  in  interest, 
in  a  proceeding  to  which  others  interested  are  parties,  and  will 
not  be  conclusive  upon  those  having  no  notice  of  the  proceed- 
ing. The  usual  notice  that  the  executor  will  state  and  settle 
his  accounts  is  not  sufficient.^' 

Appeal. 

Every  one  feeling  aggrieved  by  any  such  decree  of  distri- 
bution as  aforesaid  may  appeal  to  the  prerogative  court  con- 
cerning any  such  decree,  or  the  enforcement  thereof ;  provided, 
that  if  any  executor,  or  administrator  cum  tcstamcnto,  or 
trustee,  as  aforesaid,  shall  appeal  from  such  decree  of  distri- 
Ijution  or  proceeding,  in  the  orphans'  court  as  aforesaid,  said 
appeal  shall  be  filed  within  twenty  days  next  after  the  date  of 
said  decree  of  distribution,  and  the  appellant  shall  give  a  bond 
to  the  ordinary  of  this  state,  with  two  sufficient  sureties,  to  be 
approved  of  by  the  said  orphans'  court,  in  double  the  sum  ad- 
judged due  to  the  parties  entitled  to  the  same,  and  conditioned 
to   pay    such    sum,   costs,    interest   and   damages   accruing   by 


^^Orphans'  Court  Rule  27.  ^'Adams    v.    Adams,    46    N.    T. 

^*Page  722,  supra.  Eq.,  298.    Merritt  v.  Merritt,  48  N. 

"Orphans'  Court  Rule  28.  J.  Eq.,  i.     Affirmed  51  N.  J.  Eq., 

lopagg  j^y^  supra.  638.     Stevens  v.  Dewey,  55  N.  J. 

Eq.,  232. 


Distribution". 


/-:> 


reason  of  any  such  appeal,  if  the  said  order  of  distribution 
and  enforcement  be  affirmed.^® 

DISTRIBUTION    OF    SECURITIES    WHEN    MINORS    ARE 
ENTITLED   THERETO. 

Statutory  Provisions, 

Whenever  upon  the  settlement  and  allowance  of  the  tinal  or 
intermediate  accounts  of  any  administrator,  it  shall  appear  that 
he  has  in  his  hands  as  assets  or  part  of  the  assets  of  the  estate 
of  which  he  is  the  administrator,  any  bonds,  mortgages,  stock 
shares,  loans  on  personal  security  or  other  security  which 
came  to  him  as  investments  made  by  or  belonging  to  his  in- 
testate, and  there  be  minor  child  or  children  entitled  to  dis- 
tribution of  the  balance  shown  by  said  account  or  accounts,  or 
to  some  part  thereof,  it  shall  be  lawful  for  such  administrator 
to  present  a  petition  to  the  court  by  Avhich  he  was  appointed, 
or  to  the  court  by  law  authorized  to  pass  on  his  accounts,  setting 
forth  the  nature  and  amount  of  such  bonds,  mortgages,  stock 
shares,  loans  on  personal  security  or  other  securities,  that  have 
come  to  his  hands,  and  pray  the  direction  of  the  court  as  to 
the  sale  and  conversion  of  such  bonds,  mortgages,  stock  shares, 
loans  on  personal  security  or  other  securities,  or  whether  he 
shall  distribute  the  same  in  kind,  as  near  as  may  be,  to  the  said 
minor  child  or  children,  through  their  guardian  or  guardians ; 
and  the  said  guardian  or  guardians,  if  any  there  be,  may  join 
in  said  petition  and  ask  the  direction  of  the  court  as  to  the 
acceptance  of  investments  or  securities,  and  thereupon  the 
said  court,  upon  the  consideration  of  all  the  circumstances  of 
the  case  and  the  evidence  produced,  may  make  such  order, 
either  directing  the  sale,  or  conversion  of  such  securities  or 
directing  such  administrator  to  distribute  them  in  kind  or 
authorizing  and  empowering  said  guardian  or  guardians  to 
accept  such  portion  thereof  as  would  be  equal  in  money  to  the 
amount  of  the  distributive  share,  or  shares  to  which  their  ward 
or  wards  would  be  entitled  thereunto,  as  in  the  judgment  and 
discretion  of  the  court  will  l)e  most  adxantao^eous  to  the  interest 

I'^Orphans'  Court  Act.  sec.   173, 
as  amended  by  P.  L.  1915.  p.  343. 


■726  Probate  Law  and  Practice. 

of  the  persons  entitled  to  share  in  said  fund ;  and  any  ad- 
ministrator or  guardian  applying  as  aforesaid  and  receiving 
such  order  and  direction,  shall,  upon  compliance  therewith,  be 
as  fully  exonerated  and  acc|uitted  as  if  he  or  they  had  dis- 
tributed said  funds  in  money  and  invested  the  same  in  such 
loans  and  investments  as  are  now  authorized  by  existing  laws 
relating  to  investments  by  executors,  administrators  with  the 
will  annexed,  trustees  and  guardians ;  and  such  guardians  shall 
not  be  accountable  for  any  loss  by  reason  of  accepting  such 
distribution  upon  the  making  of  said  order." 

Executor  May  Require  Security  from  Legatee  for  Life. 

Whenever  personal  property  is  bequeathed  to  any  person  for 
life,  or  for  a  term  of  years,  or  for  any  other  limited  period,  or 
upon  a  condition  or  any  contingency,  the  executor  or  adminis- 
trator cum  testamento  anne.vo  shall  not  be  compelled  to  pay  or 
deliver  the  property  so  bequeathed  to  the  person  having  any 
such  life  interest  or  other  interest  as  aforesaid,  until  security 
shall  be  given  to  the  orphans'  court  having  jurisdiction  of  such 
executor's  or  administrator's  accounts,  in  such  sum  and  form 
as  in  the  judgment  of  the  said  court  shall  sufficiently  secure 
the  interest  of  the  person  or  persons  entitled  in  remainder, 
whenever  the  same  shall  accure  or  vest  in  possession ;  but 
where  the  person  or  persons  next  immediately  in  remainder 
shall  be  the  lineal  descendant  of  any  such  life  tenant,  or  person 
having  any  limited  estate  as  aforesaid,  and  such  executor  or 
administrator  shall  not  have  filed  any  security,  such  life  tenant 
or  other  person  having  such  limited  interest  or  estate  as  afore- 
said shall  not  be  required  to  give  security  in  a  greater  sum  than 
fifty  thousand  dollars  ;  provided,  hozvevcr,  in  every  case  where 
the  executor  or  administrator  is  the  person  to  whom  any  such 
life  interest,  or  other  interest  as  aforesaid  is  bequeathed,  then 
such  executor  or  administrator,  before  receiving  into  his  pos- 
session such  personal  property,  unless  by  the  will  it  is  qr  may 
be  provided  that  no  security  shall  be  required  of  such  executor, 
shall  file  with  the  surrogate  of  the  county  in  which  the  will 
shall  be  or  has  been  proved  or  letters  granted,  a  bond  to  the 

isp.  L.   1900,  p.  423.  3   Comp. 
Stat.,  p.  3859,  sec.  127-a. 


Distribution.  727 

ordinary  of  this  state,  in  double  the  amount  of  money  or  the 
\  akie  of  the  property  to  he  received,  with  two  sufficient  sureties, 
to  be  approved  by  the  orphans'  court,  conditioned  for  the  faith- 
ful conservation  of  said  property,  and  until  such  a  bond  shall 
t)e  tiled  it  shall  not  be  lawful  for  such  executor  or  adminis- 
trator to  receive  such  money  or  personal  property,  but  the 
orphans'  court  may,  upon  petition  presented,  by  any  person  in 
interest,  and  upon  ten  days'  notice  in  writing  to  such  execu- 
tor, or  administrator,  appoint  some  other  tit  person  to  receive 
and  administer  such  property  as  trustee,  upon  such  security 
being  given  for  the  faithful  discharge  of  his  duties  as  to  the 
said  court  shall  seem  proper.-" 

The  aforesaid  act  shall  be  held  to  apply  as  well  to  all  cases 
where  any  will  has  already  been  proved  as  where  it  shall  be 
proved ;  provided,  however,  that  any  such  executor  has  not 
already   received   such  personal  property   in   his  possession.-' 

Construction  of  Statiite. 

Where  the  testator  gives  to  a  legatee  for  life  the  absolute 
possession  and  control  of  the  fund,  the  executors  may  pay  it 
over  without  requiring  security,"  and  when  an  executor 
delivers  a  specific  legacy  bequeathed  to  one  for  life  and  to 
another  absolutely  after  the  life  estate  to  the  life  tenant,  taking 
a  proper  receipt,  or  inventory,  for  the  taker  in  remainder,  he 
is  discharged  from  any  further  duty,  or  liability,  with  refer- 
ence to  the  legacy.  Thereafter  it  becomes  the  care  of  the 
person  who  is  to  take  in  remainder  to  see  that  the  corpus  thus 
delivered  was  not  consumed  or  wasted.-^' 

A  gift  of  testator's  half  interest  in  a  firm  business  to  his  son, 
with  directions  that  the  son  immediately  take  testator's  place 
as  partner  and  continue  the  business,  with  a  gift  over  on  the 
son's  death,  while  not  a  life  estate  is,  notwithstanding  the  im- 
])lied  i)owers  to  sell  the  firm's  interest  in  the  i)roperty  for  the 
benefit  of  the  firm,  a  gift  of  an  estate  on  a  contingency  within 
the  provisions  of  this  act.-* 

•203  Comp.   Stat.,  p.  3089,  sec.  8.  F.q.,  611.     Affirmed  53   N.  J.   Eq., 

-'3  Comp.  Stat.,  p.  3090,  sec.  9.  347. 

--In   re  Ryerson,  26  N.  J.  Eq.,  -■•Meis    v.    Meis,    35    Atl.    Rep., 

43-  369.     See  also  Ott  v.  Tewksbury, 

23Dodson    V.    Sevars,    52    N.    J.  75  N.  J.  Eq.,  4. 


728  Probate  Law  and  Practice. 

The  statute  does  not  make  it  obligatory  upon  the  executors 
to  require  security  in  the  cases  therein  mentioned,  but  leaves 
it  to  their  discretion  whether  they  will  require  security  before 
paying  over  to  a  legatee  the  amount  of  a  bequest  for  life,  or 
years, -^  but  where  the  legatee  for  life  is  by  the  terms  of  the 
will  entitled  to  receive  the  property  bequeathed  and  it  appears 
that  there  is  danger  that  the  principal  of  the  legacy  will  be 
wasted,  or  lost,  the  settled  rule  in  equity  is  that  the  court  will 
protect  the  interest  of  the  legatee  in  remainder  by  compelling 
the  legatee  for  life  to  give  security  for  the  safe  return  of  the 
principal.-® 

Order  of  Distribution  of  an  Intestate's  Estate. 

The  personal  estate  of  an  intestate  will  be  distributed  as 
follows : 

I.     IF      THERE      BE      HUSBAND      OR      WIDOW      AND 

CHILDREN. 

« 

One-third  to  husband  or  widow,  balance  to  children 
and  the  representatives  of  deceased  children 
equally  per  stirpes,  deducting  from  the  share  of 
any  child  any  advancement  or  settlement  made  to 
such  child  by  intestate. 

II.  "  IF    THERE     BE    HUSBAND    OR    WIDOW,    BUT    NO 
CHILDREN  NOR  ISSUE  OF  ANY. 

All  to  the  husband  or  widow. 
III.     IF  THERE  BE  NO  HUSBAND  OR  WIDOW. 

If  intestate  die  leaving 

Children. — x\ll  to  be  divided  equally  among  the 
children  and  such  persons  as  legally  represent 
deceased  children,  deducting  from  the  share  of 
any  child  any  advancement  or  settlement  made 
to  such  child  by  intestate. 

-^In  re  Ryerson,  26  N.  J.  Eq..  ^^Howard  v.  Howard,   16  N.   T. 

43-     Dodson   v.   Sevars,   52  N.  J.  Eq.,  486.     Post  v.  Van  Houten,  41 

Eq.,  611.     Affirmed  53  N.  J.  Eq.,  N.  J.  Eq.,  82.     Affirmed  43  N-  J. 

347-  Eq.,  296. 


Distribution'.  729 

Father,  Mother  ojid  Brothers  and  Sisters. — If  in- 
testate was  of  full  age.  all  to  be  divided  equally 
among  them  :  if  intestate  was  a  minor,  then  all  to 
the  father  and  mother. 

Father  or  Mother,  and  Brothers  and  Sisters. — 
If  intestate  was  of  full  age,  all  to  be  divided 
equally  among  them;  if  intestate  was  a  minor, 
then  all  to  the  surviving  parent. 

Brothers  and  Sisters. — All  to  them  equallv  and 
their  legal  representatives. 

No  Children  or  Representatives  of  Deceased 
Children,  Nor  Father  or  Mother,  Nor  Brother 
or  Sister  or  Any  Representative  of  Deceased 
Brother  or  Sister. — All  to  grandparents.  If  no 
grandparents,  then  uncles  and  aunts,  nephews 
and  nieces  and  then  cousins  succeed  in  the  order 
named. 

IV.  ILLEGITIMATE  PERSON  WHO  DIES  UNMARRIED 
LEAVING  NO  LAWFUL  ISSUE  NOR  THE  ISSUE 
OF  ANY. 

All  to  the  mother. 

V.  MOTHER  OF  ILLEGITIMATE  CHILD  DYING  WITH- 
OUT HUSBAND  OR  LAWFUL  ISSUE  OR  ISSUE 
OF  ANY. 

All  to  such  illegitimate  child. 


CHAPTER  XXXIV. 

SUITS  FOR  LEGACIES  AND  DISTRIBUTIVE 
SHARES. 

Practice. 

Suits  for  the  recovery  of  legacies  and  distributive  shares 
before  the  orphans'  court  shall  be  commenced  by  petition  set- 
ting forth  concisely  the  petitioner's  claim  and  the  relief  prayed 
for  and  shall  be  verified  by  the  oath  of  the  petitioner,  his  agent 
or  solicitor,  and  on  filing  thereof  a  citation  or  citations  shall 
issue  under  the  seal  of  the  court,  signed  by  the  clerk  and  by 
the  petitioner  or  his  solicitor,  and  may  be  served  in  the  same 
manner  as  citations  are  served  in  other  cases,  and  may  be  made 
returnable  in  term  or  vacation ;  and  the  proceedings  in  such 
suits  thereafter  shall  in  all  respects  be  governed  by  the  rules 
and  practice  of  the  court  of  chancery  so  far  as  the  same  are 
applicable ;  provided,  hoivevcr,  that  any  question  arising  in 
any  such  suit  or  proceeding  may  be  tried  and  determined  in 
a  summary  way  before  the  court  without  being  referred  to  a 
master.^ 

Duties  of  Clerk. 

In  suits  under  the  last  preceding  section,  the  clerks  of  the 
orphans'  court  shall  perform  the  same  duties  as  are  required 
to  be  performed  by  the  clerk  of  the  court  of  chancery  in  simi- 
lar cases,  and  in  such  suits  the  fees  of  the  solicitor  for  draw- 
ing and  engrossing  a  petition,  or  answer  thereto,  shall  in  no 
case  exceed  three  dollars,  and  all  other  fees  and  costs  shall 
be  the  same  as  are  allowed  for  similar  services  in  the  court  of 
chancery,  except  that  the  fees  of  the  clerk  shall  be  two-thirds 
of  the  sum  allowed  for  like  service  in  the  court  of  chancery. - 

^Orphans'  Court   Act,    sec.    192.  sQrphans'   Court   Act,   sec.    193. 

3  Comp.  Stat.,  3883.  3  Comp.  Stat.,  3884. 


730 


Suits  for  Legacies,  Etc.  731 

Jurisdiction  of  Orphans'  Court. 

The  orphans'  court  shall  have  jurisdiction  over  suits  for  the 
recovery  of  legacies  and  distributive  shares,  in  .cases  where  the 
will  has  been  proved  in  the  same  court,  or  before  the  surrogate, 
or  a  decree  of  distribution  has  been  made  in  the  same  court." 

Necessity  for  Demand  and  Refunding  Bond. 

Xo  suit  shall  be  maintained  for  the  recovery  of  any  legacy 
or  bequest  until  after  a  reasonable  demand  made  of  the  execu- 
tor or  administrator  cum  testamento  aniie.vo,  who  ought  to 
pay  the  same,  and  a  tender  of  a  bond  to  such  executor  or 
administrator  signed  and  executed  by  the  legatee,  or  by  the 
guardian,  if  such  legatee  be  an  infant  under  the  age  of  twenty- 
one  years,  in  double  the  amount  or  value  of  such  legacy  or 
bequest  with  condition,  that  if  any  part  or  the  whole  of  such 
legacy  or  bequest  shall  at  any  time  thereafter  appear  to  be 
wanting  to  discharge  any  debt  or  debts,  legacy  or  legacies, 
which  the  said  executor  or  administrator  may  not  have  other 
assets  to  pay,  that  then  and  in  such  case  he,  the  said  legatee, 
will  return  his  said  legacy,  or  such  part  thereof  as  may  be 
necessary  for  the  payment  of  the  said  debts,  or  for  the  payment 
of  a  proportional  part  of  the  said  legacies ;  and  if  the  said 
executor  or  administrator  shall  not  accept  such  bond,  the 
plaintiff  shall  file  the  same  in  the  said  court  before  suing  out 
process  in  such  action,  and  for  want  thereof  the  action  shall 
abate.* 

When  Decree  of  Distribution  Necessary. 

No  suit  can  be  brought  for  a  distributive  share  until  the 
decree  of  distribution  is  made  f  but  a  suit  for  the  recovery' 
of  a  legacy  may  be  maintained  before  decree  of  distribution 
made.*^ 

^Orphans'  Court  Act,  sec.  3.  Ordinary  v.  Smith.  15  N.  J.  L.,  92. 
3  Comp.  Stat.,  3814.  Sayre  v.  Sayre,  16  N.  J.  Eq.,  505. 

*3  Comp.  Stat.,  p.  3089,  sec.  5.  ^In  re  Eakin,  20  N.  T.  Eq..  481- 

sWier  V.  Lum,  5  N.  J.  L.,  823.      483.     Adams  v.  Adams,  46  N.  J. 

Eq.,  298-304. 


732  Probate  Law  and  Practice. 

PARTIES. 

In  General. 

The  only  proper  parties  defendant  to  a  suit  for  a  legacy  are 
those  against  w.hom  the  decree  of  distribution  is  made.^  The 
rule  that  all  persons  interested  in  the  fund  or  property  that  is 
in  question  must  be  brought  before  the  court  in  order  to  be 
bound  by  the  result  is  subject  to  some  limitations,  dictated  by 
common  sense  upon  grounds  of  necessity,  or  even  of  con- 
venience. Where  courts  have  to  deal  with  property  the  ulti- 
mate destination  of  which  is  in  doubt,  and  which  may  go  to 
persons  not  yet  ///  esse,  or  not  yet  ascertained,  they  must  per- 
force proceed  without  the  attendance  of  such  persons,  or  not 
proceed  at  all.  It  results  that  such  contingent  interests  are 
held  to  be  bound  if  the  interest  be  represented  in  the  litigation 
by  a  trustee,  or,  in  some  cases,  by  the  predecessor  in  estate.* 

Even  where  the  parties  in  interest  are  /';/  esse  and  ascertained, 
they  need  not  in  all  cases  necessarily  be  brought  before  the 
court.  Thus  in  Davison  v.  Rake,^  the  Court  of  Errors  and 
Appeals  held,  in  a  suit  for  the  recovery  of  a  legacy  under  the 
Orphans'  Court  Act,  that  a  residuary  legatee  is  not  a  necessary 
party,  and  this  on  the  general  ground  that  in  suits  by  creditors 
or  legatees,  not  involving  the  construction  and  efifect  of  the 
residuary  clause  of  the  will,  and  where  a  residuary  legatee  is 
interested  consequentially  only  from  the  circumstance  that  the 
recovery  of  the  debt  or  legacy  will  reduce  the  residue,  the 
executor  is  regarded  as  the  representative  of  all  persons  inter- 
ested.^° 

Debtors  of  the  Executor. 

•   A  debtor  of  the  executor  is  not  a  proper  party  to  a  proceed- 
ing in  the  orphans'  court  for  the  recovery  of  a  legacy.^^ 

Debtors  of  the  Estate. 

Ordinarily,  a  legatee  or  next  of  kin  must  sue  only  the  execu- 
tor or  administrator  for  the  legacy  or  distributive  share,  and 

■^Hunt  V.  Mayberry,  29  N.  J.  L..  U5  N.  J.  Eq.,  767. 

403.  loWoolsey    v.    Woolsey,    78    N. 

^Dunham  v.  Doremus,  55  N.  J.  J.  Eq..  517.     Affirmed  ib.,  579. 

Eq.,  511.    Woolsey  v.  Woolsey,  78  nHunt  v.  Mayberry,  29  N.  J.  L., 

N.  J.  Eq.,  517.     Affirmed  ib.,  579.  403. 


Suits  for  Legacies,  Etc.  js3 

cannot  join  debtors  to  the  estate,  or  other  persons;  but  where 
there  is  colhision  between  the  executor  and  the  debtor  or  person 
having  the  property  in  his  hands,  or  where  the  executor  is  in- 
solvent, the  debtor  may  be  made  a  party,  and  recovery  had 
against  him.^- 

Where  Executor  is  Dead. 

Legatees  cannot  call  upon  the  administrator  of  the  executor 
of  a  will  for  the  payment  of  legacies ;  such  administrator  must 
account  with  the  substituted  administrator  of  the  testator,  and 
the  substituted  administrator  must  account  with  the  legatees.'^ 

DEFENCES. 

Retainer  of  Debts  Due  from  Distributee  to  Estate. 

In  general,  legacies  or  distributive  shares  are  subject  to  the 
set-off  of  debts  due  by  the  legatee  or  distributee  to  his  testator 
or  intestate.^*  If  the  debt  is  less  than  the  distributive  share, 
the  appropriation  of  the  share  to  its  payment  is  payment  of 
the  share  pro  tanto,  and  a  sufficient  compliance  with  the  decree 
of  distribution;^^  and  if  it  exceeds  the  share,  the  unpaid  balance 
is  assets  of  the  estate  like  any  other  debt.^"  The  amount  of 
the  set-off  may  be  retained  even  though  the  share  out  of  whicli 
it  is  withheld  is  less  than  the  amount  of  the  legal  exemption 
from   execution,^'  or  although  the  distributee  be  insolvent.^- 

An  assignee  of  the  legatee  or  distributee,  or  the  personal 
representative  of  a  deceased  legatee  or  devisee,  takes  the  legacy 
or  distributive  share  subject  to  all  equities  which  existed  against 
it  in  the  hands  of  the  assignor.'^     Thus,  the  del)ts  of  a  child 

'-Dorsheimer  v.  Rorback.  23  N.  ^^Howland      v.      Heckscher,      3 

J.  Rq..  46.     Affirmed  25  N.  J.  Eq.,  Sandf.   Ch.    (N.  Y.),  519.     Char- 

516.  lick's  Estate,  11  Abb.  N.  Cas.  (N. 

i3Boulton  V.  Scott,  3  N.  J.  Eq.,  Y.).  56. 

231,  and  see  "Account  I)y   Repre-  ''Fiscus  v.  Fiscus,  127  Ind.,  283. 

sentative  of  Deceased  Executor,"'  "'Howland     v.      Heckscher,     3 

p.  618,  supra.  Sandf.  Ch.,  519. 

i*Denise  v.  Denise,  2,y  N.  J.  Eq.,  '"Jefifs  v.  Wood,  2  P.  Wm.,  128. 

163,  and  see  "Debts  Due  from  Leg-  Bailey's   Estate,    156  Pa.   St.,   634. 

atees  or   Devisees,"   p.  339,   sui)ra.  27     Atl.     Rep.,     560.       vSmith     v. 

^^^Tinkham    v.    Smith,    56    Vt.,  Kearney,    2    Barli.    Cli.    (N.    Y.\ 

187.  533.      Haskin    v.    Teller,    3    Redf. 

fN.  Y.),  316. 


734  Probate  Law  and  Practice. 

to  his  father  may  be  set  off  against  such  child's  distributive 
share,  although  he  died  before  the  father  and  his  children  took 
the  share.^° 

In  an  action  for  a  legacy  against  executors  in  their  repre- 
sentative capacity,  they  cannot  set  oft"  a  claim  against  the  lega- 
tee for  rent  due  to  them  as  residuary  devisees  or  as  heirs  of 
the  testator,-^  or  due  to  themselves  personally. -- 

This  right  of  retainer  exists  whether  the  legatee  or  distribu- 
tee was  indebted  to  the  deceased  before  his  death,  or  contracted 
a  liability  to  the  estate  thereafter  ;-^  but  a  debt  not  due  when 
the  legacy  becomes  payable  cannot  be  satisfied  from  the  legacy, 
and,  in  such  case,  the  legatee  is  entitled  to  payment  of  his 
legacy  in  full.-* 

The  statute  of  limitations  does  not  operate  as  the  extinguish- 
ment of  a  debt,  but  bars  the  remedy  only ;  hence  such  debts 
may  be  set-off  against  legacies  or  distributive  shares  notwith- 
standing the  expiration  of  the  statutory  period  of  limitation.-'' 

The  doctrine  of  retainer  is  not  applicable  to  the  proceeds  of 
lands  sold  to  pay  debts,  or  under  partition  proceedings.-® 

Release, 

Distributees  may,  by  agreement,  release  to  one  another,  or 
to  the  administrator,-'  or  even  to  the  intestate  himself  before 
his  death.  Thus  where  money  is  paid  by  a  father  to  a  son 
and  receipted  "in  lieu  of  dowry,"  it  will  be  a  release  of  the 

-"Denise    v.    Denise,    zi    N.    J.  Ind.,    587.     49    N.    E.    Rep.,    452. 

Eq.,  163.  Matter  of   Smith,    14  Misc.   Rep.. 

-^Warwick  v.  Ely.  59  N.  J.  Eq.,  169.     Matter  of  Bogart,  28  Hun., 

44.  466.     Jeffs    V.   Wood   2   P.    Wm.. 

--Davis     V.     Newton.     6     Met.  128.      Courtenay    v.    Williams,    3 

(Mass.),    537.      Blake    v.    People,  Hare,  539.     In  re  Cordwell's  Es- 

161  III.  74.    43  N.  E.  Rep.,  590.  tate,   L.   R.  20,   Eq.,   644,   but   see 

-3McGee  v.  Ford,  5   Sm.  &  M.,  Allen  v.  Edwards,  136  Mass.,  138. 

769.    Gosnell  V.  Flack,  76  Md..  423-  Light's    Estate,    136    Pa.    St.,   211, 

426.     New  v.  New,  127  Ind.,  576.  contra. 

-^Hayes   v.   Hayes,   2   Del.   Ch.,  -'^LaFoy  v.  LaFoy,  43  N.  J.  Eq.. 

191.  206.     Smith   V.  Kearney,  2   Barb. 

-5Woerner     on     Admrs.,     1237.  Ch.,  533.     2  W^oerner  on  Admin- 

Tinkham   v.    Smith,    56   Vt.,    187-  istrators,   1237. 

190.     Garrett  v.  Pierson,  29  Iowa,  -'Comer  v.  Comer,  120  111.,  420. 
304.     Holmes  v.  McPheeters,   149 


Suits  for  Legacies,  Etc.  /T,^ 

son's  share  in  the  estate  of  his  father,  in  the  event  of  the  lat- 
ter's  dying  intestate,-"*  and  this  although  it  appears  that  the 
sum  so  received  by  the  son  was  much  less  than  his  share  of 
his  father's  estate  was  worth  ;-"'  and  such  release  precludes 
the  son  from  any  distributive  share  in  his  father's  estate  ac- 
quired since  such  relinquishment,  as  well  as  in  all  the  father  had 
at  the  time  of  the  execution  thereof.^"  So  where  one  having 
a  claim  against  an  estate  entered  into  an  agreement  with  the 
heirs,  one  of  whom  was  also  administrator,  whereby  claimant 
agreed  to  accept  a  stipulated  consideration  in  full  settlement 
of  all  claims  against  the  estate  of  said  intestate,  his  heirs  or 
administrator,  the  release  was  held  valid  as  to  any  claim  against 
the  administrator,  though  he  was  not  an  express  party  in  his 
official  capacity."^  The  Court  of  Chancery  will,  however,  set 
aside  a  release  obtained  by  the  other  next  of  kin  from  an  aged 
and  infirm  distributee,  under  circumstances  amounting  to 
fraud  f-  and  where  the  residuary  legatee,  before  an  inventor}' 
of  the  estate  was  filed,  executed  a  release  to  the  executor  of 
all  his  interest  in  the  estate  for  $700,  and  the  residue  after- 
wards proved  to  amount  to  $4,500,  such  release  was  held  not 
to  be  a  bar  to  a  suit  in  equity  to  recover  the  legacy. ^^  But 
where  a  widow  relinquished  her  right  under  an  order  of  distri- 
bution in  compromise  of  a  suit  brought  in  equity  by  creditors 
who  had  failed  to  duly  present  their  claims  to  the  administrator, 
she  cannot  afterwards  seek  to  enforce  the  order  of  distribution 
against  the  administrator. -"** 

When    Outstanding    Claim    is    no    Defense    to    Suit    for 
Legacy.  ^ 

In  any  citation  to  account,  or  suit  for  any  legacy  or  distribu- 
tive share,  it  shall  be  no  defense  that  there  are  disputed  claims 

-^Havens    v.    Thompson,    26    N.  soSmith  v.  Smith,  59  Mc,  214. 

J.   Eq.,   383.     Brands    v.    DeWitt.  ^ipirst       National       Bank       v. 

44    N.    J.    Eq.,    545.      Quarles    v.  Thompson,  61   N.  J.  Eq.,   188. 

Quarles,  4  Mass..  680.     Kenney  v.  "'-Rickey  v.   Davis,   7  N.  J.  Eq.. 

Tucker,    8    Mass.,    142.      Trull    v.  378. 

Eastman,   3    Met.,    121.      Kershaw  •"'•'■Pennington  v.  ImiwIct,  7  N.  J. 

v.   Kershaw,   102  111.,  307.     Curtis  Eq.,  343. 

V.  Curtis,  40  Me..  24.  "''Robhins  v.  Mylin,  34  N.  J.  Eq., 

-"Kenney    v.    Tucker,    8    Mass.,  205. 
142. 

48 


736  Probate  Law  and  Practice. 

outstanding  or  in  suit  against  the  estate,  if  the  executor  or 
administrator  shall  have  neglected  for  six  months  to  obtain 
an  order  to  limit  creditors,  and  to  proceed  thereon  according 
to  law,  unless  a  suit  brought  within  a  year  from  the  grant  of 
probate  or  administration  be  pending  on  such  claim."^ 

The  prohibition  contained  in  this  section  is  levied  against  a 
plea  in  abatement  in  a  suit  for  a  legacy,  but  leaves  ultimate 
rights  unaffected.  Even  if  the  executor  or  administrator  is 
unable  to  plead  want  of  assets  in  abatement,  it  does  not  follow 
that,  as  a  penalty  for  neglect  to  enter  a  rule  to  Isar  creditors 
and  to  proceed  thereon,  the  executor  shall  be  compelled  to 
pay  and  discharge  the  legacy  in  full,  upon  entry  of  judgment  or 
decree  therefor,  and  also  to  pay  a  debt  of  the  testator  upon  the 
recovery  of  such  deljt,  when  there  are  not  sufficient  assets  in 
the  estate  to  pay  and  discharge  both  the  legacy  and  the  debt. 
The  law  does  not  favor  a  forfeiture,  and  equity  abhors  one, 
and  under  such  circumstances  the  court  will  not  grant  a  decree 
directing  the  payment  of  the  legacy,  when  in  fact  the  executor 
would  not  have  sufficient  assets  in  hand  to  pay  the  creditor. 
Sections  yz,  y^  and  74  of  the  Orphans'  Court  Act'"'"  give 
relief  to  the  creditors  of  a  decedent's  estate  who  may  be  in 
such  a  situation.^'  So  where  an  executor  had  neglected  to  take 
out  a  decree  barring  creditors,  and  a  suit  was  brought  against 
him  by  a  legatee  to  recover  his  legacy,  and  it  appeared  that 
prior  to  the  bringing  of  such  suit  a  claim  against  the  executor 
had  been  presented,  which,  if  valid,  would  consume  the  entire 
balance  of  assets,  it  was  held  that  the  suit  for  the  legacy  should 
be  permitted  to  proceed,  and  if  a  decree  should  be  entered  for 
the  legatee,  it  would  be  stayed  pending  the  disposition  of  the 
action  at  law  for  the  debt.^''* 

Burden  of  Proof. 

The  complainant,  in  a  suit  to  recover  a  distributive  share, 
must  prove  affirmatively  that  he  is  entitled  as  one  of  the  next 
of  kin,  and  negatively  that  there  are  no  others  who  are  entitled, 

•"^•'Orphans'    Court    Act.    sec.   76.  370'DQi-,iie]i   y    McCann,   "j"]   N. 

3  Comp.  Stat.,  3837.  J.  Eq..   188-197. 

•■'"'Pages  578  and  579,  supra.  ^sO'Donnell   v.    McCann,   "]-    N. 

J.   Eq.,   188. 


Suits  for  Legacies,  Etc.  737 

except  those  whose  right  he  admits.  Thus,  if  one  claims  as 
an  only  child,  he  must  prove  that  he  is  the  child,  and  also  that 
there  are  no  other  children;  so  if  one  claims  as  a  nephew,  he 
must  show  the  relationship,  and  also  that  there  are  no  others 
related  in  an  equal  or  higher  degree,  other  than  those  acknowl- 
edged by  him,  or  his  claim  is  not  supported.  The  court  sIkhiUI 
be  satistied  not  only  that  the  complainant  is  entitled  to  a  i)art 
of  the  property,  but  also  to  what  part  of  it  he  is  entitled.^''' 

When  Costs  are  Chargeable  Against  Executor. 

If  an  executor  or  administrator  delay  for  an  unreasonal>le 
length  of  time  in  paying  a  legacy  or  distributive  share,  whereby 
it  becomes  necessary  for  the  legatee  or  distributee  to  bring  a 
proceeding  therefor,  such  executor  or  administrator  will  be 
charged  personally  with  all  the  costs  of  the  proceeding  to 
collect  such  legacy  or  distributive  share.'*" 

Jurisdiction  of  Chancery. 

The  Court  of  Chancery  has  general  jurisdiction  over  suits 
to  recover  legacies  and  distributive  shares;*'  and  a  l)ill  may 
be  filed  in  that  court  for  the  recovery  of  a  legacy  or  distribu- 
tive share,  either  before  or  after  the  settlement  of  the  estate 
in  the  orphans'  court.  An  action  at  law  to  recover  a  distribu- 
tive share  of  an  estate  is  purely  statutory,  and  can  be  maintained 
only  after  a  decree  of  distribution  ;  this  statutory  remedy  is 
one  given  in  addition  to  that  existing  in  equity,  and  in  no  way 
limits  or  qualifies  the  jurisdiction  of  the  Court  of  Chancery 
over  the  subject.*-  So  it  is  not  necessary  to  tender  to  execu- 
tors a  refunding  bond  before  filing  a  bill  in  the  Court  of  Chan- 
cery for  a  legacy.*" 

The  fact  that  the  accounts  of  an  administrator  have  been 
settled  in  the  orphans'  court  in  no  way  militates  against  the 

-■'Delany  v.  Noble,  3  N.  J.  Eq..  -"^Frcy    v.    Demarest.    16    N.    J. 

441.  Eq.,  236.     VanDyke   v.  VanDyke. 

*"Meeker  v.  Arrowsmith,   16  N.  72  N.  J.  Eq.,  300.     Dnrsheimcr  v. 

J.  L.,  227.  Rorhack,  23  N.  J.  Eq..  46.    Affinn- 

^^ Smith  V.  Moore.  4  X.  J.   Eq.,  ed  25  N.  J.  Eq..  516. 

Affirmed   5    N.   J.    Eq.,   649.  •'••Wilson  v.  Fislicr.  5  N.  J.  Eq., 


Hedges  v.    Norris,   32   N.  J.  Eq., 
192,  and  Reporter's  Note  at  p.  193 


49.1 


738  Probate  Law  and  Practice. 

propriety  of  the  next  of  kin  seeking  in  the  Court  of  Chancery 
an  ascertainment  of  a  distributive  share  in  a  proper  case,  where 
a  decree  of  distribution  has  not  been  made  by  the  orphans' 
court  ;^*  but  while  the  Court  of  Chancery  has  ecjuitable  juris- 
diction of  a  suit  by  legatees  to  recover  their  legacies,  notwith- 
standing the  pendency  of  probate  proceedings,  such  jurisdiction 
will  not  be  exercised,  unless  special  cause  therefor  exists.^'' 

4*VanDyke  v.  VanDyke,   73  N.  «Wyckoff   v.   O'Niel,   71    N.   J. 

J.  Eq.,  300.  Eq..  681,  and  cases  cited.     Affirm- 

ed ib.,  p.  729. 


PAKT  IV. 


Guardian  ship. 


CHAPTER  XXXW 

GUARDIANSHIP  OF  INFANTS. 

In  General. 

In  considering  the  subject  of  the  guardianship  of  infants, 
the  distinction  between  the  case  of  an  orphan,  that  is,  a  father- 
less child,  and  that  of  a  minor,  whose  father  is  living,  must  be 
kept  clearly  in  mind.  In  the  former  case,  letters  of  guardian- 
ship of  the  person  and  estate  of  the  orphan  are  granted ;  in 
the  latter,  guardianship  of  the  estate  only,  the  father  being  the 
natural  guardian  of  the  ^erson  of  his  child.  The  practice  upon 
the  application  for  guardianship  in  these  two  classes  of  cases 
differs  radically. 

Prior  to  the  enactment  of  the  act  of  1843,  neither  the  Ordi- 
nary, the  orphans'  court,  nor  the  surrogate  had  power  to 
appoint  a  guardian  of  a  child  whose  father  was  living. '^  This 
matter  is  now  governed  l\v  section  40  of  the  present  Orphans' 
Court  Act.- 

Jurisdiction. 

The  jurisdiction  of  the  Ordinary,  orphans'  court  and  surro- 
gate over  the  grant  of  letters  of  guardianship  in  uncontested 
cases  is  concurrent,  except  that  the  jurisdiction  of  the  orphans" 
court  and  surrogate  extends  only  to  minors  residing  within  their 
respective  counties.  The  statute  provides  that  if  there  be  any 
dispute  with  respect  to  the  right  of  guardiansliip,  application 
shall  be  made  to  the  orpiians"  court.''  The  CVdinary  has,  of 
course,  original  jurisdiction  o\er  matters  of  guardianship,' 
whether  contested  or  uncontested. 

The  court  is  not  authorized  to  dixide  the  guardianship  of  a 
minor   and    commit    his    propert}'    to   one   and    his   person   to 

Hn  re  VanHouten,  3  N.  J.  Eq..  "Orphans"    Court    Act,    sec.    36. 

220.  3  Coinp.  Stat.,  3825. 

^See  p.  754,  infra. 


741 


742  P'robate  Law  and  Peactice. 

another  ;^  and  this  rule  will  control  the  Prerogative  Court  in 
the  exercise  of  its  jurisdiction,  iniless  its  application  would 
work  great  hardship.^ 

Under  the  general  power  conferred  by  the  statute  to  hear 
and  determine  all  controversies  respecting  the  right  of  guard- 
ianship, the  orphans'  coiu't  has  power  to  revoke  letters  of 
guardianship  obtained  through  false  representation  f  but  an 
order  of  the  orphans'  court  revoking  letters  of  guardianship 
so  far  as  relates  to  the  person  of  the  minor,  and  leaving  them 
in  full  force  as  regards  his  estate,  is  erroneous.' 

Letters  of  guardianship  in  due  form  will  be  presumed,  in  a 
collateral  proceeding,  to  have  been  legally  issued.* 

Residence  of  Minors. 

The  residence  of  an  infant  born  in  Xew  Jersey  of  parents 
resident  here  is  presumed  to  continue  in  this  state  imtil  proof 
is  adduced  that  it  has  been  lawfully  changed.  An  infant's 
residence  will  follow  that  of  the  father  while  he  is  living;  after 
the  father's  death,  it  will,  in  general,  follow  that  of  the  mother. 
The  residence  of  an  infant,  domiciled  in  this  state  at  the  death 
of  the  father,  will  not  be  shown  to  have  been  changed  by  proof 
that  the  mother  afterwards  took  the  infant  with  her  to  a  foreign 
state,  unless  it  appears  that  the  change  of  abode  was  with  the 
intent,  on  the  part  of  the  mother,  to  abandon  the  residence 
in  New  Jersey  and  acquire  residence  in  the  foreign  state.''' 

Bond  Required. 

Guardians  of  every  character  and  description  are  required 
to  give  bond,  with  such  sureties  and  in  such  amount  as  the 
orphans'  court  or  surrogate  may  approve.  A  bond  in  double 
the  amount  of  the  personal  property  which  will  come  to  the 

^Tenbrook  v.  McColm,  12  N.  J.  sva,-(^erveere  v.   Gaston,  25  N. 

L.,  97.    In  re  Van  Houten,  3  N.  J.  J.   L-,   615,   and    see   "Validity   ot 

Eq.,  220-230.  Acts  of   Surrogate,"  p.  58,  supra. 

•'•Ross'  Case,  53  N.  J.  Eq.,  344.  also  "Validity  of  Decrees  of  Or- 

«In  re  Clement's  Appeal,  25  N.  phans'  Court,"  p.  48,  supra. 

J.  Eq.,  508.  ^Russell's    Case,    64   N.   J.   Eq., 

^Tenbrook    v.    AlcColm,    12    N.  313. 
J.  L.,  97. 


Guardianship  of  Ixfants.  74?> 

hands  of  the  guardian,  with  two  sufficient  sureties,  is  usually 
required." 

TESTAMENTARY  GUARDIANSHIP. 

In  General. 

At  common  law.  no  person  had  power  to  appoint  a  guardian 
for  an  infant  child,  by  will  or  otherwise;  this  right  was  first 
given  by  the  statute  of  12  Car.  II,  c.  24,  which  provided  that 
any  father,  whether  an  infant  or  of  full  age,  might,  by  deed 
executed  in  his  lifetime  or  by  his  last  wall  and  testament,  dispose 
of  the  custody  and  tuition  of  his  child,  either  born,  or  unborn, 
to  anv  person  or  persoi-"i.  in  possession  or  in  remainder.  This 
statute,  which  was  substantia'ly  re-enacted  in  this  state  by  the 
act  of  1795,^^  gave  the  powder  of  appointment  to  the  father; 
and  it  w^as  held  that  the  mother  had  no  powder  to  dispose  of  the 
guardianship  of  an  infant  child,  and  that  any  such  provision 
in  her  will  was  void.'-  The  present  statute,  providing  that  the 
mother  must  consent  to  the  appointment  of  a  guardian,  was 
enacted  in  1871." 

Who  May  Appoint. 

When  any  person  hath  or  shall  have  any  child  or  children  un- 
der the  age  of  twenty-one  years,  and  not  married  at  the  time 
of  his  death,  it  shall  be  law^ful  for  the  father  of  such  child  or 
children,  whether  born  at  the  time  of  the  decease  of  the  father 
or  at  that  time  in  rent  re  sa  mere,  or  whether  such  father  be 
within  the  age  of  twenty-one  years,  or  of  full  age,  by  his  deed 
executed  in  his  lifetime  or  by  his  last  will  and  testament  in 
writing,  made  and  published  by  such  father  according  to  law. 
and  proved  and  recorded  in  the  manner  prescribed  by  the  laws 
of  this  state,  to  dispose  of  the  custody  and  tuition  of  such 
child  or  children  for  and  during  such  time  as  he,  she  or  they 
shall  respectively  remain  under  the  age  of  twenty-one  years 
or  any  less  time,  to  any  person  or  persons  in  possession  or 
remainder;  provided,  that  the  mother  if  living,  consent  to  such 

^"See    "Guardians'    Bonds,"    p.  ^-In  re  Van  Houten,  3  N.  J.  Eq., 

315,  supra.  220.     In  re  Turner,   19  N.  J.  Eq., 

"Elmer's  Digest,  p.  598,  sec.  14.      433-436. 

i3See  P.  L.  1871,  p.  23. 


744  Probate  Law  and  Practice. 

appointment,  which  consent  shall  be  in  writing,  and  signed  and 
acknowledged  by  the  mother  in  the  presence  of  two  witnesses 
present  at  the  same  time,  who  shall  subscribe  their  names 
thereto  as  witnesses  in  the  presence  of  the  mother,  and  such 
consent  shall  be  proved  to  have  been  so  given  and  acknowl- 
edged at  the  time  the  will  appointing  the  testamentary  guardian 
shall  be  admitted  to  probate/* 

Authority  of  Testamentary  Guardian. 

Such  disposition  of  the  custody  of  such  child  or  children 
so  made  as  aforesaid,  shall  be  good  and  effectual  against  all 
and  every  person  or  persons  claiming  the  custody  or  tuition  of 
such  child  or  children,  as  guardian  in  socage  or  otherwise; 
and  such  person  or  persons  to  whom  the  custody  of  such  child 
or  children  hath  been  or  shall  be  so  disposed  or  devised  as 
aforesaid,  may  maintain  an  action  of  ravishment  of  ward  or 
trespass  against  any  person  or  persons  who  shall  wrongfully 
take  away  or  detain  such  child  or  children,  for  the  recovery 
of  such  child  or  children  ;  and  may  recover  damages  for  the 
same  in  the  said  action,  for  the  use  and  benefit  of  such  child 
or  children ;  and  may  take  into  his.  her  or  their  custody,  for 
the  use  of  such  child  or  children,  the  profits  of  all  lands, 
tenements  and  hereditaments  of  such  child  or  children ;  and 
also  the  custody  and  management  of  the  goods,  chattels  and 
personal  estate  of  such  child  or  children,  till  his  or  her  or 
their  respective  age  of  twenty-one  years  or  any  less  time, 
according  to  such  disposition  aforesaid ;  and  may  bring  such 
action  or  actions  in  relation  thereto,  as  by  law  a  guardian  in 
common  socage  might  do.^^ 

When  Mother  May  Appoint. 

The  mother  of  any  minor  child  or  children,  being  a  widow, 
may  by  her  last  will  and  testament  made  and  published,  and 
proved  and  recorded  according  to  law,  appoint  a  guardian  for 
her  minor  children  in  all  cases  in  which  the  father  is  author- 
ized  to  make  such  appointment ;  and  such  guardian  shall  have 
the  same  power  and  authority  in  all  respects  as  a  guardian 
appointed  by  the  father  of  a  minor  child ;    provided,  that  no 

^*2  Comp.  Stat.,  p.  2627,  sec.  i.  i"'2  Comp.  Stat.,  2627.  sec.  i. 


Guardianship  of  Infants.  /45 

guardian  shall  have  been  appointed  by  the  father  under  the  last 
preceding  section. ^^ 

Effect  of  Appointment. 

Testamentary  guardians  stand  in  loco  parentis,  and  super- 
sede guardians  appointed  by^the  orphans'  court,''  subject,  how- 
ever, to  the  power  of  the  Chancellor  as  parois  patriae  to 
change  the  custody  when  the  welfare  of  the  child  will  be  [)ro- 
nioted  thereby.^* 

What  Constitutes  Appointment. 

\o  particular  form  of  language  is  necessary  for  the  appoint- 
ment of  a  guardian  by  will.  The  manifestation  by  the  will  of 
the  intention  of  the  testator  is  all  that  is  required.  Language 
wdiich  confers,  expressly  or  by  implication,  a  power  extensive 
enough  to  include  custody  and  tuition,  the  statutory  words, 
is  enough.^'' 

The  distinction  that  runs  through  the  cases  seems  to  be  this : 
If  general  expressions  are  used  by  a  testator  conferring  ujion 
his  executor  or  trustee  power  over  both  the  person  and  the 
property  of  his  infant  child,  the  intent  to  constitute  him  also  a 
testamentary  guardian  may  be  inferred  ;  whereas  if  such  execu- 
tor or  trustee  has  only  the  custody  of  the  infant's  property,  the 
rule  is  otherwise.-"  So  where  testator  directed  by  his  will  that 
during  the  minority  of  his  daughter  the  income  of  his  estate, 
w^hich  he  had  thereinbefore  bequeathed  to  her  and  to  her  use, 
should  be  paid  to  her  mother,  she  remaining  a  widow,  for  the 
support,  maintenance  and  education  of  his  child,  it  was  held 
that  the  language  was  sufficient  to  constitute  a  testamentary 
appointment  of  the  mother  as  guardian  ;-^  but  where  testator, 
after  giving  the  residue  of  his  estate  to  his  infant  son,  ordered 
his  executors  to  invest  the  personal  estate  and  the  proceeds  of 
the  real  estate  for  his  benefit,  and  directed  as  follows:  "I  do 
further  order  that  my  executors  gi\e  unto  my  said  son  out  of 

162  Comp.  Stat.  2627,  sec.  2.  '^Macknet  v.  Macknet,  24  N.  J. 

i^In  re  Van  Houten.  3  N.  J.  Eq.,       Eq.,  277-295. 
220.  -''In  re  Van  Horn,  5  N.  J.  L.  J., 

isSlack  V.   Perrine.   19  N.  J.  L.       37^- 
J..  40.  -1  Macknet  v.  Macknet,  24  N.  J. 

Eq  ,  277-295. 


746  Probate  Law  and  Practice. 

mv  estate  a  good  college  education  and  a  decent  support  until 
he  arrives  at  the  age  of  twenty-one  years,"  it  was  held  that  the 
executors  were  not  constituted  guardians  of  the  person  of  the 
infant,  so  as  entirely  to  sui)ersede  the  natural  rights  of  the 
mother,  or  those  derived  under  the  authority  of  the  guardian 
appointed  by  the  surrogate,  although,  on  the  other  hand,  the 
duties  of  the  executors,  were  not  to  be  limited  to  the  mere 
furnishing  of  the  money  necessary  for  the  education  of  the 
child,  but,  the  right  and  power  of  directing  the  education  of 
the  infant  being  vested  in  the  executors,  they  were  entitled 
to  the  custody  of  his  person,  so  far  as  necessary  and  proper  for 
the  purpose  of  education. -- 

Effect  of  Caveat  Against  Probate  of  Will. 

Tile  filing  of  a  caveat  against  a  will  appointing  a  guardian 
for  infants  raises  a  doubt  as  to  the  validity  of  the  appointment, 
and  prevents  the  testamentary  guardian  from  prosecuting  a 
claim  to  the  sole  custody  of  the  children.-' 

Acceptance  of  Guardianship. 

Every  guardian  appointed  by  last  will  and  testament,  which 
shall  be  legally  proved  and  recorded,  shall,  before  he  exercise 
any  authority  over  the  minor  or  his  estate,  appear  before  the 
orphans'  court  or  surrogate  and  declare  his  acceptance  of  the 
guardianship,  which  shall  be  recorded.-* 

Bond  Required. 

A  testamentar}'  guardian  is  required  to  give  a  bond  with 
such  sureties  and  in  such  sum  as  the  orphans'  court  or  surro- 
gate may  approve  of  and  order  for  the  faithful  execution  of 
his  office,  unless  it  is  otherwise  directed  by  the  testator's  will.-' 
A  bond  in  double  the  amount  of  the  personal  property  which 
will  come  to  the  hands  of  the  guardian,  with  two  sufficient 
sureties,  is  usually  required.-'' 

=-In  re  Van  Houten.  3  N.  J.  Eq.,  -■'Orphans'    Court    Act,   sec.   50. 

220.  3  Comp.  Stat.,  3829. 

23Slack  v.  Perrine,  19  N.  J.  L.  -^Orphans'   Court   Act,   sec.   50. 

J.,  40.  3  Comp.  Stat.,  3829. 

-^See    "Guardians'    Bonds,"    p. 
315.  supra. 


Guardianship  of  Infants.  747 

Practice  on  Application. 

The  application  should  be  by  petition  containing  the  recitals 
contained  in  Orphans'  Court  Rule  thirteen.'-"  and  should  ha\e 
annexed  thereto  the  acceptance  by  the  guardian  of  his  appoint- 
ment.-^ 

Control  of  Appointment  by  Court. 

Where  bv  any  last  will  and  testament,  the  testator  shall  dis- 
pose of  the  custody  and  tuition  of  his  minor  child  or  children, 
and  such  last  will  and  testament  shall  be  offered  for  probate, 
it  shall  be  lawful  for  the  ordinary  or  orphans'  court,  upon 
petition  alleging  cause,  and  after  notice  to  the  testamentary 
guardian  named  in  the  proferred  last  will  and  testament,  to  in- 
quire into  the  present  custody  of  such  infants,  and,  after  hear- 
ing, make  such  order  touching  testamentary  guardianship  as 
mav  be  for  the  best  interests  and  welfare  of  the  infants.-" 

APPOINTMENT  OF  GUARDIANS  FOR  ORPHANS. 

WHERE  ORPHAN  IS  OVER  FOURTEEN  YEARS  OF  AGE. 
Application  for  Letters. 

When  an  orphan  is  of  the  age  of  fourteen  years  or  upwards, 
letters  of  guardianship  shall  be  granted  on  petition  to  the 
orphans'  court  or  surrogate,  signed  by  such  orphan  in  the 
presence  of  the  surrogate,  deputy  surrogate,  or  a  special  master 
of  the  court  of  chancery  of  this  state.''" 

The  appointment  of  a  testamentar}-  guardian  for  an  infant  by 
a  person  authorized  to  make  such  appointment  destroys  the 
right  of  the  infant  to  select  his  own  guardian.^^ 

Form  of  Application. 

Application  for  letters  of  guardianship  shall  l)e  in  writuig, 
verified  by  affidavit;  such  application  shall  state  the  age  and 
residence  of  the  minor,  the  names  and  residences  of  his  nearest 

="This  page,  infra.  soorphans'    Court   Act.    sec.   37- 

s^Orphans'    Court    .\ct,  sec.    50.       3  Comp.  Stat.,  3S-'6. 

3  Comp  vStat.,  3829.  '■'Sec   "Tcsfmuntarv    Cuardian- 

290rphans'    Court   Act,  sec.    3,P>.       ship."'  p.  7-I3.  supra. 

3  Com]).  Stat..  3826. 


748  Probate  Law  and  Practice. 

of  kin,  the  names  and  residences  of  all  persons  standing  in 
loco  parentis  to  such  minor,  if  any,  and  the  names  and  resi- 
dences of  the  persons  with  whom  he  resides,  and  shall  have 
annexed  thereto  an  affidavit  of  the  value  of  the  personal  estate 
of  said  minor  and  the  amount  of  the  income  from  any  real 
estate  belonging  to  him.  In  the  case  of  applications  by  orphans 
over  the  age  of  fourteen,  the  foregoing  affidavit  shall  be  made 
by  some  person  having  personal  knowledge  of  the  value 
of  the  personal  estate  of  said  minor  and  the  amount  of  the 
income  from  any  real  estate  belonging  to  him.^'- 

Where  Minor  is  Out  of  the  State. 

When  an  orphan  is  of  the  age  of  fourteen  years,  or  upwards, 
and  is  out  of  this  state,  letters  of  guardianship  shall  be  granted 
in  this  state,  on  petition  to  the  orphans'  court  or  surrogate, 
signed  by  such  orphan  in  the  presence  of  a  judge  of  a  court 
of  record  in  the  state,  territory  or  country  in  which  such 
orphan  may  be.  which  signature  shall  be  acknowledged  before 
said  judge,  in  the  same  manner  and  form  as  deeds  are  re(|uired 
to  be  acknowledged  by  the  laws  of  this  state  ;  or  when  said 
orphan  is  out  of  the  United  States,  on  a  petition  signed  and 
acknowledged  as  aforesaid  h\  such  orphan  before  any  public 
ambassador,  minister,  consul,  vice-consul,  consular  agent,  or 
charge  d'affaires  or  other  representative  of  the  United  States 
for  the  time  being  in  the  empire,  kingdom,  state  or  country 
where  said  orphan  was  at  the  time  of  signing  and  acknowl- 
edging such  petition."" 

Selection  of  New  Guardian  by  Orphan  After  Arriving  at  the 
Age  of  Fourteen. 

The  statute,"*  provides  that  the  person  appointed  guardian 
of  an  orphan  under  the  age  of  fourteen  shall  remain  the  lawful 
guardian  of  such  orphan  until  the  said  orphan,  after  arriving 
at  the  age  of  fourteen,  shall  choose  another  guardian. 

A  guardian  appointed  for  a  minor  under  fourteen  thus  re- 
mains the  lawful  guardian  of  the  orphan  until  the  said  orphan. 

32Qj-pi-,^^ris'   Court   Rule.    13.  "*Orph.Tns'    Court    Act.    sec.    2>7. 

'•''Orphans'   Court    Act,    sec.   41.       p.   747.   supra. 
3  Comp.  Stat.,  3827.  • 


Guardianship  of  Infants.  749 

after  arriving  at  the  age  of  fourteen,  shall  choose  another 
guardian  ;  there  is  no  termination  of  the  guardianship  by  the 
simple  fact  of  the  orphan  arriving  at  the  age  of  fourteen  years. 
The  statute  expressly  declares  otherwise,  and  provides  also  that 
the  bond  given  by  a  guardian  for  an  infant  under  fourteen  shall 
continue  in  force  after  the  infant  reaches  fourteen.  There  is 
no  ])ower  in  a  surrogate  to  remo\e  a  guardian,  nor  is  there  any 
in  the  infant.  The  infant  only  has  power,  after  arri\ing  at 
fourteen,  to  choose  another  guardian.  That  ])ower  of  the  infant 
is  not  arbitrar}-.  nor  without  restriction.  When  the  infant, 
having  the  right  of  choice  of  another  joerson  for  guardian, 
elects  to  exercise  that  choice,  that  is  a  controversy  about  the 
guardianship  which  is  determinable  only  by  the  orphans'  court 
under  its  general  powers,  conferred  by  section  two  of  the 
Orphans'  Court  Act ;  and  its  power  to  appoint  a  new  guardian 
of  the  choosing  of  the  infant  can  only  be  exercised  upon  a 
petition  by  the  infant  under  the  form  required  by  the  first  para- 
graph of  section  thirty-seven,''^  where  an  infant  over  fourteen 
petitions  for  a  guardian  in  the  first  instance.^*' 

Practice  on  Application. 

In  case  any  orphan,  for  whom.  Avhile  under  the  age  of  four- 
teen years,  a  guardian  has  been  appointed,  desires,  upon  arriv- 
ing at  the  age  of  fourteen  years,  to  choose  another  guardian, 
application  may  be  made  to  the  orphans'  court  of  the  county 
wherein  the  original  letters  of  guardianship  were  granted, 
which  ai)i)lication  shall  be  signed  i)y  the  minor  in  the  presence 
of  the  v^urrogate,  Deinity-Surrogate,  or  a  special  master  in 
chancery  of  New  Jersey,  and  shall  be  in  conformitv  with  the 
requirements  of  rule  thirteen.^" 

The  same  notice  of  such  application  shall  be  given  to  the 
existing  guardian,  and  also  to  the  next  of  kin.  ])ersons  stand- 
ing in  loco  parentis  and  persons  with  whom  such  minor  may 
reside,  as  is  ])rescribed  in  rule  fourteen  ^^" ;  upon  such  applica- 
tion, the  court  .shall  incfuire  into  the  circumstances  of  the  case, 
and  shall  take  such  action  in  respect  to  the  a])pointment  of  a 

"''Page  747,  supra.  •''Orphan.s'  Court  Rule  15.     For 

^^Matter    of     Guardianship    of  l\ule  13  see  page  747,  supra. 

Ida    S.    Smitli.    Rssex    Orphans'  ^'"See  page  752,  infra. 

Court,  May  12,  1899,  Fort,  J. 


750  Probate  Law  and  Practice. 

guardian,  or  guardians  for  such  minor,  as  shall  seem  to  be 
for  his  best  interest  and  advantage. ^'^ 

WHEN  ORPHAN  IS  UNDER  FOURTEEN. 
Who  Entitled. 

When  an  orphan,  is  under  the  age  of  fourteen  years,  the 
mother,  or  next  of  kin  of  full  age,  and  where  there  are  several 
relations  in  equal  degree  of  kindred,  any  one,  giving  due  notice 
to  the  rest,  may  apply  to  the  orphans'  court  or  surrogate 
for  the  guardianship  of  such  orphan,  who  upon  inquiry  into 
the  circumstances  of  the  case,  may  admit  one  or  more  of  them, 
or  a  stranger  willing  to  accept  the  trust,  at  its  or  his  dis- 
cretion, to  be  guardian  or  guardians  of  such  orphans,  until  he 
or  she  attains  the  age  of  fourteen  years  or  other  guardian 
or  guardians  be  appointed  in  his  stead  ;•'■'  and  the  person  or 
persons  so  appointed  such  guardian  or  guardians  shall  remain 
the  lawful  guardian  or  guardians  of  such  orphan,  under  the 
said  letters  of  guardianship,  until  the  said  orphan,  after  arriv- 
ing at  the  age  of  fourteen,  shall  choose  another  guardian  or 
guardians,  and  the  bond  given  thereon  shall  continue  in  full 
force ;  but  where  the  orphan  after  arriving  at  the  age  of  four- 
teen years,  shall  choose  any  other  person  or  persons  to  be 
guardian  or  guardians,  letters  of  guardianship  shall  be  applied 
for,  as  before  directed,  and  all  proceedings  thereon  be  had 
accordingly.'"^ 

If  a  testamentary  guardian  for  an  infant  has  been  appointed 
l)y  a  person  authorized  to  make  such  appointment,  the  right 
of  the  next  of  kin  to  guardianship  of"  such  infant  is  destroyed.'*^ 

Right  of  Mother, 

The  mother,  and  after  her  the  nearest  of  kin,  are  entitled 
to  the  guardianship  of  orphan  children  under*  the  age  of  four- 
teen after  the  father's  death,  and  their  claim  cannot  be  dis- 
regarded, except  for  some  satisfactory  reason,  apparent  to  the 

^''Orphans'   Court  Rule,    15.  ^"Orphans'    Court    Act,    sec.   2i7- 
39For   practice    on    appointment  3  Comp.  Stat..  3826. 
of  new  guardian  after  orphan  has  *^See  "Testamentary  Guardian- 
attained  the  age  of  fourteen,  see  ship."'  p.  743.  supra, 
p.  74Q.  supra. 


Guardianship  of  Infants.  751 

court  ;^-  but  the  right  of  the  mother  must  be  held  in  subordi- 
nation to  the  rights  and  welfare  of  the  child. *'^  So  where  an 
infant  had  not.  since  early  infancy,  been  under  the  care,  con- 
trol or  custody  of  the  mother,  or  been  in  any  way  interfered 
with  or  provided  for  by  her.  l)Ut  had  been  under  the  care  and 
guardianship  of  her  paternal  grandfather  and  his  family,  to 
whose  charge  she  was  committed  by  the  mother  for  a  fteriod 
of  nearly  eight  years,  and  no  objection  whatever  was  suggested 
to  the  mode  of  treatment  which  she  had  experienced,  or  to 
the  care  and  control  which  had  been  exercised  over  her,  it 
was  held  that  the  interest  of  the  infant  w^ould  not  be  promoted 
by  a  change  in  her  position,  social  relations,  habits  of  life  and 
mode  of  training,  and  that  it  was  obviously  for  her  best  inter- 
ests that  she  should  remain  where  she  was  until  she  was  at 
liberty  to  choose  a  guardian  for  herself  ;  and  the  application  of 
the  mother  for  guardianship  of  the  infant  was  denied,  and 
letters  granted  to  the  grandfather.''* 

Where  the  mother  is  unfitted  by  loss  of  intellect  or  want  of 
female  virtue  for  the  proper  care  and  training  of  the  child, 
where  her  house  is  the  resort  of  improper  company  or  is  other- 
wise an  unfit  place  for  the  training  of  a  child  of  tender  years, 
where  the  children  are  trained  in  habits  of  vice  or  profligacy, 
or  where  from  any  cause  no  proper  moral  or  social  restraint 
is  exerted,  but  counter-influences  are  continually  operating  to 
an  extent  destructive  of  morals  and  virtue,  in  these  and  in  like 
cases  the  court  is  justified  in  refusing  to  place  a  child  of  tender 
years  within  her  influence.*^ 

Where  Mother  is  Dead. 

Where  the  mother  is  dead,  as  between  relations  having  no 
legal  claim  to  the  services  of  the  infant,  a  greater  latitude  of 
discretion  is  allowed  the  court ;   and  a  reason  which  might  not 

*-Eldridge  v.  Lippincott.  i  N.  J.  Eq.,  .^45.     Reversed  47  N.  J.  Eq., 

L.,  397.     Read  v.  Drake,  2  N.  J.  302. 

Eq.,  78.     Albert  v.  Perry,  14  N.  J.  ••^Albert  v.  Perry,  14  N.  J.  Eq., 

Eq.,  540.     Weldon  v.  Keen,  zi  N.  540.     Luppie  v.  Winans,  37  N.  J. 

J.     Eq.,     251-253.      Woodruff     v.  Eq..  245-248.     Reversed  47   N.  J. 

Snoover,  45  Atl.  Rep..  980.  Eq.,  302. 

^•''Albert  V.  Perry,  14  N.  J.  Eq..  ■'■'"'Albert  v.  Perry,  14  N.  J.  Eq., 

540.     Luppie  V.  Winans,  37  N.  J.  540 

49 


752  PROBATii  Law  and  Practice. 

be  sufficient  to  bar  the  legal  rights  of  the  mother  may  suffice 
to  decide  the  question  between  the  claims  of  other  relations. 
As  the  guardianship  of  the  orphan  involves  the  charge  both  of 
the  person  and  the  estate,  it  is  important  that  the  person  to 
whom  the  charge  is  entrusted  should  not  only  be  a  capable  and 
fit  person  to  take  charge  of  the  estate,  but,  in  the  case  of  an 
infant  of  tender  years,  should  be  qualified,  either  personally 
or  through  his  family,  to  superintend  the  habits  and  training 
of  the  ward.**' 

The  paternal  kin  are  not  entitled  to  any  preference  over  the 
maternal,  but  both  stand  on  the  same  footing.*'  As  a  general 
rule,  where  there  are  several  next  of  kin,  the  court  will  appoint 
as  guardian  the  person  nearest  in  relationship  to  the  orphan, 
unless  there  is  something  which  unfits  him  from  acting;*^  and 
the  court,  in  the  absence  of  disqualifying  objections  to  the 
next  of  kin,  cannot  appoint  a  stranger,  except  with  the  consent 
of,  or  upon  notice  to  such  next  of  kin  entitled  to  guardian- 
ship.*® 

Where  Ijoth  parents  of  an  infant  are  dead,  in  the  absence  of 
any  direction  or  expressed  preference  by  the  father  as  to  the 
guardianship  or  religious  education  of  his  child,  the  clearly 
expressed  wishes  of  the  mother  during  her  lifetime  will  be 
regarded,  if  not  contrary  to  the  best  interest  of  the  child.®" 

Application  for  Letters. 

The  same  form  of  application  for  letters  of  guardianship 
is  required  where  the  orphan  is  under  fourteen  as  in  the  case 
of  an  orphan  over  fourteen  except  that  the  petition  is  by  the 
applicant  instead  of  the  orphan.®^ 

Notice  of  Application  for  Guardianship. 

Where  application  for  letters  of  guardianship  of  an  orphan 
under  fourteen  or  for  guardianship  upon  the  estate  of  a  minor 

^^Albert  v.   Perry,  14  N.  J.  Eq.,  ^oWeldon  v.  Keen,  Zl  N.  J.  Eq., 

540.  251. 

^^Albert  v.  Perry,  14  N.  J.  Eq.,  sojn    re   Turner,    19   N.   J.   Eq., 

540.    In  re  Anne  Turner,  19  N.  J.  '433. 

Eq.,  433-436.  5i3eg  p   -47^  supra. 

■'^Woodruff  V.  Snoover,  45  Atl. 
Rep.,  980. 


Guardianship  of  Infants.  753 

whose  father  is  Hving.  is  made  by  any  person  other  than  the 
next  of  kin  or  party  tirst  entitled,  or  by  one  of  several  equally 
entitled  to  receive  letters  of  guardianship,  the  person  making 
such  application  shall  produce  to  the  Surrogate  or  Orphans' 
Court  the  renunciation  and  request  of  such  persons  so  entitled 
and  of  the  person  or  persons  standing  in  loco  parentis  to  said 
minor,  if  any,  and  also  of  the  persons  with  whom  said  minor 
resides,  that  letters  be  issued  according  to  the  application,  or 
proof  that  at  least  ten  days'  notice  has  l)een  given  to  all  of  the 
next  of  kin  or  parties  by  law  entitled  to  such  guardianship, 
and  to  all  persons  standing  in  loco  parentis  to  said  minor,  if 
any,  and  also  to  the  persons  with  whom  said  minor  resides,  who 
reside  in  this  state ;  or  that  not  less  than  ten  nor  more  than 
sixty  days'  notice,  as  the  court  or  Surrogate  may  by  order 
direct,  has  been  given  to  the  said  next  of  kin  or  parties  l)y 
law  entitled  to  such  guardianship,  and  to  any  person  standing  in 
loco  parentis  to  said  minor,  and  to  the  persons  with  whom  the 
said  minor  may  reside,  who  shall  reside  without  this  state. 
Notice  to  non-residents  of  the  State  of  New  Jersey  may  be 
sent  by  mail,  with  the  postage  thereon  prepaid,  addressed  to  the 
last  known  residence  of  such  next  of  ki^i,  person  standing  in 
loco  parentis,  person  with  whom  said  minor  may  reside,  or 
persons  by  law  entitled  to  such  guardianship.  The  application 
and  the  renunciation  and  request,  if  any,  shall  be  recorded  by 
the  Surrogate  in  a  book  to  be  kept  for  that  purpose. ^- 

It  has  already  been  seen  that  the  mother  is  first  entitled  to 
guardianship  of  her  minor  child  ;  no  notice  of  her  application 
is  therefore  necessary.  If,  during  the  lifetime  of  the  mother, 
others  of  the  next  of  kin  apply  for  letters  of  guardianshi]), 
notice  of  such  application  must  be  given  to  the  mother.  So 
where  a  mother  was  appointed  guardian  of  her  child,  but  failed 
to  give  bond  within  the  time  limited  by  the  court,  and  the  court, 
without  notice  to  her,  appointed  a  stranger  in  her  stead,  the 
appointment  of  the  latter  was  held  not  warranted  f'  but  where 
no  notice  of  application  for  the  appointment  for  an  infant  under 
the  age  of  fourteen  had  been  given,  Imt  the  application  was 

520rphans'  Court  Rule  14.     Sec  "'nVeldon  v.  Keen.  37  N.  J.  Kq.. 

Orphans'    Court    Act.    sec.   37-     .3       ^.t'- 
Coinp.  Sl;it..  3826.  p.  7\7.  suprn. 


754  Probate  L(AW  and  Practice. 

afterwards  fully  heard  in  the  presence  of  all  of  the  parties 
interested,  the  order  appointing  a  guardian  will  not  be  re- 
versed.^* 

Where  Next  of  Kin  are  Non-Resident. 

Where  it  shall  he  made  to  appear  upon  oath,  to  the  satis- 
faction of  the  orphans'  court  or  surrogate,  that  the  next  of 
kin  of  any  orphan  minor  under  the  age  of  fourteen  years  re- 
siding in  this  state,  do  not  reside  within  this  state,  the  orphans' 
court  or  surrogate  may  take  such  action  in  respect  to  the  ap- 
pointment of  a  guardian  or  guardians  of  said  minor  as  shall 
seem  to  be  for  his  best  interest  and  advantage.''^ 

APPOINTMENT  OF  GUARDIAN  OF  ESTATE  OF  MINOR. 

Jurisdiction. 

If  any  minor  shall  become  seized  or  possessed  of  or  be 
entitled  to  any  real  or  personal  estate  in  the  lifetime  of  the 
father  or  mother  of  such  minor,  the  ordinary  or  the  orphans' 
court  or  surrogate  of  the  county  where  such  minor  resides  or 
such  real  or  personal  estate  may  be,  may  appoint  the  father 
or  other  suitable  person  guardian  of  the  estate  of  such  minor.^' 
Neither  the  Ordinary,  orphans'  court  nor  surrogate  has  power 
to  appoint  a  guardian  for  a  minor  whose  father  is  living,  unless 
the  child  owns  property.^' 

Necessity  for  Appointment. 

The  father  is  the  guardian  by  nature  of  his  minor  children  : 
but  a  guardian  by  nature  is  guardian  of  the  person  only,  and 
not  of  the  estate.  When,  therefore,  a  child  in  the  lifetime  of 
his  father  becomes  vested  with  personal  property,  the  father 
is  not  entitled  to  receive  it.  The  only  person  entitled  is  the 
guardian  duly  appointed  by  some  public  authorit}.'''' 

'*Luppie    V.    Winans.    27    N.    J.  ^''Orphans'    Court    .-\ct,    sec.   40. 

Eq.,  245.     Reversed  47  N.  J.  Eq.,       3  Comp.  Stat.,  3827. 
302.  s^Friesner  v.  Symonds.  46  N.  J. 

^^Orphans'   Court    Act,    sec.   42.       Eq.,  521. 
3  Comp.  Stat..  3827.  ssGraham  v.  Houglifalin,  30  N. 

J.  L.,  552. 


Guardianship  of  Infants.  755 

Who  Entitled. 

Tlie  father,  while  living,  is  as  has  Ijeen  seen,  the  r.atin'al 
guardian  and  protector  of  his  child,  and  cannot  he  divested  of 
the  privilege  except  under  extraordinary  circumstances.  In 
case  of  the  father's  death,  the  mother  succeeds  him  as  guardian 
hy  nature.®" 

Practice. 

The  application  for  guardianship  of  the  estate  of  a  minor 
whose  father  or  mother  is  hving  is  made  hy  the  applicant,  irre- 
spective of  whether  the  minor  is  over  fourteen  years  of  age 
or  not.  The  only  case  in  which  an  infant  over  fourteen  is 
permitted  to  select  his  own  guardian  is  that  of  an  orphan  minor 
applying  for  letters  of  general  guardianship  pursuant  to  the 
provisions  of  section  37  of  the  Orphans'  Court  Act.'"'  The  ap- 
plication should  l>e  in  the  same  form  as  is  prescril)ed  in  other 
cases. *^^ 

Notice  of  Application. 

If  the  application  he  made  by  one  other  than  the  father, 
notice  of  such  application  must  be  given  as  in  other  cases.*'' 

APPOINTMENT  OF  GUARDIAN  FOR  CHILD  OF  ABSENT 
OR  ABSCONDING  PARENT. 

Statutory  Provisions. 

If  any  citizen  of  this  state  has  absconded,  or  shall  here- 
after abscond  or  absent  himself  from  this  state  for  the  term 
of  two  years,  leaving  in  this  state  any  child  or  children  under 
the  age  of  twenty-one  years,  without  competent  and  suitable 
provision  for  their  maintenance  and  education,  the  orphans' 
court  or  surrogate  of  the  county  where  such  child  or  children 
reside,  on  application  of  the  said  child  or  children,  or  of  his, 
her  or  their  next  of  kin.  may  appoint  a  guardian  for  such 
child  or  children,  and  said  court  may  revoke  such  appoint- 
ment as  the  said  court  shall  see  occasion ;  which  guardian  shall 

snjn  re  Van  Houten.  3  N.  J.  Eq.,  f'lOrphans'    Court    Rule    13,    p. 

220.  74-^  supra. 

'»Page  747,  supra.  "^Orphans'    Court    Rule    14.    p. 

752.  supra. 


756  Probate  Law  and  Practice. 

have  tlie  same  authority  over  the  said  child  or  children  as 
guardians  have  in  other  cases,  until  the  revocation  of  his  au- 
thority as  aforesaid,  notwithstanding  any  right  or  claim  of  au- 
thority of  the  said  parent,  and  may  lawfully  do  all  acts  for  the 
maintenance  and  education  of  the  said  child  or  children  and 
the  disposition  of  his  or  her  time  and  services  which  the  said 
parent  could  lawfully  do.''^ 

It  is  to  be  observed  that  this  section  does  not  require  that 
the  children  with  whom  it  deals  be  possessed  of  property,  but 
contemplates  the  appointment  of  a  guardian  for  the  purpose 
of  providing  for  their  education  and  maintenance.  The  letters 
granted  should  doubtless  be  of  the  person  and  estate  of  the 
infant,  and  the  guardian  so  appointed  may  lawfully  claim  any 
property  to  which  his  ward  becomes  entitled. 

Practice  on  Application. 

The  same  practice  as  to  the  form  and  contents  of  the  appli- 
cation,'^* and  as  to  giving  notice  of  such  application,*'^  is  fol- 
lowed as  in  all  other  applications  for  letters  of  guardianship. 

The  statute  provides  that  the  application  shall  be  by  the  child 
■or  his  next  of  kin.  It  would  therefore  appear  that  when  the 
child  is  over  fourteen  he  should  make  the  application,  while  in 
the  case  of  a  child  under  fourteen  the  application  should  be  by 
the  next  of  kin. 

APPOINTMENT    OF    SPECIAL    GUARDIANS. 

Statutory  Provisions. 

The  ordinary  shall  have  full  authority  to  appoint  a  special 
guardian  for  the  property,  real  or  personal,  within  this  state  of 
any  non-resident  minor,  and  the  orphans'  court  or  surrogate 
of  any  county  shall  have  concurrent  authority  to  appoint  a 
special  guardian  for  any  property,  real  or  personal,  within 
said  county  of  any  minor  residing  without  the  state ;  and  said 
courts  shall  have  authority  to  control,  remove  or  substitute 
such  guardian,  and  in  any  case  not  already  provided  for  by 

630rphans'    Court  Act.   sec.   39.  esSee  Orphans'  Court  Rule  14. 

3  Comp.  Stat.,  3826.  p.  752,  supra. 

""•See  Orphans'  Court  Rule   13, 
p.  747,  supra. 


Guardianship  of  Ixfants. 


/?/ 


statute  or  the  rules  of  the  court,  the  court  shall  take  such  action 
in  the  matter  as  it  shall  deem  most  for  the  advantage  of  the 
infant.®^ 

Attention  is  called  to  the  fact  that  a  guardian  appointed  by 
the  surrogate  under  the  provisions  of  this  section  may  be  re- 
moved by  him.  The  statute  provides  that  the  Ordinary,  or- 
phans' court  or  surrogate  may  make  such  appointment,  and 
that  "said  courts  shall  have  authority  to  control,  remove  or 
substitute  such  guardian  ;"  and  it  is  entirely  settled  that  in  ap- 
pointing a  guardian  the  surrogate  holds  a  court. 

APPOINTMENT  OF  GUARDIANS  AD   LITEM. 

Practice  on  Application  on  Behalf  of  Infant. 

Whenever  it  shall  be  necessary,  in  any  cause  or  proceeding 
in  the  Orphans'  Court,  that  a  guardian  ad  litem  for  any  infant 
or  incompetent  party  thereto  should  be  appointed,  a  petition 
may  be  presented  by  the  infant,  if  above  the  age  of  fourteen 
years,  or,  if  under  that  age,  by  his  guardian  appointed  by  the 
Surrogate  or  Orphans'  Court,  his  father,  or  some  other  friend 
in  his  behalf,  praying  such  appointment.  In  the  case  of  an 
incompetent  party  the  petition  shall  be  by  his  guardian  ap- 
pointed by  the  Orphans'  Court  or  some  next  friend  in  his  be- 
half. Annexed  to  the  petition  there  shall  be  an  agreement,  bv 
the  person  petitioned  for  as  guardian,  to  accept  the  appointment, 
and  also  an  affidavit  that  the  petition  and  agreement  were  duly 
signed  by  the  persons  purporting  to  sign  them,  and  verifving 
the  age  of  the  infant.*^" 

Where  No  Application  is  Made  on  Behalf  of  Infant  or  In- 
competent. 

If  no  application  shall  be  made  by  or  on  behalf  of  the  infant 
or  incompetent  party  within  five  days  after  the  service  upon 
him  of  the  citation  or  other  authoritative  command  of  the 
court  to  appear,  &c.,  the  Orphans'  Court  may.  on  application 
on  behalf  of  the  party  instituting  or  prosecuting  the  proceed- 
ings, by  its  order  assign  a  guarrlian  ad  Vitcui  for  said  infant 

«80rphans'    Court   Act,    sec.  43.  cTQrphans'  Court  Rule  46. 

3  Comp.  Stat.,  3827. 


758  Probate  Law  and  Practice. 

or  incompetent  party ;  but  ten  days'  notice  of  such  application 
must  be  given  to  the  infant,  if  of  the  age  of  fourteen  years  and 
resident  within  this  State,  or.  if  under  that  age  or  not  a  resi- 
dent in  this  State,  to  his  guardian  appointed  by  the  Surrogate 
or  Orphans'  Court,  if  any  there  be,  and  if  no  such  guardian, 
to  the  father  of  such  infant,  or,  if  no  father,  then  to  the  mother, 
or,  if  no  mother,  to  the  person  standing  in  loco  parentis  to  the 
infant ;  provided  such  guardian,  father  or  mother,  &c.,  be 
resident  in  this  State,  which  notice  may  be  served  at  the  time 
of  service  of  the  process  of  citation  or  at  any  time  thereafter. 
If  such  guardian,  father  or  mother,  &c.,  be  not  resident  in  this 
State,  such  notice  shall  be  given  as  the  court  may  by  order 
direct.  In  the  case  of  an  incompetent  person,  ten  days'  notice 
of  such  application  shall  be  served  upon  him  and  also  upon  his 
gtJardian  appointed  by  the  Orphans'  Court,  if  any  there  be, 
and  if  no  such  guardian,  then  upon  such  persons  as  the  court 
may  by  order  direct. *^^ 

APPEAL. 
From  Appointment  of  Guardian  by  Surrogate. 

Any  person  aggrieved  by  any  order  of  the  surrogate  in  grant- 
ing letters  of  guardianship  may  appeal  to  the  orphans'  court, 
by  filing  a  petition  of  appeal  with  the  surrogate  within  twenty 
days  after  such  order  is  made.''^ 

From  Appointment  of  Guardian  by  Orphans'  Court. 

An  appeal  lies  to  the  Prerogative  Court  from  a  decision  of 
the  orphans"  court  granting  letters  of  guardianship.'" 

POWERS   AND    DUTIES   OF   GUARDIANS. 

In  General. 

A  guardian  appointed  l:)y  the  orphans'  court  or  surrogate 
under  the'  statute  supplies  the  place  of  both  a  guardian  for 
nurture  and  a  guardian  in  socage,  in  the  ancient  law.     Such 

^^Orphans'  Court  Rule  47.  supra. 

^^Orphans'  Court  Act,  sec.  201.  '^Read   v.   Drake,   2   N.  J.   Eq.. 

3  Comp.  Stat..  3888.    For  practice  78.     Albert  v.  Perry.  14  N.  J.  Eq.. 

on    appeal,    see    "Appeals,"    p.   74,  540. 


Guardianship  of  Infants.  759 

guardian  has  not  only  the  custody  of  the  person  of  his  ward, 
but  also  the  care  of  his  land.'^  The  office  of  a  guardian  is  that 
of  a  trustee.  He  is  charged  with  the  duty  of  collecting  and 
receiving  the  choses  in  action  of  the  ward,  and  may  execute 
receipts  and  discharges  for  the  same."-'  The  power  of  a  guard- 
ian over  the  person  and  property  of  a  female  infant,  however, 
ceases  at  her  marriage:  from  that  time  such  guardianship 
(iexolves  upon  tlie  husband."" 

Power  to  Contract. 

A  guardian  has  no  authoritx  whatever  to  l)ind  either  the 
person  or  the  estate  of  his  ward  by  contract.  It  is  his  duty  to 
see  that  his  ward  is  maintained  and  educated  in  a  manner  suit- 
able to  his  means;  and  if,  in  the  performance  of  this  duty, 
it  becomes  necessary  for  him  to  enter  into  contracts,  such  con- 
tracts impose  no  duty  on  the  ward,  and  do  not  bind  his  estate. 
l)Ut  bind  the  guardian  personally  and  alone.  For  any  reason- 
able expenditure  made  by  the  guardian  out  of  his  own  means 
for  the  benefit  of  his  ward,  he  is  of  course  entitled  to  be  re- 
imbursed out  of  the  ward's  estate  ;  but  this  is  the  limit  of  the 
ward's  liability,  whether  measured  by  rules  of  law  or  of  equity. 
A  guardian  is  without  the  least  capacity  or  authority  to  impose 
contract  obligations  on  his  ward.  lie  may  do  so  under  the 
direction  of  a  court  of  competent  jurisdiction  ;  but  he  does  not 
exercise  in  such  cases  a  power  belonging  to  his  office,  but  an 
extraordinary  power  conferred  for  a  special  purpose.'* 

Power  to  Compromise  Claims. 

A  guardian  can  compound  and  settle  a  claim  due  the  ward. 
He  stands  in  the  same  position  as  any  other  trustee,  and  may 
generally,  when  acting  in  good  faith,  compound  or  release  a 
debt  due  the  trust  estate.  Such  composition  or  release,  for  a 
valuable  consideration,  is  prima  facie  valid  and  effectual ;  and 
if  the  ward,  after  coming  of  age,  seeks  to  impeach  it,  the  burden 

7iVan  Doren  v.  Everitt,  5  N.  J.  T:^Porch   v.   Fries,   18  N.  J.   Eq., 

h..  539-  204. 

^-Ordinary  v.  Dean.  44  N.  J.  L.,  "•'Reading    v.    Wilson,   38   N.   J. 

64-67.       Brooks     V.     Metropolitan  Eq.,  446. 
Life   Insurance   Co.,   70  N.  J.  L., 
36-40. 


760  Prodate  Law  and  Pkactici:. 

is  upon  him  to  show  that  it  was  not  made  in  good  faith,  but 
in  fraud  of  his  rights.'^ 

Power  over  Lands  of  Ward — In  General. 

A  guardian  appointed  by  the  orphans'  court  or  surrogate  is 
charged  with  the  care  of  his  ward's  lands,  and  is  entitled  to 
the  possession  thereof.^''  Thus,  he  may  make  leases  of  his 
ward's  lands ;  and  if  he  make  a  lease  to  continue  beyond  his 
guardianship,  it  is  not  absolutely  void  upon  the  infant  coming 
of  age,  but  voidable  only,  and  consequently  the  infant  may  at 
that  time  either  affirm  or  avoid  the  lease  at  his  pleasure.  And 
so  a  guardian  may  expend  rents  of  his  ward's  lands  in  satisfy- 
ing an  incumbrance  upon  them.'*'''  If  he  accept  rent,  or  do 
any  other  act  or  acts  showing  his  assent  thereto,  it  is  construed 
to  be  an  affirmance.'"  Such  a  lease  may,  however,  be  avoided 
by  another  guardian  chosen  by  the  infant  after  he  attains  the 
age  of  fourteen. ■^^ 

A  guardian  has  no  power  to  erect  buildings  upon  the  lands  of 
his  ward,  without  the  authority  of  the  Chancellor :  if  he  does 
so,  he  will  not  be  allowed  the  cost,  or  even  the  value  of  such 
buildings.''^ 

SALE  OF  LANDS  BY  GUARDIANS. 

In  General. 

As  a  general  rule,  a  guardian  has  no  right  to  sell,  or  make  a 
deed  for  the  property  of  his  ward,  without  an  order  of  the 
orphans'  court  or  Court  of  Chancery.  He  is  as  has  been  seen, 
entitled  to  the  possession  of  his  ward's  lands,  and  may  transfer 
that  possession,  or  lease  the  lands,  without  any  order;  but  he 
can  convey  no  title  to  the  freehold  otherwise  than  as  the  statutes 
authorize.®" 

■^sOrdinary  v.  Dean,  44  N.  J.  L.,  L.   539-     Snook  v.   Sutton.    10  N. 

64.  J.  L.,  133- 

"6Van  Doren  v.  Everitt,  5  N.  J.  "sSnook  v.  Sutton,  10  N.  J.  L., 

L.,   539,   Jackson   v.   Todd,   25   N.  133. 

J.  L.,  121.     Reversed  26  N.  J.  L.,  ^'^Haggerty  v.  McCanna,  25   N. 

525.     Antonidas  v.  Walling.  4  N.  J.  Eq.,  48- 
J.  Eq.,  42.  sojackson  v.  Todd,  25  N.  J.  L.. 

''e^Switzer  v.  Switzer.  57  N.  J.  121.     Reversed  26  N.    T.   L.,   5^5- 

Eq.,  421.  Antonidas  v.  Walling,  4  N.  J.  Eq., 

^■'Van  Doren  v.  Everitt,  5  N.  J.  42. 


GuARDIAXSIIir   OF    IxFAXTS.  761 

Lands  Purchased  by  Guardian  on  Foreclosure  of  Mortgage 
of  Ward. 

Where  any  guardian  heretofore  has  or  shall  hereafter 
become  the  purchaser  of  any  land,  tenements  or  heredita- 
ments, at  a  sale  upon  the  foreclosure  of  any  mortgage  held  by 
such  guardian,  such  lands,  tenements  or  hereditaments  shall  be 
assets  in  his  hands,  and  may  be  sold  and  conveyed  by  him  with- 
out any  order  of  court,  and  he  shall  receive,  be  accountable 
for  and  pay  over  the  proceeds  of  such  sale  the  same  as  the 
other  assets  in  his  hands.®^ 

Lands  Purchased  by  Guardian  by  Mistake. 

The  statute  provides  that  if  any  guardian  purchase  real 
estate  by  mistake,  or  under  a  misapprehension  of  the  right  to  do 
so,  he  shall  have  power  to  re-sell  such  lands. ''- 

When  Guardian  is  Grantee  for  Ward. 

In  case  any  guardian  has  heretofore  or  shall  hereafter  become 
the  grantee  for  or  on  account  of  his  ward,  of  any  lands,  tene- 
ments or  hereditaments,  or  undivided  interest  therein,  in  the 
transfer  or  distribution  of  assets  held  by  any  executor  or 
trustee,  such  lands,  tenements  or  hereditaments,  or  undivided 
interest  therein,  shall  be  assets  in  such  guardian's  hands,  and 
may  be  sold  and  conveyed  by  him  without  any  order  of  court, 
and  he  shall  receive,  give  security,  be  accountable  for  and  pay 
over  the  proceeds  of  such  sale  or  sales  the  same  as  the  other 
assets  in  his  hands. **^ 

Jurisdiction  of  Orphans'  Court  to  Order  Sale  of  Lands. 

If  the  personal  estate  and  the  rents,  issues  and  profits  of 
the  real  estate  of  the  ward  be  not  sufficient  for  his  maintenance, 
the  or])hans'  court  of  the  proper  county,  on  full  investigation 
thereof,  may  from  time  to  time  order  the  guardian  to  sell  so 
much  of  the  timber  growing  or  being  upon  the  lands  of  said 
ward  or  such  parts  of  the  ward's  lands,  tenements,  heredita- 

8I2  Comp.  Stat.,  p.  2637,  sec.  33.  ^sp     l     1904,    P-    4^.     2    Comp. 

82P.  L.  191S.  P-  356.  Stat.,  p.  2637,  sec.  35. 


762  Pkobate  Law  and  Practice. 

ments  and  real  estate  as  they  shall  direct  and  judge  adequate  for 
his  or  her  maintenance  and  education.^* 

Construction  of  Statute. 

In  Graham  v.  Houghtaliu/'"  it  was  held  that  this  statute  gave 
jurisdiction  to  the  orphans'  court  only  over  the  estates  of  wards 
who  were  orphans.  This  case  was  decided  under  the  statute 
as  it  existed  in  18 18,  and  before  the  enactment  of  the  fortieth 
.section  of  our  Orphans'  Court  Act,  which  was  first  enacted  in 
1846,^*^  and  which  confers  upon  the  orphans'  court  and  surro- 
gate jurisdiction  to  appoint  a  guardian  for  a  minor  entitled 
to  an  estate,  though  the  parents  of  such  minor  be  living.  The 
principle  upon  which  the  decision  in  this  case  was  based  was 
that  the  orphans'  court  had  no  jurisdiction  over  minors  other 
than  orphans ;  the  rule  established  by  this  case  is  therefore 
obsolete  since  the  enactment  of  the  fortieth  section  of  the 
Orphans'  Court  Act.^' 

The  statute  authorizing  the  orphans'  court  to  order  a  guardian 
to  sell  so  much  of  the  ward's  lands  as  may  be  adequate  for  his 
maintenance  and  education  applies  to  testamentary  as  well  as 
to  statutory  guardians.*^ 

Practice. 

Application  for  an  order  for  the  sale  of  infants'  lands 
should  be  made  by  the  verified  petition  of  the  guardian,*"  which 
should  set  out  fully  all  of  the  ward's  estate,  real  and  personal, 
the  encumbrances  thereon,  and  the  income  derived  therefrom. 
It  should  show  the  relationship  existing  between  the  guardian 
and  his  ward ;  and,  if  the  guardian  stands  in  loco  parentis  to 
his  ward,  or  if  the  latter  is  living  as  a  member  of  the  former's 
family,  it  should  set  up  the  full  circumstances  relied  upon  to 
relieve  the  parent  from  the  duty  to  support  his  child,  all  of 
which  facts  must  be  established  by  testimony  before  the  court. 

842  Comp.  Stat.,  p.  2628,  sec.  3.  ssPfefferle    v.    Herr,    75    N.    J. 

8530  N.  J.  L.,  552.  Eq.,  219.     Affirmed  7J   N.  J.  Eq., 

s^Nixon's  Digest,  p.  318.  271. 

^"Orphans'   Court   Act,    sec.  40,  ^sOrphans'    Court    Rule    33,    p. 

p.  754,  supra.  763,  infra. 


Guardianship  op  Ixfaxts.  763 

When  Orphans'  Court  Will  Order  Sale  of  Lands. 

It  is  onl\'  when  a  minor  has  no  other  means  for  his  edu- 
cation and  maintenance  that  the  orphans'  court  is  empowered 
by  the  statute  to  order  the  sale  of  his  lands ;  and  where  the 
parent  is  of  sufficient  ability  to  maintain  and  educate  the  infant, 
as  a  general  rule  the  lands  of  the  latter  should  not  be  sold 
for  that  purpose,  unless  there  be  such  a  disparity  between 
the  fortune  of  the  minor  and  the  pecuniary  circumstances  of 
the  father  as  would  make  it  proper  that  the  fortune  of  the 
child  should  contribute  to  his  own  support.  The  principle 
which  should  govern  the  court  in  making  the  order  should  be 
the  same  as  has  l^een  adopted  in  chancery  in  Hke  cases. ^° 

Report  of  Sale. 

After  the  lands,  tenements,  hereditaments  and  real  estate 
of  the  ward  so  ordered  to  be  sold,  shall  be  sold,  the  guardian 
shall  make  report  thereof  in  writing  to  the  said  orphans'  court, 
and  if  said  court  shall  approve  of  such  sale,  it  shall  confirm 
the  same  as  valid  and  effectual  in  law,  and  shall  by  rule  of 
court  direct  the  said  guardian  or  guardians  to  execute  good 
and  sufficient  conveyances  in  the  law,  to  the  purchaser  or 
purchasers  for  the  tract  or  tracts  of  land  or  real  estate  so 
sold.^^ 

Application  and  Reports  to  be  Under  Oath. 

All  applications  to  the  Orphans*  Court  for  the  sale  of  lands, 
all  petitions  by  substitutionary  administrators  wath  the  will 
annexed  or  administrators  with  the  will  annexed  for  confir- 
mation of  sales  of  land,  and  all  reports  of  such  sales  to  said 
court  shall  be  verified  by  the  oath  or  affirmation  of  the  party 
making  the  same.'-*- 

Affidavits  as  to  Value  of  Property  to  be  Annexed  to  Reports 
of  Sales. 
Reports  of  sales  and  petitions  for  the  confirmation  of  sales 
by   substitutionary   administrators    with    the   will    annexed   or 

^^Morris  v.  Morris,  15  N.  J.  Eq.,  '''2  Comp.  Stat.,  p.  2628,  sec.  4. 

239,     and     see     "Education     and  '-'-Orphans'  Court  Rule  33. 

Maintenance    of    Ward,"    p.    765. 
infra. 


764  Probatk  Law  and  Practice;. 

administrators  with  the  will  annexed,  shall  state  the  names 
and  addresses  of  all  parties  in  interest  and  shall  have  annexed 
thereto  affidavits  of  at  least  two  persons  familiar  with  the 
value  of  property  in  the  neighborhood  where  the  lands  so  sold 
are  located,  giving  the  fair  market  value  of  the  lands  and 
premises  so  sold.^^ 

Notice  of  Intention  to  Report  Sale  for  Confirmation. 

Notice  of  the  intention  of  any  executor,  administrator, 
guardian  or  trustee  to  make  report  of  any  sale  to  the  Orphans' 
Court,  or  of  any  application  by  a  substitionary  administrator 
with  the  will  annexed  or  an  administrator  with  the  will  an- 
nexed for  the  confirmation  of  a  sale  of  lands  made  by  him 
shall  unless  the  court  shall  otherwise  direct,  be  given  to  all  per- 
sons in  interest.  Five  days'  notice  of  such  application  shall  be 
given  to  all  persons  in  interest  who  are  residents  of  the  State 
of  New  Jersey,  and  not  less  than  five  nor  more  than  sixty 
days'  notice,  as  the  court  may  by  order  direct,  to  all  such 
persons  in  interest  who  shall  reside  without  the  State  of  New 
Jersey,  which  last  mentioned  notice  may  be  sent  by  mail  with 
the  postage  thereon  prepaid. °* 

Bond  of  Guardian  on  Sale  of  Land. 

The  Orphans'  Court,  on  granting  an  order  to  a  guardian  to 
sell  land,  or  timber  on  the  land  of  his  ward,  shall  examine 
as  to  the  sufficiency  of  the  bond  of  the  guardian  previously 
given,  and  if,  in  its  judgment,  said  bond  is  insufficient,  it  shall 
require  the  guardian  to  give  such  additional  bond  for  the  faith- 
ful execution  of  his  office  as,  in  its  judgment,  shall  be  ade- 
quate.^° 

Form  and  Effect  of  Deed. 

The  guardian  shall  make  a  deed  or  deeds  to  the  purchaser 
or  purchasers,  for  the  lands,  tenements,  hereditaments  and 
real  estate  so  sold ;    which  deed  shall  set  forth  that  the  same 

^■■'Orphans'  Court  Rule  34.  considerations  influencing  court  in 

^*Orphans'  Court  Rule  35.  fixing  the  amount  of   bonds,   see 

^^Orphans'  Court  Rule  36.     For       "Amount  of  Bond,"  p.  316.  supra. 


Guardianship  of  Infants.  765 

was  made  by  \irtue  of  an  order  of  the  orphans'  court  by  wliich 
the  sale  shall  be  authorized,  the  term  of  the  court  in  which 
it  was  granted,  and  the  date  of  the  order ;  which  conveyances, 
duly  executed  as  aforesaid,  shall  vest  in  the  purchaser  or 
purchasers  all  the  estate  therein  that  the  ward  was  seized  of 
or  entitled  to  at  tlic  time  of  making  the  said  order.*'" 

Distribution  of  Proceeds  of  Sale  in  Case  of  Death  of  Infant. 

If,  after  the  sale  of  infants'  lands  pursuant  to  the  statute, 
and  before  the  j^roceeds  of  the  sale  of  such  lands  are  entirely 
expended  for  the  support  and  maintenance  of  the  infant,  the 
infant  dies  before  reaching  his  majority,  it  would  seem  that  the 
unexpended  ])ortion  of  such  proceeds  should  be  treated  as 
realty,  and  not  as  personalty,  and  that  it  would  pass  to  the  heir 
at  law  of  the  infant,  rather  than  to  his  administrator.^' 

EDUCATION  AND  MAINTENANCE  OF  WARD. 

In  General. 

It  is  the  duty  of  guardians  of  the  person  and  estate  of  minors 
to  provide  for  the  education  of  their  wards.  If  the  ward  be  of 
limited  fortune,  and  al:)le  to  earn  his  support,  it  is  the  guard- 
ian's duty  to  see  that  he  does  so,  rather  than  to  permit  him  to 
remain  in  idleness,  or  expend  his  limited  patrimony  ;  but  if 
the  ward  is  physically  unable  to  earn  his  support,  or  cannot 
do  it  without  encroaching  upon  the  time  necessary  to  acquire 
a  proper  education,  the  guardian  may  use  the  property  of  the 
ward  for  his  support  and  education.  The  guardian's  discretion 
in  respect  to  the  quality  of  maintenance  and  the  extent  of 
schooling  that  ought  to  be  allowed  to  his  ward  is  on  a  similar 
footing  to  that  of  a  parent,  lie  is  not  compellable  to  i)rcfcr 
mere  economy  of  cost  to  the  welfare  and  comfort  of  his 
ward."** 

In  case  the  income  from  the  ward's  estate  is  insut^cient 
for  his  maintenance  and  education,  the  personal  estate,  princi- 
pal as  well  as  interest,  may  be  used  for  that  purpose,  if  neces- 

"«2  Comp.  Stat.,  p.  2628,  sec.  5.  Kq..  ,1|6.    Affirmed  ih.,  575.    Wetli- 

s^Snowhill  V.   Snowhill,  2  N.  J.       crill  v.  Hoiisii,  .=;.'  N.  J.  Rq.,  6S3. 
Eq.,  30.     Obcrly  v.  Lcrch,  iS  N.  J.  "'^Woerner      on      ( '.uardiansliip, 

162. 


766  Probate  Law  and  Practice. 

sary,  without  application  to  the  court,  subject,  of  course,  to 
its  allowance  in  the  settlement  of  the  guardian's  accounts,  at 
which  time  the  propriety  of  the  expenditure  may  be  questioned 
by  the  court,  or  by  parties  interested.'"'  The  criterion  of  the 
propriety  of  payments  by  guardians  for  the  support,  education 
and  maintenance  of  their  ward  is  not  mere  physical  necessity, 
but  rather  social  and  moral  necessity,  having  regard  to  the 
situation  of  the  parties  and  the  fitness  of  things.  Food,  shelter 
and  clothing  are  physical  necessities.  In  an  enlightened  com- 
munity, the  education  of  a  child  is  a  moral  and  social  necessity. 
Professional  training  is  not  a  general  necessity,  but  is  a  special 
advantage.^  Where  a  guardian,  in  his  account,  asks  for  an 
allowance  for  the  support  of  his  ward,  the  court  will  make 
such  an  allowance  only  as  it  would  have  made  had  it  been 
asked  for  in  advance,  and  will  not  be  influenced  by  any  subse- 
quent fortuitous  increase  of  the  infant's  fortune.  In  fixing 
such  allowance,  the  court  will  do  no  more  than  indemnify  the 
parent  or  guardian  for  actual  disl)ursements  ;  it  will  not  allow 
anxthing  in  the  nature  of  profits. - 

Duty  of  Father  to  Support  Child. 

In  general,  a  father  is  bound  to  support  his  infant  children, 
and  is  not  entitled  to  have  the  income  of  their  estate  appropri- 
ated for  their  support,  without  order  of  some  competent  court, 
based  upon  his  inability  to  su])port  them  properly.^  So  where 
it  does  not  appear  that  the  guardian,  who  was  the  father  of 
the  wards,  was  vmable  to  support  them,  and  it  does  appear 
that  he  received  and  had  the  benefit  of  their  wages  meanwhile, 
his  expense  of  maintaining  the  wards  will  not  be  allowed.* 
In  determining  the  question  of  the  extent  of  a  parent's  duty 
to  support  his  or  her  infant  child,  the  court  will  take  into 
consideration    all    the    circumstances,    including    as    well    the 

^^In  re  Hannah  Barr}-,  6i  N.  J.  92.     Keeney  v.  Henning,  58  N.  J. 

Eq.,  135-139.     Smith  v.  Robinson,  Eq.,  74-79- 

83  N.  J.  Eq.,  384-  3McKnight  v.   Walsh,  23   N.  J. 

1  In  re  Alexander,  79  N.  J.  Eq.,  Eq.,   136.     Affirmed  24  N.  J.  Eq.. 

226,  at  p.  229.  498. 

2Alling  V.  Ailing,  52  N.  J.  Eq.,  '^Wilson's    Case,    38    N.    T.    Eq.. 

205. 


GUARDIAXSHII'   OF    IxFANTS.  767 

parent's  liability  as  the  child's  fortune.''  So  the  guardian  of 
infant  children  of  parents  having  an  income  less  than  $1,200 
a  year  is  justified  in  using  the  income  of  the  estate  of  the 
children  for  their  education  along  the  lines  for  which  they 
show  special  aptitude.*^ 

There  are  some  cases  reported,  where  the  minor  is  very 
rich  and  the  father  poor,  where  the  court  has  allowed  the 
•parent  a  reasonable  sum  for  maintenance  out  of  the  child's 
estate  :  but  this  has  never  been  more  than  to  make  his  edu- 
cation proportionate  to  his  estate.  It  is  belie\ed  that  no  case 
can  be  found  where  the  court  has  allowed  all  of  a  minor's 
estate  to  be  sold  for  his  education,  when  the  father  was  living. 
It  is  against  the  whole  theory  upon  which  such  allowances  are 
made.  The  allowances  are  made,  not  to  free  the  father  from 
supporting  the  child,  but  that  the  child  should  be  educated 
according  to  his  estate,  which  perhaps  the  father  could  not 
afford  to  do.' 

Where  there  is  a  bequest  to  infants,  payable  when  they 
attain  their  majority  and  providing  that  in  the  meantime  their 
father  should  hold  the  bequest  in  trust  and  apply  the  income 
thereof  to  their  education  and  support,  so  long  as  the  father 
adequately  supports  and  educates  the  legatees  during  their 
minority,  he  will  not  be  held  accountable  for  any  portion  of 
the  income."^  The  principle  underlying  this  class  of  cases  is, 
that  where  the  interest  of  the  children's  fund  is  expressly 
given  to  the  person  who  stands  in  loco  parentis  for  their  main- 
tenance, such  a  gift  is  in  fact  pro  tan  to  for  the  benefit  of  such 
trustee,  and  he  will  not  be  compelled  to  account  for  the  income, 
where  it  appears  that  he  has  adequately  supported  the  chil- 
dren.^ 

Duty  of  Mother  to  Support  Children. 

There  is  no  dift'erence  between  the  parents  as  to  their  duty 
to  maintain  their  offspring.     The  mother  is  under  the  same 

■'^•Mling  V.  Ailing,  52  N.  J.   Eq..  8£)ixon  v.  Bentley,  50  N.  J.  Eq., 

92.  87.    Affirmed  ib.,  486. 

"In  re  Alexander,  79  N.  J.  Eq.,  ■'Macknet  v.  Macknet,  27  N.  J. 

226.  Eq.,  594.     Wood  v.  Chetwood,  3:-, 

"Graham  v.  Ilouglitalin,  30  N.  J.  N.  J.  Eq..  9-14.     Dixon  v.  Bentley, 

L-,  552-568.  50  N.  J.  Eq.,  Sy.    Affirmed  ib.,  486. 

50 


768  Probate  Law  and  Practice. 

obligation  as  the  father  in  that  respect.  At  the  common  law, 
during  coverture  with  its  incidents,  the  duty  of  the  mother 
was  suspended ;  but  during  her  widowhood,  and  especially 
under  the  modern  statutes  giving  her  dominion  of  her  own 
property,  she  is  under  the  same  obligation  as  the  father. ^°  So 
where  testator  gave  the  use  of  all  his  property,  excepting  a 
small  legacy,  to  his  widow  until  her  re-marriage,  and  the 
amount  was  amply  sufficient  for  her  own  comfortable  support 
and  the  maintenance  of  the  children,  it  was  held  that  the  in- 
tention of  the  testator  was,  that  with  the  use  of  the  property 
devised  to  the  widow,  she  should  take  care  of  the  children, 
and  that  she  could  not  claim  an  allowance  for  the  care,  support 
and  maintenance  of  the  children  during  their  minority,  and 
from  the  testator's  death  to  the  time  of  her  re-marriage ;" 
and  a  mother,  who  is  also  the  guardian  of  her  infant  child  in 
arms,  is  not  entitled  to  credits  for  the  motherly  services  ren- 
dered to  it,  but,  in  a  case  where  she  should  be  allowed  for 
the  support  of  her  child,  will  be  entitled  only  to  her  actual 
outlay  in  money. ^ - 

In  the  case  of  Pyatt  v.  Pyatt^^  the  learned  judge  who  spoke 
for  the  Court  of  Errors  and  Appeals  used  this  language:  "As 
a  general  rule,  a  widow  is  not  bound  to  support  her  minor 
children,  if  they  have  means  of  their  own."  The  facts  in  this 
case  show  that  the  mother  had  no  fortune  of  her  own,  beyond 
the  trifle  received  from  her  husband's  estate,  and  whatever 
of  business  and  earning  capacity  she  had  was  expended  in 
keeping  a  home  for  her  children,  so  that  there  was  not  the 
least  ground  for  throwing  upon  her  any  part  of  the  burden  of 
supporting  her  children,  beyond  what  she  actually  did.  The 
principal  question  litigated  in  this  case  was  whether  the  or- 
phans' court  had  jurisdiction  to  take  into  account  transactions 
between  a  mother  and  daughter,  occurring  after  the  child 
became  of  age,  and  the  principal  subject  of  contention  was  her 
support  after  she  became  of   age,  the   foregoing  remarks  in 

^"Ailing  V.  Ailing.  $2  N.  J.  Eq.,  "Crane  Y..\'an   Duyne.  9  N.  J. 

92.     In  re  Hannah  Barry,  61  N.  J.       Eq..  259. 

Eq..   135.     Keeney  v.  Henning,  64  ^-Keeney   v.   Henning.   64  N.   J. 

N.  J.  Eq..  65.  Eq.,  65.      ' 

1346  N.  J.  Eq.,  285. 


Guardianship  of  Infants.  769 

regard  to  the  liability  of  the  mother  being  obiter.  This  case 
was  distinguished  in  the  case  of  Ailing  z'.  .Illiiig,^*  and  the 
rule  laid  down  as  stated  in  the  text. 

Duty    of    Person    Standing    in    Loco    Parentis    to    Support 
Minor. 

Where  a  guardian  voluntarily  assumes  the  care  and  support 
of  his  ward,  and  stands  toward  him  in  loco  parentis,  he  will 
not  be  allowed  for  expenditures  for  the  support  of  the  ward.'"' 
So  where  a  guardian  had  taken  his  ward  to  live  with  him 
before  guardianship,  and  had  agreed  with  her  father  when  he 
took  her  that  he  would  sup[)ort  her  at  his  own  cost  as  his 
own  child,  and  the  ward  appeared  to  have  rendered  whatever 
service  she  could  in  the  family  where  she  occupied  the  position 
of  a  child,  it  was  held  the  guardian  would  not  be  allowed  for 
her  board,  washing,  etc."'  vSo  where  a  person  intermarries 
with  a  widow,  who  has  a  child,  and  takes  such  child  into  his 
family  and  supports  him  as  a  member  thereof,  he  stands  in 
loco  parentis  to  such  child,  and  assumes  all  of  the  duties  and 
liabilities  and  acquires  all  the  rights  of  a  parent ;  and  while 
the  child  continues  to  live  with  him,  the  same  (lut\-  is  imposed 
upon  him  to  support  such  child  as  in  the  case  of  his  own 
child,  and  he  wnW  not  be  allowed  for  the  maintenance  of  the 
ward  while  she  resided  in  his  liousehold,  althougli  he  will  1)6 
allowed  for  board  paid  to  tliird  persons  thereafter.'" 

JURISDICTION   OF  ORPHANS'   COURT   TO   AUTHORIZE 
EXPENDITURE  FOR  SUPPORT,   ETC.,  OF  WARD. 

Orphans'     Court    May    Authorize     Use    of    Principal    for 
Support  of  Minor. 

It  shall  be  lawful  for  the  general  guardian  of  the  estate  of 
any  minor,  from  time  to  time,  to  apply  in  writing  to  the 
orphans'  court  charged  with  the  settlement  and  allowance  of 

'^52  N.  J.  Eq.,  92.  i«Snover  v.  Frail.  38  N.  J.  Eq... 

^^Haggerty  v.  McCanna,  25   N.  207. 
J.  Eq.,  48.     Snover  v.  Frail,  38  N.  ''Disscnger's  Case,  .39  N.  J.  Eq... 

J.  Eq.,  207.     Pyatt  v.  Pyatt,  44  N-  J27.     Haggcrty  v.  McCanna,  25  N. 

J.  Eq.,  491-494-     Reversed  46  N.  J.  J.    Eq.,   48.      See   also   Tittlebaum 

Eq.,  285.  V.  Boehmcke,  81   N.  J.  L.,  6g: 


770  Pkobate  Law  and  Practice. 

his  accounts,  for  an  order  fixing  the  sum  that  may  be  expended 
yearly  by  the  guardian  for  or  toward  the  support,  maintenance 
and  education  of  the  ward ;  the  hearing  on  such  apphcation 
shall  be  on  ten  days'  notice  to  the  next  of  kin  of  the  ward,  if 
there  be  any  such  next  of  kin  other  than  such  guardian ;  the 
court  in  a  summary  way,  by  testimony  taken  before  it.  or  before 
one  of  its  masters  and  examiners,  shall  proceed  to  inquire  into 
the  merits  of  the  application,  and  may  make  such  order  in  the 
]M-emises  as  to  it  shall  seem  proper  under  all  the  circumstances 
of  the  case,  having  special  reference  to  the  amount  of  the 
estate  and  the  condition  in  life  of  the  ward,  and  to  the  pecuni- 
ary means  of  any  parent  who  is  under  legal  obligation  with 
reference  to  the  support  of  the  ward ;  no  order  shall  be  made 
to  continue  for  more  than  one  year,  and  if  the  ward  shall  be 
adequately  supported,  maintained  and  educated  during  the 
continuance  of  such  order,  the  court  shall  allow  the  said  guard- 
ian in  the  settlement  of  his  account  the  amount  expended 
not  exceeding  the  sum  fixed  b\'  said  order.'* 

Orphans'  Court  May  Authorize  Use  of  Income  for  Support, 
Etc.,  of  Minor. 

When  it  shall  be  made  to  appear  to  the  orphans"  court  upon 
the  application,  in  the  form  of  a  verified  petition,  of  the  parent 
or  parents  or  other  person  or  persons  having  the  custody  of 
any  minor  child,  that  said  parents  or  persons  having  the  cus- 
tody of  said  minor  are  unable  to  afTord  said  minor  proper  edu- 
cation, maintenance  and  support,  and  that  said  minor  has  or  is 
entitled  to  a  certain  fund,  estate  or  other  property  in  the  hands 
of  a  guardian  or  other  person,  and  that  the  best  interests  of 
said  minor  will  be  substantially  promoted  by  the  use  of  the 
income  of  said  estate  or  property,  or  a  portion  thereof  for 
the  education,  support  and  maintenance  of  said  minor,  it  shall 
1)6  lawful  for  the  Orphans"  Court  to  inquire  into  the  circum- 
stances of  the  case  or  refer  the  same  to  a  master  in  chancery 
for  investigation  and  report ;  and  if  upon  such  inquiry  or 
report  it  be  found  that  the  parents  of  said  minor  or  the 
persons  having  the  custody  thereof  are  unable  to  provide  said 

isp.  L.  1903,  p.  106.     2  Comp. 
Stat.,  p.  2629,  sec.  5-d. 


Guardianship  of  Infants.  771 

minor  with  proper  education,  support  and  maintenance,  and 
that  said  order  would  be  for  the  best  interests  of  said  minor, 
the  said  court  may  make  an  order  authorizing  and  directing 
the  guardian  or  other  person  in  control,  of  the  estate  or  funds 
of  said  minor  to  pay  the  income  of  said  estate  or  fund,  or 
so  much  thereof  as  the  court  shall  direct,  to  the  parents  or 
person  having  the  custody  of  said  minor,  to  be  used  for  the 
education,  maintenance  and  support  of  said  minor.''-' 

Practice. 

An  application  for  the  use  of  either  principal  or  income 
for  a  minor's  support  should  be  on  petition,  duly  verified ;  the 
court  will,  upon  the  presentation  of  such  petition,  proceed  to 
take  such  testimon}-  as  may  Ije  offered  in  behalf  of  the  pe- 
titioner. 

When  Order  Should  be  Granted. 

When  a  person  undertakes  to  act  as  guardian,  he  assumes 
certain  responsibilities,  and  it  becomes  his  duty  to  exercise  a 
certain  discretion,  within  legal  lines,  to  the  extent  that  the 
circumstances  of  the  particular  case  warrant.  There  is  no 
doubt  of  the  authority  of  a  guardian  to  expend  his  ward's 
funds,  principal  as  well  as  income,  for  his  proper  education, 
maintenance  and  support ;  and  an  application  to  the  court  to 
designate,  in  advance,  the  amount  which  a  guardian  may 
expend  from  the  principal  and  interest  of  his  ward's  estate  is 
an  attempt  by  the  guardian  to  relieve  himself  of  a  portion  of 
the  responsibility  which  he  assumed  when  he  accepted  that 
office. 

Under  these  acts,  the  court  is  authorized,  but  not  required, 
to  make  such  order  in  the  premises  as  shall  seem  proper  under 
all  of  the  circumstances  of  the  case ;  and  unless  special  circum- 
stances exist  which  would  make  it  unsafe  for  the  guardian  to 
make  the  expenditures  requested,  the  court  should,  in  its  dis- 
cretion, decline  to  act.  An  illustration  of  a  case  where  special 
circumstances  exist,  which  would  justify  the  court  in  acting,  is 
that  of  a  ward  whose  estate  is  comparatively  small,  and  who 
believes  he  has  special  aptitude  for  some  particular  profession, 

lop.  L.  loi,^,  p.  277. 


//- 


Probate  Law  and  Practice. 


the  necessary  training  for  which  would  involve  the  expendi- 
ture of  his  entire  estate  before  he  reached  the  age  of  twenty- 
one.  Under  such  circumstances,  if  the  court  should,  upon 
full  investigation,  find  that  the  expenditure  would  be  justified, 
and  the  ward's  entire  estate  jeopardized  for  his  future  advan- 
tage, the  court  should  authorize  the  expenditure ;  but  the  ordi- 
nary application,  which  simply  seeks  to  shift  responsibility 
from  the  shoulders  of  the  guardian,  where  it  belongs,  to  that 
of  a  court,  which  often  is  not  in  so  good  a  position  to  ascertain 
what  is  for  the  best  interest  of  the  minor  as  is  the  guardian, 
should  be  denied. 

The  subject  of  applications  of  this  character  was  treated  at 
length,  in  the  learned  opinion  of  Mce  Chancellor  Emery  in 
a  recent  case.'°  In  that  case,  the  Vice  Chancellor  laid  down 
the  rule  to  be  followed,  in  the  following  language :  "The 
general  policy  of  the  decisions  of  this  state,  upon  application 
to  the  court  for  an  order  authorizing  the  expenditure  of  the 
principal  of  a  ward's  estate  for  his  support,  has  been  to  leave 
the  question  of  the  necessity  of  the  expenditure  of  the  personal 
estate,  both  income  and  the  principal,  to  the  judgment  of  the 
guardian,  in  the  first  instance,  subject  to  affirmance  of  the 
orphans'  court,  on  the  settlement  of  his  accounts,  and  in  all 
ordinary  cases,  this  course,  which  has  been  followed  for  over 
a  century,  affords  protection  both  to  the  guardian  and  the 
infant."-^  This  language  was  quoted  with  approval  by  the 
Court  of  Errors  and  Appeals  in  a  later  case.'-- 

This  case,  decided  b\'  the  Court  of  Chancery,  which  has  full 
inherent  jurisdiction  in  matters  of  this  kind,  furnishes  the  only 
safe  guide  to  the  orphans'  court,  which  by  virtue  of  the  act  of 
1913,-3  was  for  the  first  time  invested  with  full  jurisdiction 
over  the  subject,  its  jurisdiction  before  the  approval  of  that 
act  being  limited  to  applications  to  authorize  the  use  of  the 
principal  of  a  ward's  estate. 

-f'ln  re  Barry,  61  N.  J.  Eq.,  135.      v.    Herr,    75    N.    J.    Eq.,    219-223. 

-^In  re  Hannah  Barry,  61  N.  J.       Affirmed  77  N.  J.  Eq.,  271. 
Eq.,  135.     In  re  Alexander.  79  N.  221^  j-e  Alexander.  79  N.  J.  Eq.. 

J.  Eq.,  226-228.     See  also  Pfefferle       226-228. 

-"Page  770,  supra. 


CHAPTER  XXXVI. 

APPOINTMENT  OF  GUARDIANS  FOR 
INCOMPETENTS. 

AFTER   IDIOCY   OR   LUNACY   FOUND    BY   INQUEST. 

Statutory  Provsions. 

In  cases  of  idiocy  or  lunac}'  found,  the  chancellor  shall 
cause  to  be  transmitted  to  the  orphans*  court  of  the  county 
where  such  idiot  or  lunatic  may  reside,  a  certified  copy  of 
all  proceedings  which  may  be  had  thereon,  which  shall  be 
recorded  and  filed  in  the  surrogate's  ofiice  of  said  county ;  and 
the  said  orphans'  court  is  hereby  directed  and  required,  on 
further  application  for  that  purpose,  to  appoint  some  fit  and 
discreet  person  or  persons,  guardian  or  guardians  of  such 
idiot  or  lunatic  :  and  if  it  shall  so  happen  that  the  orphans' 
court  of  said  county  shall  not  be  then  sitting,  it  shall  and  may 
be  lawful  for  any  one  of  the  judges  of  the  said  orphans' 
court,  forthwith  to  call  an  orphans'  court,  to  be  holden  at  the 
usual  place  of  holding  said  court,  and  the  said  orphans'  court 
so  convened,  shall  and  may  proceed  to  appoint  such  person 
or  persons  as  guardian  or  guardians  of  the  said  idiot  or 
lunatic.^ 

WHERE  LUNATIC,  WHOSE  ESTATE  DOES  NOT  EXCEED 

$I,000   IS  COMMITTED  TO   ASYLUM   AT 

EXPENSE    OF    COUNTY. 

Statutory  Provisions. 

Whenever  any  person  or  persons  have  been  adjudged  insane, 
or  may  hereafter  be  adjudged  insane,  by  a  judge  of  the  court 
of  common  pleas,  as  now  provided  by  law,  and  have  been 
or   may    hereafter   be,    on    the    certificate    of    such    judge    or 

'Rev.    1877,    P-    601.     2    Comp. 
Stat.,  p.  2781,  sec.  I. 


773 


774  Probate  Law  and  Practice. 

judges,  committed  to  or  confined  in  any  lunatic  asylum  in 
this  state,  at  the  expense  of  any  county  therein,  and  it  shall 
appear  that  such  person  or  persons  are  seized  or  possessed 
of  anv  property,  real  or  personal,  or  entitled  to  any  interest 
therein,  it  shall  be  lawful  for  the  orphans'  court  of  the  county 
at  whose  expense  the  lunatic  or  lunatics  are  maintained  to 
appoint  some  fit  and  discreet  person  or  persons  as  guardian  or 
guardians  of  such  lunatic  or  lunatics,  in  the  manner  as  pro- 
vided in  the  first  section  of  the  aforesaid  act,-  without  its  being 
necessary  to  have  the  idiocy  or  lunacy  determined  by  an  in- 
quest on  a  commission  to  be  issued  out  of  the  court  of  chan- 
cery and  a  certified  copy  of  the  proceedings  thereof  filed  and 
recorded  in  the  office  of  the  surrogate,  as  is  now  required  by 
said  act ;  provided,  the  estate  of  which  said  lunatic  or  lunatics 
are  so  seized,  possessed  or  entitled  to  shall  not  exceed  the  sum 
of  one  thousand  dollars,  to  be  determined  by  said  orphans" 
court.^ 

Provisions  of  Act  Applicable  to  such  Guardians. 

The  provisions  of  the  aforesaid  acf*  and  the  supplements 
thereto  shall  be  applicable  to  any  guardian  or  guardians  after 
the  appointment  is  made  by  any  orphans'  court  as  above  pre- 
scribed, in  the  same  manner  as  is  now  applicable  to  any  guard- 
ian or  guardians  appointed  under  the  provisions  of  the  afore- 
said act.^ 

WHERE    LUNATIC    OWNS    PERSONAL    PROPERTY    AND 
HAS  BEEN  CONFINED  IN  ASYLUM  FOR  ONE  YEAR. 

Statutory  Provisions. 

Whenever  any  person  or  persons  have  been  admitted  to 
and  confined  in  any  state  or  county  asylum  of  this  state  for 
the  insane,  upon  the  certificate  of  two  reputable  physicians 
residing  in  this  state,  or  may  hereafter  be  admitted  and  con- 
fined as  aforesaid,  and  it  shall  appear  that  such  person  or 
persons  are  possessed  of  personal  property,  and  shall  have 
been  for  at  least  one  year  insane  and  confined  in  any  insane 

-2  Comp.  Stat.,  p.  2781,  sec.  i,  p.  ■'2  Comp.  Stat.,  p.  2781,  sec.  i,  p. 

71Z,  supra.  773,  supra. 

32  Comp.  Stat.,  p.  2785,  sec.  3-e.  ^2  Comp.  Stat.,  p.  2785,  sec,  3-f. 


Guardianship  of  Ixco.\lPKTE^•T^ 


//o 


asylum  of  this  state,  or  where  such  person  or  ]>ersons  lia\e 
been  confined  in  any  asylum  of  this  state  for  the  insane  for 
ten  consecutive  years,  upon  the  certificate  of  one  reputable 
physician,  and  no  inc|uisition  of  lunacy  shall  have  adjudged 
such  person  or  persons  an  idiot  or  lunatic,  it  shall  be  lawful 
for  the  judge  of  the  orphans"  court  (if  the  county  in  which 
the  lunatic  shall  have  been  a  resident  when  committed,  to  ap- 
point any  one  of  the  next  of  kin  or  other  proper  person  as 
guardian  or  guardians  of  such  lunatic  or  lunatics  in  manner 
provided  by  law  governing  the  appointment  of  guardians  by 
the  orphans'  court.'' 

Petition — Form  and  Contents. 

In  all  applications  under  the  i)receding  section,  a  petition 
duly  verified  b\'  oath  of  the  petitioner  shall  be  presented  to 
said  judge,  which  petition  shall  set  forth  the  name  or  names, 
when,  where  and  how  long  confined,  and  the  age  of  such  person 
or  persons  possessing  such  personal  property,  the  value  of 
the  same,  and  what  it  consists  of.  whether  in  money  or  se- 
curities, and  what  relationship  said  lunatic  or  lunatics  bear 
to  the  petitioner ;  and.  provided  further,  that  the  affidavits 
of  two  physicians  connected  with  said  asylum  for  the  insane, 
one  of  whom  shall  be  the  superintendent  or  medical  director 
thereof,  shall  be  attached  to  said  petition  and  form  a  part  of 
the  same,  giving  a  full  medical  history  of  said  insane  person 
or  persons  while  confined  in  said  asylum  for  the  insane,  when 
admitted,  and  if  still  a  patient  or  patients,  and  In-  reason  of 
insanity  not  capable  to  receive,  manage  or  take  care  of  said 
personal  property.' 

FOR    NONRESIDENT    IDIOT     OR    LUNATIC. 

Statutory  Provisions. 

When  any  person  residing  out  of  this  state  hath  ])ccn  or 
shall  be  duly  found  and  proved  to  be  an  idiot  or  lunatic, 
according  to  the  laws  (jf  the  state,  territory,  nation  or  kingdom 
where  such  idiot  or  lunatic  shall  reside,  it  shall  and  may  be 
lawful    for  the  orphans'  court  of  any  county  in  the  state  in 

^2  Comp.  Stat.,  p.  2786.  sec.  3-h.  ^2  Comp.  Stat.,  p.  2786,  sec.  3-I1. 


776  Procate  Law  and  Practice. 

which  any  property  or  real  estate  of  such  idiot  or  lunatic 
may  be  found  or  situate,  or  for  the  ordinary  of  this  state, 
upon  application  made  to  them  for  that  purpose,  and  upor. 
exhibiting  to  the  said  court  and  tiling  in  the  surrogate's  office 
of  such  county,  or  with  the  register  of  the  prerogative  court, 
an  exemplified  copy  of  the  proceedings  upon  such  inquest  or 
finding  of  idiocy  or  lunac*',  or  upon  proof  being  made  that 
an  inquest  has  found  the  said  person  to  be  an  idiot  or  lunatic, 
and  that  such  person  is  yet  an  idiot  or  lunatic,  to  make  an 
order  that  cause  be  shown  before  the  court  to  whom  such 
•application  may  be  made,  at  a  certain  time  and  place  therein 
to  be  expressed,  not  less  than  thirty  days  nor  more  than  six 
months  from  the  time  of  making  such  order,  why  a  guardian 
should  not  be  appointed  for  the  said  idiot  or  lunatic,  which 
order  shall  be  served  or  published  in  such  manner  as  the 
said  court  shall  direct ;  provided,  that  when  it  shall  appear 
to  the  court  that  the  person  making  such  application  for  the 
appointment  of  guardian  has  been  appointed  guardian,  trustee 
or  committee  of  such  idiot  or  lunatic  in  the  state  or  king- 
dom where  the  said  person  may  have  been  found  by  an  in- 
quest an  idiot  or  lunatic,  in  that  case  the  said  court  may  at 
once  appoint  the  person  making  the  application  guardian  of 
such  idiot  or  lunatic,  without  the  order  to  show  cause  as  above 
stated.® 

Procedings  on  Return  of  Rule  to  Show  Cause. 

The  said  orphans'  court,  at  the  time  and  place  mentioned  in 
the  said  order,  or  at  such  other  time  and  place  as  they  may 
then  appoint,  shall  hear  and  examine  the  allegations  and  proofs 
of  the  party  making  such  application,  and  of  other  persons 
interested,  if  any  shall  apply  to  be  heard;  and  if  the  court 
upon  examination,  shall  be  of  opinion  that  letters  of  guardian- 
ship for  the  said  idiot  or  lunatic  ought  to  be  issued,  then  the 
said  court  shall  appoint  such  person  or  persons,  as  they  may 
approve,  guardian  or  guardians  of  the  said  idiot  or  lunatic.^ 

sRev.   1877,  p.  602,  as  amended  »Rev.    1877,    p.    602.      2    Comp. 

by   P.   L.    1890,   p.   507.     2  Comp.       Stat.,  p.  2784,  sec.  3. 
Stat.,  p.  2783,  sec.  2. 


Guardianship  of  Incompetents.  777 

Jurisdiction  of  Orphans'  Court. 

Under  the  prox  isions  of  the  preceding  section,  the  orphans' 
court  has  power,  upon  application  for  that  purpose,  and  upon 
proper  proceedings  and  proofs,  to  appoint  a  guardian  of  a 
hmatic  residing  in  another  state,  but  having  property  here,  and. 
in  its  discretion,  may  appoint  as  such  guardian  a  person  within 
this  state  or  the  committee  of  said  lunatic  in  the  foreign  state.'" 

Effect  of  Application  to  Orphans'  Court. 

Where  proceedings  for  the  appointment  of  a  guardian  for 
a  lunatic  residing  in  another  state  had  already  been  begun  in 
the  orphans'  court,  and  that  court  had  obtained  jurisdiction 
over  the  subject  matter,  a  petition  in  the  Court  of  Chancery 
praying  a  decree  for  the  payment  of  moneys  belonging  to  the 
lunatic,  and  then  in  its  control,  to  the  committee  of  the  lunatic 
in  a  foreign  state,  and  to  enjoin  further  proceedings  to  appoint 
a  guardian  in  the  orphans'  court,  was  held  to  have  been  prop- 
erly denied." 

JURISDICTION       OF       CHANCELLOR       TO       APPOINT 
GUARDIAN  FOR  LUNATIC  WITHOUT  IN- 
QUISITION   FOUND. 

Statutory  Provisions. 

The  statute  of  1915^'  provides  that  whenever  it  shall  be 
made  to  appear  to  the  Chancellor,  by  duly  verified  petition,  that 
any  person,  resident  of  this  state,  is  an  idiot  or  lunatic,  and 
that  no  inquisition  of  lunacy  has  been  issued  to  determine  such 
idiocy  or  lunacy  and  that  no  guardian  for  such  idiot  or  lunatic 
has  been  appointed  by  the  orphans'  court  of  the  county  in  which 
such  idiot  or  lunatic  resides,  and  that  said  idiot  or  lunatic  is 
possessed  of  real  or  personal  property,  it  shall  be  lawful  for 
the  Chancellor  to  ascertain,  in  a  summary  manner,  the  truth 
of  the  allegations  of  the  said  petition,  and  to  api)oint  a  guard- 
ian for  such  idiot  or  lunatic. 

The  act  further  authorizes  the  Chancellor  to  iiKjuire  into  and 
determine  the  question  of  insanit}-.  and  to  order  sale  of  land 
of  such  insane  person. 

'"Brown  v.  Wallis.  63  N.  J.  Eq.,  I'Brown  v.  Wallis.  63  N.  J.  Eq., 

791.  791- 

^-P.  L.  1915.  P-  57- 


7/8  Probate  Law  and  Practice. 

WHO    ENTITLED    TO    LETTERS. 

In  General. 

Tlie  nearest  of  kin  of  an  idiot  or  Innatic,  in  the  absence  of 
special  circumstances  disqualifying  them,  are  entitled  to  guard- 
ianship ;  but  if  the  applicant  be  one  of  several  in  equal  degree, 
he  will  be  required  to  produce  either  the  renunciation  and 
consent  of  those  e(|uall}-  entitled  with  him,  or  proof  that  at 
least  five  days'  notice  of  his  application  has  been  given  to  them. 
The  court,  however,  is  not  bound  to  select  the  guardian  from 
among  the  next  of  kin.  The  statute  authorizes  the  appoint- 
ment of  "some  fit  and  discreet  person";  and,  while  the  court 
will  usually  appoint  one  of  the  next  of  kin  guardian,  still 
when  it  appears  for  the  best  interests  of  the  lunatic  to  select 
one  other  than  the  next  of  kin,  the  court  has  the  power  so 
to  do. 

BOND   OF   GUARDIAN. 

Guardian  to  Give  Bond — Condition  of  Bond. 

Every  person  appointed  guardian  as  aforesaid  shall,  before 
he  enters  upon  the  duties  of  his  appointment,  enter  into  bond 
to  the  ordinary  of  this  state,  and  his  successors  in  office,  with 
two  or  more  sureties  being  freeholders,  approved  of  by  the 
orphans'  court,  in  such  sum  as  said  court  shall  order  and  direct, 
conditioned  that  the  said  guardian  shall  well  and  truly  take 
care  of  the  person  and  estate  of  said  idiot  or  lunatic,  and 
of  all  writings  and  evidences  touching  his  or  her  lands,  and 
render  the  same  to  such  person  or  persons  as  by  law  are  or 
may  be  entitled  to  receive  the  same,  and  render  a  just  and  true 
account  of  the  rents,  issues  and  profits  of  the  real  estate  of  the 
said  idiot  or  lunatic,  and  if  any  part  should  be  ordered  to  be 
sold,  that  he  or  she  will  render  a  just  and  true  account  of 
the  money  arising  on  the  sale  thereof,  and  in  the  meantime 
improve  the  said  lands  and  tenements  to  the  best  advantage, 
and  that  he  or  she  commit  no  waste  or  destruction  thereof 
or  thereon,  and  also  that  he  or  she  will  render  a  true  account 
of  the  expenditures  and  disbursements  of  the  goods,  chattels 


Guardianship  of  Incompetent-.  779 

and  personal  estate  of  said  idiot  or  lunatic,  that  shall  come  to 
his  or  her  hands. ^" 

\\'hile  this  section  is  a  part  oi  the  Revision  of  1877.  which 
l)rovided  only  for  the  appointment  of  a  guardian  after  inqui- 
sition found,  still  the  later  acts  ])roviding  for  the  appointment 
of  a  guardian,  under  certain  conditions,  without  an  incjuisition, 
are  in  form  supplements  to  the  Revision  of  1877,  and  are  thus 
engrafted  thereon.  The  provisions  of  this  section  therefore 
apply  to  the  bonds  of  all  guardians  of  idiots  and  lunatics, 
whether  appointed  after  inquisition  found  or  under  the  pro- 
\  i^i()ns  of  one  of  the  later  acts. 

Amount  of  Bond. 

The  practice  is  for  the  court  to  require  the  guardian  to  give 
a  bond  in  double  the  amount  of  the  personal  property  which 
will  come  into  his  hands.  \\'here  the  lunatic  is  possessed  of 
real  estate  or  other  property  producing  an  income,  the  same 
rules  should  be  followed  in  fixing  the  amount  of  his  bond  as 
are  heretofore  laid  down  for  fixing  the  amount  of  the  bond  of 
the  guardian  of  a  minor  under  like  circumstances.'^ 

New  Sureties  May  be  Required. 

The  orphans"  court,  when  they  shall  know  ov  ha\'e  cause 
to  suspect  that  the  sureties  of  a  guardian  of  an\-  idiot  or  luna- 
tic, or  any  of  them,  are  or  is  failing,  or  in  dubious  circum- 
stances, may  require  said  guardian  to  give  additional  surety 
or  sureties,  and  if  he  or  she  refuse  or  neglect  so  to  do,  may 
displace  him  or  her  and  on  application  ap])oint  another  person 
guardian  to  said  idiot  or  lunatic.'"' 

APPOINTMENT  OF  NEW  GUARDIAN  AFTER  DEATH  OF 
FIRST    APPOINTEE. 

New  Guardian  to  be  Appointed  in  Case  of  Death. 

In  case  of  the  death  of  any  guardian  of  any  idicjt  or  lunatic. 
appointed  under  this  act,  it  shall  be  lawful  for  said  orplian^' 

i3Rev.    1877,    p.   604.     2    Comp.  i-^'Rev.    1877.    p.   604.     2    Comp. 

Stat.,  p.  2793,  sec.  15.  Stat.,  p.  2793,  sec.  16. 

^*See    "Amount    of    Bond,"    ]). 
316,  supra. 


780  Probate  Law  and  Practice. 

court  forthwith  to  appoint  another  guardian  for  such  idiot  or 
lunatic,  if  said  court  be  then  sitting;  and  if  the  said  orphans' 
court  be  not  then  sitting,  it  may  be  lawful  for  any  one  of  the 
judges  of  said  court  to  call  a  special  orphans'  court  for  that 
purpose,  in  the  manner  directed  in  the  first  section  of  this 
act.i« 

POWERS  AND  DUTIES  OF  GUARDIAN. 

General  Powers  of  Guardian. 

The  guardian  of  a  lunatic  is  a  mere  curator,  without  title 
in  the  property  of  the  lunatic.  As  such  curator,  he  possesses 
the  power  to  repair  and  improve,  for  the  purpose  of  pre- 
serving the  estate  of  his  ward  ;  but  the  right  to  exercise  any 
control  over  the  property  of  his  ward,  Ijeyond  this,  must  be 
found  in  some  legislative  grant.'' 

Statutory  Powers  and  Duties. 

Such  guardian  shall  have  the  care  and  safe  keeping  of 
said  idiot  or  lunatic,  his  or  her  lands,  tenements,  goods  and 
chattels,  that  the  said  idiot  or  lunatic  may  live  and  be  com- 
petently supported  and  maintained  by  and  out  of  his  or  her 
goods,  chattels  and  the  profits  of  his  or  her  lands  and  tene- 
ments, and  that  no  waste  or  destruction  of  his  or  her. lands 
or  tenements  be  done  or  permitted,  and  such  lands  shall  in 
no  wise  be  aliened,  saving  that  the  same  be  done  by  authority 
of  this  or  some  other  statute  of  this  state.  Init  shall,  upon  the 
death  of  any  such  idiot,  descend  and  go  to  his  or  her  heirs, 
and  the  residue  of  the  goods,  chattels  and  profits  of  said  idiot, 
after  payment  of  his  or  her  just  debts,  shall  go  to  and  be  dis- 
tributed according  to  law  among  his  or  her  next  of  kin ;  and 
in  case  any  such  lunatic  shall  come  to  his  or  her  right  mind, 
that  the  lands  and  tenements,  with  the  residue  of  the  goods, 
chattels  and  profits  of  such  lunatic,  be  restored  to  him  or  her. 
and  in  case  he  or  she  shall  die  in  his  or  her  lunacy,  such  lands 

i6Rev.    1877,    p.    604.      2    Comp.  I'Cooper   v.   Wallace.    55    N.   J. 

Stat,  p.  2793,  sec.   17.     For  pro-       Eq.,  IQ2.     Van  Horn  v.  Hann,  39 
ceedings  to  require  account  from       N.  T.  L.,  207. 
personal  representative  of  deceas- 
ed guardian,  see  p.  783,  infra. 


Guardianship  of  Incompetents.  781 

and  tenements  shall  descend  and  go  to  his  or  her  heirs,  and 
the  residue  of  the  goods,  chattels  and  protits,  after  payment  of 
his  or  her  just  debts,  shall  go  to  and  be  distril)uted  according 
to  law  among  such  lunatic's  next  of  kin.^* 

While  the  foregoing  provisions  form  a  part  of  tlie  Revision 
of  1877,  providing  for  the  appointment  of  a  guardian  after  an 
inquest  found,  they  unquestionably  apply  to  guardians  ap- 
pointed under  the  later  acts,  which  are  as  has  been  before  said, 
in  form  supplements  to  the  Revision  of  1877  and  thus  en- 
grafted thereon. 

Support  of  Family. 

The  husband  is  liable  for  all  things  necessary  for  the  com- 
fortable support  and  maintenance  of  his  wife  and  family,  con- 
sistent with  his  station  or  condition  in  life :  and  this  liability 
continues  notwithstanding  his  insanity.  It  follows,  therefore, 
that  the  estate  of  an  insane  person  is  liable  for  the  proper 
support  of  his  wife  and  family.^^ 

Funeral  Expenses  of  Wife. 

A  husband  is  liable  to  defray  all  necessary  expenses  inci- 
dent to  the  decent  burial  of  his  wufe,  and  the  insanity  of  the 
husband  does  not  destroy  that  liability ;  the  estate  of  an  insane 
person  is  therefore  liable  for  the  same,  and,  where  the  guard- 
ian of  a  lunatic  pays  such  funeral  expenses,  he  is  entitled  to 
re-imbursement  out  of  the  proceeds  of  the  sale  of  his  ward's 
real  estate,  although  the  wife,  by  will,  directed  that  such 
expenses  should  be  paid  from  her  separate  estate.  Under  such 
circumstances,  however,  there  is  strong  reason  for  insisting 
that,  since  the  wife  had  a  separate  estate  and  by  her  will 
charged  it  with  the  payment  of  her  funeral  expenses,  in  equity, 
if  not  in  law,  she  intended  to  exonerate  her  husband's  estate 
from  all  lial)ility  therefor;  and  to  guard  against  mistake,  the 
guardian  should  file  his  claim  ior  these  expenses  with  the 
executor  of  the  wife's  will.-" 

J«Rev.    1877,    p.   6or.     2    Comp.  ^ojn    re    Stewart,    22   Atl.    Rep.. 

Stat.,  p.  2781,  .sec.  I.  122. 

'^In    re    Stewart.    22    .\t\.    Rep., 
122. 


782  ^  Probate  Law  and  Practice. 

Debts  of  Insane  Person. 

The  statutes-^  clearly  provide  that  the  guardian  should  pay 
all  of  the  debts  of  the  insane  person ;  and  equity  will  require 
the  guardian  of  a  lunatic  to  redeem,  for  the  benefit  of  the 
wife,  her  jewels,  pawned  by  the  husband,  while  sane,  to  pay 
his  personal  expenses,  the  proceeds  being  actually  so  applied. -- 

Jurisdiction  of  Court  to  Order  Use  of  Principal  for  Support 
of  Ward. 

The  orphans'  court  has  jurisdiction  to  authorize  the  use  of 
the  principal  of  the  idiot's  or  lunatic's  personal  estate,  or 
such  part  thereof,  as  it  may  deem  for  his  best  interests.-''  The 
principles  governing  applications  of  this  character  are  fully  con- 
sidered elsewhere.-^" 

Jurisdiction   of   Chancery  to   Instruct   Guardian  as  to   His 
Duties. 

Where  the  duty  of  a  guardian  is  a  matter  of  doubt,  it  is  his 
right  to  ask  and  receive  the  aid  of  a  court  of  equity  in  the 
execution  of  his  trust ;  as  caretaker  of  the  estate  of  the  noii 
compos,  there  may  clearly  occur  occasions  when  the  direction 
of  a  court  of  equity  may  be  properly  invoked  concerning  the 
line  of  conduct  which  the  guardian  should  follow  in  his  efforts 
to  preserve  the  estate.-^ 

DUTY  OF  GUARDIAN  TO  ACCOUNT. 

In  General. 

It  shall  be  the  duty  of  every  guardian  of  any  idiot  or  luna- 
tic once  in  three  years,  and  oftener,  in  case  the  orphans'  court 
shall  so  order  and  direct,  to  render  to  the  orphans'  court  from 
Avhom  he  or  she  received  his  or  her  appointment  as  guardian, 
a  true  account  of  his  or  her  administration  of  the  estate 
of  the  said  idiot  or  lunatic,  and  he  or  she  may  be  cited  by 

-^2  Comp.   Stat.,  p.  2781,  sec.   i,  -^''See  "When  Order  Should  Be 

p.   773^    supra.     2   Comp.    Stat.,   p.  Granted,"  p.  771,   supra. 

2787,  sec.  4,  as  amended  by  P.  L.  -*Cooper  v.  Wallace.   55    N.   J. 

191 1,  p.  70,  p.  786,  infra.  Eq.,   192.     See  also   P.  L.   1903,  p. 

22Harrairs   Case   31    N.   J.   Eq.,  112.     2  Comp.  Stat.,  p.  2792,  sec. 

loi.  14-I. 

-^2  Comp.  Stat.,  2633,  sec.  19. 


Guardianship  of  Incompetents.  yS^ 

the  said  court  to  do  the  same,  on" the  application  of  any  one  of 
the  heirs  or  next  of  kin  to  the  said  icHot  or  lunatic.-"' 

Accounting  by  Guardian  After  Death  or  Coming  of  Sane 
Mind  of  Ward. 

On  the  death  of  any  such  idiot  or  lunatic,  or  the  coming 
of  sane  mind  of  any  lunatic,  the  guardian  of  such  idiot  or 
lunatic  may  be  compelled  to  render  an  account  of  his  or  her 
administration  of  the  estate  of  such  idiot  or  lunatic  to  the 
orphans'  court,  in  the  same  manner  as  executors  and  adminis- 
trators are  compelled  by  law  to  render  an  account  of  the  ad- 
ministration of  the  estate  of  testators  and  intestates.-*^ 

Accounting  by  Guardian  Appointed  by  Chancellor. 

Where  a  guardian  for  a  lunatic  has  been  appointed  by  the 
Court  of  Chancery,  the  general  jurisdiction  of  equity  extends 
over  such  guardian,  and  he  should  account  in  that  court.  The 
foregoing  section  of  the  statute  requiring  guardians  of  idiots 
and  lunatics  to  file  their  account  in  the  orphans'  court  applies 
only  to  guardians  appointed  by  that  court,  and  does  not  extend 
to  a  guardian  appointed  by  the  Court  of  Chancery  ;  and  the 
Court  of  Chancer}-  may  call  upon  him  to  render  an  account  of 
his  trust.-" 

Representatives  of  Deceased  Guardian  to  Account. 

\\'henever  a  new  guardian  is  appointed,  as  aforesaid,  upon 
the  death  of  a  former  guardian  of  any  idiot,  or  lunatic,  the 
executor  or  executors,  administrator  or  administrators  of 
every  such  deceased  guardian,  shall  account  to  such  new 
guardian  for  all  ]M-operty  of  such  idiot  or  lunatic  in  their 
possession  or  under  their  control  ;  or.  if  required,  shall  ac- 
count for  the  same  before  the  said  orj^hans"  coifrt.  upon  a 
citation  issued  for  that  pur])ose.  at  the  instance  of  such  new- 
guardian.-* 

-5Rcv.    1877,    p.  604.  2    Comp.  27Compton's  Case,  70  N.  J.  Eq.. 

Stat.,  p.  2793,  sec.  19.  556. 

-6Rev.    1877,    p.  604.  2    Comp.  ^kr^.^.     jg^-^    ^     ^^      ^   Comp. 

Stat.,  p.  2793.  sec.  19.  Stat.,  p.  2793,  sec.  18. 

51 


^84  Probate  Law  and  Practice. 

DEVOLUTION  OF  PROPERTY  ON  DEATH  OF  LUNATIC. 

Statutory  Provisions. 

In  case  of  the  death  of  any  idot  or  kmatic,  when  the  lands, 
tenements,  hereditaments  or  real  estate,  or  any  part  thereof, 
hath  been  sold  by  order  of  the  orphans'  court,  and  at  his  or 
her  death  personal  estate  shall  remain  in  the  hands  of  the 
guardian  more  than  sufficient  to  pay  the  just  debts  of  such 
idiot  or  lunatic,  so  much  thereof  as  shall  be  equal  in  value  to 
the  real  estate  so  sold,  shall  be  deemed  and  taken  to  be  real 
estate,  and  go  to  the  heirs  of  the  deceased ;  the  personal  estate 
and  the  rents,  issues,  and  profits  of  the  real  estate  being  the 
funds  first  to  be  applied  to  the  support  and  maintenance  of  the 
idiot  or  lunatic.-^ 

APPOINTMENT    OF  GUARDIANS   FOR   DRUNKARDS. 

Jurisdiction  of  Court. 

It  shall  be  lawful  for  the  court  of  chancery  to  issue  a  com- 
mission in  the  nature  of  a  writ  de  lunatico  inquirendo,  as 
heretofore  practiced  and  allowed,  and  returnable  thereto,  to 
inquire  into  the  habitual  drunkenness  of  any  person  in  this 
state,  and  in  case  of  habitual  drunkenness  found,  by  reason 
of  which  such  habitual  drunkard  has  become  incapable  of  con- 
trolling or  managing  himself  or  his  estate,  or  is  wasting  his 
estate,  the  chancellor  shall  cause  to  be  transmitted  to  the  or- 
phans' court  of  the  county  where  such  habitual  drunkard  may 
reside,  a  certified  copy  of  all  proceedings  which  may  be  had 
thereon,  which  shall  be  recorded  and  filed  in  the  surrogate's 
office  of  said  county,  and  thereupon  the  said  orphans'  court, 
upon  application  for  that  purpose,  is  hereby  directed  and 
required  to  appoint  a  guardian  or  guardians  for  such  habitual 
drunkard,  who  shall  have  the  same  power  over  the  person 
and  estate  of  such  habitual  drunkard,  and  perform  the  same 
duties,  and  be  subject  to  the  same  liabilities,  as  are  conferred 
on  and  required  of  the  guardian  or  guardians  of  an  idiot  or 
lunatic  by  the  act   entitled,   "An  Act  Concerning   Idiots  and 

-'jRev.    1877,    p.    604.     2    Comp. 
Stat.,  p.  2793.  sec.  19. 


Guardianship  of  Incompetents.  785 

Lunatics,"  approved  April  sixteenth,  one  thousand  eight  hun- 
dred and  forty-six. ^° 

Extent  of  Jurisdiction. 

It  is  apparent,  from  an  examination  of  the  statutes,  that 
the  legislature  designed  not  only  to  place  the  original  appoint- 
ment of  guardians  of  the  estates  of  persons  found  to  be  habit- 
ual drunkards  under  the  jurisdiction  of  the  orphans'  court,  ])ut 
to  give  that  court  the  necessary  control  over  the  guardian.s 
appointed  by  them,  to  secure,  so  far  as  it  might  be  done  by  the 
exercise  of  the  powers  conferred  on  the  court  to  that  end, 
fidelity  in  the  discharge  of  their  duties  and  protection  not  only 
to  the  estates  committed  to  their  hands,  but  also  to  their 
sureties ;  and  the  orphans'  court  has  as  full  power,  control  and 
jurisdiction  over  such  guardians  as  over  those  appointed  for 
infants.-^ 

Control  of  Property  Vested  in  Guardian. 

After  such  inquisition  found  as  aforesaid,  and  until  the 
same  be  determined,  such  habitual  drunkard  shall  be  divested 
of  all  power  and  control  over  and  legal  estate  in  his  property, 
real,  personal,  or  in  action,  and  the  same  shall  be  vested  in  hi^ 
guardian  in  trust  for  him,  and  no  contracts  made  In'  him  shall 
hind  either  his  j^erson  or  estate. "'- 

Guardian    May    Apply    to    Court    for    Instructions    as    to 
Management  of  Estate. 

It  shall  be  lawful  for  the  guardian  of  any  habitual  drunk- 
ard, by  petition  in  writing,  to  the  court  of  chancery  or  the 
orphans'  court,  to  apply  for  an  order  directing  what  amount 
may  be  expended  by  such  guardian  for  the  support  and  main- 
tenance of  said  drunkard  or  that  of  his  or  her  family  or 
household,  out  of  his  or  her  personal  estate  and  the  income 
thereof,  and  the  profits  of  his  or  her  lands  and  tenements, 
or  directing  the  payment  of  any  debts  of  said  drunkard  or  his 
or  her  family,  or  otherwise  directing  said  guardian  in  relation 

302  Comp.  Stat.,  p.  2797,  sec.  25.  ^-Rew   1877,   p.   325,   sec.   4.     2 

3iDickerson  v.  Dickerson,  31  N.       Comp,  Stat.,  p.  27C)S,  sec.  28. 
J.  Eq.,  652. 


786  Probate  Law  and  Practice. 

to  the  management  and  preservation  of  the  estate  of  said 
drunkard,  and  the  court  of  chancery  or  the  orphans'  courts 
are  hereby  authorized,  on  investigation  of  the  matter  in  said 
petition  alleged,  to  make  such  order  or  decree  as  shall  be 
equitable  and  just  in  the  premises,  and  to  direct  what  notice 
if  any,  shall  be  given  of  the  proceedings  to  be  had  under  such 
application ;  and  the  costs  of  such  application  and  proceed- 
ings thereunder  shall  be  paid  out  of  the  estate  of  said  drunk- 
ard.^^ 

Sale  of  Lands. 

The  like  powers  are  hereby  conferred  on  the  orphans'  courts, 
and  the  like  proceedings  shall  be  had  relative  to  a  sale  of 
timber  or  lands  of  an  habitual  drunkard,  as  are  required  in 
the  act  entitled,  "An  act  concerning  idiots  and  lunatics,"  afore- 
said.^* 

Distribution  of  Estate  and  Descent  of  Land  of  Drunkard  at 
Death. 

Upon    the    death    of    any    such    habitual    drunkard,    intes 
tate  or  without  any  will,  except  such  as  was  executed  during 
the  existence  of  said  inquisition,  his  personal  estate  shall  be 
distributed  according  to  law  among  his  next  of  kin,  and  his 
land  shall  descend  and  go  to  his  heirs. ^^ 

Sale  of  Intoxicating  Liquors  to  Drunkard  After  Notice — 
Penalty. 

If  any  innkeeper,  distiller,  grocer,  or  other  person,  shall 
receive  notice  from  the  guardian  of  the  estate  of  an  habitual 
drunkard,  not  to  furnish  or  supply  him  intoxicating  liquor 
and  shall  after  such  notice  sell,  or  in  any  manner  furnish, 
or  supply  any  intoxicating  liquor  to  such  drunkard,  or  any 
person  for  him,  every  person  so  selling  or  furnishing  shall 
forfeit  and  pay  the  sum  of  ten  dollars,  for  each  and  every 
time  he  or  they  may  sell  or  furnish  the  same,  to  be  recovered 

33P.  L.   1910,  p.    157,,   sec.   I.     2  2  Comp.    Stat.,  p.  27^7.   sec.  4,  p. 

Comp.  Stat.,  p.  2798,  sec.  33.  787,  infra. 

3*Rev.    1877,    p.   325,   sec.   3.     2  ssRev.    1877.    p.    325.   sec.    2.     2 

Comp.  Stat.,  p.  2798,  sec.  27.    See  Comp.  Stat.,  p.  2797,  sec.  26. 


Guardianship  OF  Ixcompi-tents.  7^7 

ill  an  action  of  debt,  one-half  to  any  person  who  shall  sue  fur 
the  same,  and  one-half  tcj  ihe  overseers  of  the  poor  of  the 
township  in  which  suit  may  !)e  brought.-^" 

SALE  OF  LANDS  OF  IDIOTS,  LUNATICS  AND  HABITUAL 
DRUNKARDS. 

Jurisdiction  of  Court. 

If  any  idiot,  lunatic  or  habitual  drunkard  is  justly  indebted 
to  any  person  or  persons,  or  if  any  person  or  persons  shall 
have  advanced  moneys,  purchased  necessaries  or  rendered 
services  on  account  of  any  such  idiot,  lunatic  or  habitual  drunk- 
ard, for  his  or  her  care,  support  or  maintenance  or  for  the 
preservation  or  benefit  of  his  or  her  estate,  beyond  the  ability 
of  any  such  idiot,  lunatic  or  habitual  drunkard  t(o  pay  the 
same  out  of  the  income  of  the  estate,  real  and  personal,  of  such 
idiot,  lunatic  or  habitual  drunkard,  or  in  case  the  income  of 
such  idiot,  lunatic  or  habitual  drunkard,  including  the  profits, 
of  his  or  her  personal  and  real  property,  shall  be  insufficient 
for  his  or  her  support  and  comfortable  maintenance,  and  that 
of  his  or  her  household,  if  any  he  or  she  shall  have,  it  shall 
and  may  be  lawful  for  the  Chancellor  of  this  state  or  the  Or- 
phans' Court  of  the  county  in  which  the  lands  and  tenements 
of  any  such  idiot,  lunatic  or  habitual  drunkard  shall  be  situate, 
on  full  investigation  of  the  situation  and  circumstances  of  the 
idiot's,  lunatic's  or  habitual  drunkard's  real  and  personal 
estate,  and  of  the  just  debts  owing  by  him  or  her,  and  of  the 
advances  that  have  been  made  on  his  or  her  account,  and  of 
the  services  rendered  for  him  or  her  or  for  his  or  her  estate, 
from  time  to  time,  to  order  the  guardian  of  said  idiot,  lunatic 
(jr  habitual  drunkard  to  sell  so  nmch  of  the  timber,  grow- 
ing or  being  upon  the  lands  of  said  idiot,  lunatic  or  habitual 
drunkard,  or  to  sell  such  ])arts  of  the  said  idiot's,  lunatic's 
or  habitual  drunkard's  lands,  tenements,  hereditaments  or 
real  estate,  or  to  use  so  much  of  any  money  or  proceeds  of 
sale  received  from  the  sale,  already  made,  of  any  real  estate 
or  personal  property  of  said  idiot,  lunatic  or  habitual  drunk- 

36Rev.    1877,    p.    .325,    sec.    6.    2 
Comp.  Stat.,  p.  270R,  sec.  30. 


788  Probate  Law  and  Practice. 

ard,  as  the  Chancellor  or  said  Orphans'  Court  shall  direct  and 
judge  sufficient  to  pay  his  or  her  just  debts  and  the  advances 
as  above-mentioned,  and  proper  and  necessary  for  his  or  her 
support  and  maintenance,  and  for  the  support  of  his  or  her 
household,  if  any  he  or  she  have."' 

Application  for  Sale — Form  and  Contents. 

The  application  to  the  orphans*  court  for  an  order  directing 
a  guardian  to  sell  the  lands  of  his  ward  should  be  by  petition, 
verified  by  the  oath  or  affirmation  of  the  party  making  the 
same.^* 

Report  of  Sale  to  Orphans'  Court. 

After  the  lands,  tenements  and  real  estate  of  such  idiot  or 
lunatic  so  ordered  to  be  sold,  shall  be  sold,  said  guardian  or 
guardians  shall  make  report  in  writing,  of  all  proceedings 
thereon,  to  the  next  orphans'  court  after  such  sale."" 

Form  and  Contents  of  Report. 

The  report  of  sale  is  required  to  be  under  oath,'*'*  to  state 
the  names  and  addresses  of  all  parties  in  interest,  and  to  have 
annexed  thereto  affidavits  of  at  least  two  persons  familiar 
with  the  value  of  property  in  the  neighborhood  where  the 
lands  so  sold  are  located,  giving  the  fair  market  value  of  the 
lands  and  premises  so  sold.*^ 

Notice  of  Intention  to  Report  Sale  for  Confirmation. 

Notice  of  the  intention  of  any  guardian  to  make  report  of 
any  sale  to  the  orphans'  court  shall,  unless  the  court  shall  other- 
wise direct,  be  given  to  all  persons  in  interest. *- 

Service  of  Notice. 

Five  days'  notice  of  such  application  shall  be  given  to  all 
persons   in   interest  who   are   residents   of   the   state  of   New 

3'2  Comp.  Stat.,  p.  2787,  sec.  4,  ■"^Orphans'    Court    Rule    33,    p. 

as  amended  by  P.  L.  191 1,  p.  70.  763,  supra. 

380rphans'    Court    Rule    33,    see  ^^Orphans'    Court    Rule    34,    p. 

p.  763,  supra.  763,  supra. 

39Rcv.    1877,    P-    60Z     2    Comp.  ^^Orphans'    Court    Rule    35,    p. 

Stat.,  p.  2788,  sec.  5.  764,  supra. 


GUAkDlAXSillP  OF  IXCOMI'ETENTS.  789 

lersey,  and  not  less  than  five,  nor  more  than  sixty,  days' 
notice,  as  the  court  may  by  order  direct,  to  all  such  persons  in 
interest  who  shall  reside  without  the  state  of  New  Jersey, 
which  last  mentioned  notice  ma\  he  sent  1)\  mail,  with  the 
postage  thereon  prepaid/" 

Bond  of  Guardian  on  Sale  of  Land. 

The  Orphans'  Court,  on  granting  an  order  to  a  guardian  to 
sell  land,  or  timber  on  the  land  of  his  ward,  shall  examine 
as  to  the  sufiiciency  of  the  bond  of  the  guardian  previously 
given,  and  if,  in  its  judgment,  said  bond  is  insufficient,  it  shall 
require  the  guardian  to  give  such  additional  bond  for  tjie  faith- 
ful execution  of  his  office  as.  in  its  judgment,  shall  be  ade- 
quate.** 

Guardian's  Deed — Form  and  Effect, 

The  said  guardian  or  guardians  shall  make  a  deed  to  the 
purchaser  or  purchasers,  for  the  lands,  tenements,  heredita- 
ments and  real  estate  so  sold,  which  deed  shall  set  forth  the 
said  order  at  large,  and  shall  vest  in  the  purchaser  or  pur- 
chasers, as  good  and  perfect  an  estate  in  the  premises  so  sold, 
as  the  said  idiot  or  lunatic  shall  be  seized  of  or  entitled  to  at 
the  time  of  making  said  order  by  the  court.*'"' 

Payment  of  Proceeds  of  Sale  to  Non-Resident  Guardian. 

Whenever  any  such  sale  shall  have  been  made  by  order  of  the 
Chancellor  as  aforesaid,  or  whenever  any  idiot  or  lunatic  shall 
be  entitled  to  property  of  any  description  in  this  state,  and 
such  idiot  or  lunatic  shall  be  a  non-resident  and  shall  have  a 
guardian  in  the  state  or  place  of  his  or  her  residence,  and 
such  non-resident  guardian  shall  produce  an  exemplification 
from  under  the  seal  of  the  office  (if  there  be  a  seal)  of  the 
court  in  the  state  or  place  of  his  residence,  containing  all  the 
entries  on  record  in  relation  to  his  appointment  and  giving 
bond,  or  of  appointment  only,  when  the  said  non-resident 
guardian  is  a  cor])oration  or  ])ublic  official  (|nalifie(l  to  act  as 

^sOrphans"    Court    Rule    35,    p.  '•■^Rev.    1877,    p.    602.      2    Comp. 

764,  supra.  Stat.,  p.  2788,  sec.  6. 

^^Orphans'    Court    Rule   36. 


790  Probate  Law  and  Practice;. 

guardian  without  giving  bonds,  and  authenticated  as  required 
by  the  act  of  Congress  in  such  cases,  or  if  the  non-resident 
guardian  shall  produce  a  certiticate  of  a  court  or  public  official 
of  the  State,  province  or  place  where  he  holds  office,  certifying 
that  he  is  such  guardian  and  under  the  law,  is  not  required  to 
give  bond  as  such  guardian,  the  Chancellor,  or  the  ordinary,  or 
Orphans'  Court  of  the  proper  county  in  this  State  may  cause 
suitable  orders  to  be  made,  authorizing  the  delivering  and  pass- 
ing over  the  proceeds  of  any  such  sale,  or  any  property  in  this 
State  to  which  such  idiot  or  lunatic  may  be  entitled,  to  such 
non-resident  guardian,  and  discharging  any  resident  guardian, 
executor*  administrator  or  trustee,  and  requiring  receipts  to 
be  passed  and  recorded  if  deemed  advisable ;  provided,  that » 
thirty  days'  notice  shall  be  given  to  the  resident  guardian, 
executor,  administrator  or  trustee  of  the  intended  application 
for  the  order  of  remo\'al,  unless  it  shall  appear  to  the  court 
that  such  notice  has  been  waived,  or  that  the  application  is 
made  by  the  resident  guardian,  and  the  court  may  reject  the 
application  and  refuse  such  order  whenever  it  is  satisfied 
that  it  is  for  the  interest  of  such  idiot  or  lunatic  that  such 
removal  shall  not  take  place. ^'' 

JURISDICTION   OF   ORPHANS'   COURT   TO   AUTHORIZE 
REMOVAL  FROM  THE  STATE  OF  PROPERTY. 

When  Court  May  Make  Such  Order. 

In  case  any  guardian  and  his  ward  are  both  residents  of 
another  state  or  of  a  foreign  country,  and  such  ward  is  entitled 
to  any  property,  real  or  personal,  in  which  shall  be  included 
property  or  money  in  the  hands  of  any  resident  guardian, 
any  legacy  or  distributive  share  in  the  hands  of  any  execu- 
tor or  administrator  in  this  state,  moneys  in  the  hands  of 
any  commissioner,  officer  or  other  person,  being  the  proceeds 
of  the  sale  of  lands  under  any  judicial  proceedings,  or  awarded 
as  damages  for  the  taking  of  lands  under  any  legislative  au- 
thority, or  deposited  in  any  court  of  this  state,  arising  from  the 
sale  of  any  property  of  such  ward  or  otherwise,  and  moneys 

*^2  Comp.  Stat.,  p.  2789,  sec.  14, 
as  amended  by  P.  L.  1914,  p.  551. 


Guardianship  OF  Incompetents.  791 

or  funds  under  the  direction  or  control  of  the  chancellor,  it 
shall  be  lawful  for  the  ordinary  or  the  orphans'  court  of  the 
proper  county  to  make  an  order  that  such  guardian  may 
receive  the  rents,  issues  and  profits  of  such  real  estate,  and 
demands,  sue  for,  collect  and  receive  such  legacy,  distributive 
share,  moneys  or  other  personal  property,  and  remove  the 
same  to  the  place  of  the  residence  of  himself  and  ward;  and 
the  delivery,  transfer  or  payment  of  such  property  or  money 
to  such  guardian  after  the  making  of  such  order  shall  be  a 
legal  discharge  and  acquittance  for  the  same/' 

Construction  of  Statute. 

This  act  does  not  contemplate  a  litigation  to  establish  the 
amount  due  to  the  ward.  In  proceedings  under  this  act,  where 
the  property  sought  to  be  removed  is  a  deljt  due  to  the  ward, 
it  is  not  incumbent  on  the  court  to  settle  the  question  whether 
a  debt  is  due  or  not,  except  so  far  as  may  be  necessarv  to 
satisfy  it  that  there  is  property  to  he  removed,  what  it  is,  and 
the  amount  of  it ;  that  is,  so  far  as  may  be  necessar\-  to  enable 
the  court  to  adjudicate  upon  the  matters  wdiich  are  submitted 
to  it  in  the  proceedings — the  sufficiency  of  the  security,  whether 
it  is  for  the  interest  of  the  ward  that  the  removal  should  take 
place,  whether  the  removal  will  conflict  with  any  terms  or 
limitations  attending  the  right  by  which  the  ward  owns  or  is 
entitled  to  the  property,  and  whether  the  interest  of  any  citizen 
of  this  state  in  the  property  may  be  prejudiced  by  the  re- 
moval.^* 

Proceedings  to  Obtain  Order. 

Before  any  such  order  as  is  mentioned  in  the  last  section 
shall  be  made,  proof  to  the  satisfaction  of  the  ordinary  or 
orphans'  court  shall  be  made,  by  certificate,  according  to  the 
acts  of  congress,  in  case  the  guardian  and  ward  reside  in 
another  state,  or  by  attestation  under  the  seal  of  the  court 
wherein,  or  officer  before  whom  the  proceedings  were  had. 
if  their  residence  be  in  a  foreign  country,  of  the  appointment 
of   such  guardian,   and   that   he   has   given   ade(|uate   security 

*~2  Comp.  Stat.,  p.  2629,  sec.  6.  -"^Mahnken's  Case,  36  N.  J.  Eq., 

518. 


792  Pkobate  -Law  and  Practice;. 

as  such  guardian  in  double  the  amount  in  value  of  such  prop- 
erty, over  and  above  the  value  of  the  property  of  such  ward 
in  the  place  of  his  residence ;  and  in  case  the  ordinary  or 
orphans'  court  shall  not  be  satisfied  with  the  sufficiency  of 
such  security,  additional  security,  to  be  given  in  this  state, 
ma}"  be  required  in  such  form  as  the  ordinary  or  court  shall 
direct.*'* 

Notice  of  Application, 

Twenty  days  notice  of  an  application  for  the  removal  of 
property  under  the  preceding  section  shall  be  given  to  thfc 
resident  guardian  or  the  executor  or  administrator  in  whose 
custody  such  property  shall  be,  and  the  ordinary  or  orphans' 
court  may  direct  notice  of  such  intended  ajjplication  to  be 
given  to  other  persons  interested ;  proz'ided,  nevertheless,  that 
the  ordinary  or  orphans'  court  may  reject  such  application 
and  refuse  such  order  whenever  it  shall  appear  that  it  is  for 
the  interest  of  the  ward  that  such  removal  shall  not  take 
place ;  and  no  order  shall  be  made  in  any  case  where  such 
removal  will  conflict  with  the  terms  or  limitations  attending 
the  right  by  which  the  ward  owns  or  is  entitled  to  such  prop- 
erty, or  the  interests  of  any  citizen  of  this  state  in  such  prop- 
erty may  be  prejudiced. ^° 

Miscellaneous  Jurisdiction  of  Chancery  in  Connection  With 
Estates  of  Lunatics. 

The  statute  provides  for  various  proceedings  in  relation  to 
the  estates  of  idiots  and  lunatics  which,  while  not  within  the 
scope  of  this  work,  should  be  referred  to.  Thus,  where  an 
incompetent  is  a  member  of  a  partnership,  the  chancellor  may, 
on  application  of  the  partner  of  such  lunatic,  dissolve  the 
partnership  ;^^  and  where  the  lands  of  any  idiot  or  lunatic  are 
subject  to  an  estate  by  the  courtesy  or  in  dower,  or  to  an 
estate  for  life  or  for  years  devised  to  any  woman  in  lieu  of 
dower,  such  tenant  by  the  curtesy  or  doweress  may  elect  to 
accept  such  gross  sum  in  lieu  thereof  as  may  be  approved  by 
the  Chancellor,  who  may  order  the  payment  of  such  sum  to  the 

*«2  Comp.  Stat.,  p.  2630,  sec.  7.  ^'^2    Comp.    Stat.,    p.    2790.    sec, 

5°2  Comp.  Stat.,  p.  2630,  sec.  8.       14-a, 


Guardianship  of  Ixco.mpetexts.  793 

tenant  in  curtesy  or  dower.''-  Tlie  guardian  of  an  idiot  or 
lunatic  may  apply  to  the  Court  of  Chancery  for  directions  as 
to  what  amount  he  shall  expend  yearly  for  the  support  and 
maintenance  of  such  idiot  or  lunatic,  or  of  his  household.''^ 

Where  any  power,  discretionary  or  otherwise,  is  vested  in, 
or  the  exercise  of  any  power  is  dependent  upon  the  consent  of 
a  person  of  unsound  mind,  the  court  may,  ui)on  the  application 
of  his  guardian,  authorize  and  direct  him  to  exercise  such 
power  or  execute  such  consent.^'' 

Where  it  is  represented  to  the  Chancellor,  upon  the  appli- 
cation of  the  guardian  of  any  incompetent  person,  that  it  would 
be  advantageous  to  him  or  his  family  that  a  dwelling  house 
should  be  purchased  for  the  use  of  such  incompetent  and  his 
family,  the  Chancellor  may  order  the  guardian  so  to  do/"'^ 

Where  the  income  of  an  incompetent  is  more  than  sufficient 
for  his  supi)ort  and  that  of  his  family,  the  court  may  order 
that  such  surplus  income  be  applied  by  the  guardian  of  such 
incompetent  to  the  support  of  his  indigent  relatives. ^"^ 

Whenever  any  person  of  unsound  mind  is  seized  or  possessed 
of  any  real  estate  by  way  of  mortgage,  or  as  a  trustee  for 
others  in  any  manner,  his  guardians  may  apply  to  the  court 
for  authority  to  convey  such  real  estate  to  any  person  entitled 
to  such  con\eyance,'''  and  the  person  entitled  to  such  con- 
veyance ma\-  apply  to  the  court  for  relief.^* 

The  court  also  has  power  to  compel  the  specific  performance 
of  any  contract  made  by  such  incompetent  while  he  was  of 
>oun(l  mind.^^ 

5-2  Comp.    Stat.,    p.    2790,    sec.  ^^'•2    Coinp.    Stat.,    p.    2792,    sec. 

14-b.  14-ni. 

5"2  Comp.    Stat.,    p.    2791,    sec.  ^~2    Comp.    Stat.,    p.    2791.    sec. 

i4-d-  14-e. 

5^2  Comp.    Stat.,    p.    2792,    sec.  ^^2    Comp.    Stat.,    p.    2791,    sec. 

i4-j-  14-f. 

5^2  Comp.    Stat.,    p.    2792,    sec.  ^>^2    Comp.    Stat.,    p.    2791,    sec. 

14-I.  14-h. 


PART  V. 


Adoptiox  of  ]\rixoRs. 


CHAPTER  XXXVII. 

ADOPTION  OF  MINORS. 

A  Statutory  Proceeding, 

The  adoption  of  children,  although  a  practice  of  great  an- 
tiquity, recognized  by  the  civil  law  througliout  its  entire  history. 
and  observed  in  countries  whose  jurisprudence  is  founded  upon 
that  law,  was  unknown  to  the  common  law,  and  exists  in  states 
which  have  inherited  that  system  of  jurisprudence  only  by 
virtue  of  some  statute.^  In  applying  statutes  of  this  kind, 
courts  have  uniformly  held  that  the  statutory  mode  prescribed 
is  the  measure  of  their  power,  and  that  an  adoption  is  invalid 
unless  made  in  pursuance  of  the  essential  requirements  of  the 
statute. - 

Jurisdiction  of  Orphans'  Court. 

It  shall  ])e  lawful  for  any  person,  of  full  age,  not  married, 
or  any  husband,  with  his  wife's  consent,  or  any  wife,  with  her 
husband's  consent,  or  any  husband  and  wife  jointly,  to  petition 
the  orphans'  court  of  the  county  wherein  any  minor  child  may 
reside,  or  of  the  county  wherein  any  such  petitioner  may  reside, 
for  permission  to  adopt  such  minor  child,  and  for  a  change 
of  name  of  such  child.' 


iHillers   v.   Taylor.   69  A.,   715,  McCormick,    108    Wis..    234.      84 

(Md.).    Appeal  of  Woodward,  70  N.   W.,    148.     Furgeson   v.  Jones, 

A.,  453.  (Conn.),     i  Cyc.  p.  917.  17  Or..  204.     20  Pac.  842.    Watts 

^Matter  of  Thome's   Will,    155  v.  Dull,  184  111.,  86.    56  N.  E.,  303. 

N.  Y.,  140.     49  N.  E.,  661.     In  re  Taber  v.   Douglass.    loi   Me..  363. 

Johnson,    98    Cal.,    531.     33    Pac,  64    Ad.     Rep.,     653       Appeal     of 

460.    .Shearer  v.  Weaver,  56  Iowa,  Woodward,  70  At!.  Rep.,  453. 
578.    9  N.  W.,  907.    Long  V.  Hew-  ^p    l    1902,   p.   259,    sec.    i,   a.i 

itt,  44  Iowa,  363.     In  re  Humph-  amended  by  P.  L.  1905,  p.  272.     2 

rey,  137  Mass.,  84.    In  re  Estate  of  Comp.   Stat.,  2807.   sec.    13. 


■97 


7g8  Probate  Law  and  Practice. 

Consent  of  Parents. 

The  written  consent  of  the  parents  of  such  child  to  such 
adoption  must  be  obtained  and  presented  with  the  petition, 
luit  if  either  parent  be  dead,  unknown,  insane  or  habitually 
intemperate,  or  shall  have  abandoned  the  child,  or  shall  have 
been  divorced  from  the  father  or  mother  of  said  child  because 
of  his  or  her  adultery  or  desertion,  then  the  consent  of  the 
other  parent  shall  be  sufficient.* 

What  Constitutes  Abandonment. 

The  statutory  notion  of  abandonment  does  not  necessarily 
imply  that  the  parent  has  deserted  the  child,  or  has  ceased 
to  feel  any  concern  for  its  interests.  It  may  fairly  import 
any  conduct  on  the  part  of  the  parent  which  evinces  a  settled 
purpose  to  forego  all  parental  duties  and  relinquish  all  parental 
claims  to  the  child,  even  though  there  is  no  actual  abandon- 
ment.^ It  does  not  follow  that  the  purpose  may  not  be  repented 
of,  and.  in  proper  cases,  all  parental  rights  again  acquired,  in- 
cluding this  statutory  right  of  preventing  adoption  by  with- 
holding consent ;  but,  when  once  the  abandonment  is  shown 
to  have  existed,  it  becomes  a  judicial  question  whether  it  really 
has  been  or  can  be  terminated,  consistently  with  the  welfare 
of  the  child.  When,  in  pursuance  perhaps  of  the  implied 
al:)andonment,  new  ties  have  been  formed,  and  a  new  station 
in  life  has  l^een  taken  by  the  child,  it  might  be  unjust,  that, 
solely  l)ecause  of  the  parents'  caprice,  legal  sanction  should  be 
refused  to  the  new  conditions.  Under  such  conditions,  a  court 
might  lawfully  deem  the  abandonment  irrevocable,  so  far  as 
the  claims  of  the  parent  are  concerned.''  Thus  where  a  child 
was  permitted  by  its  parents  to  live  with  others  from  the  time 
it  was  less  than  one  year  old  until  it  reached  the  age  of  ten 
years,  and  such  child  was  nurtured,  maintained  and  educated, 
both  secularly  and  religiously,  as  the  daughter  of  the  persons 
with  whom  it  was  living,  in  a  manner  warranted  by  their  con- 
siderable wealth,  but  far  beyond  that  of  its  parents,  and  such 

*P.   L.    1902,   p.   259,    sec.    I,    as  503.     W'inans  v.  Luppie,  47  N.   T. 

amended  by  P.  L.  1905,  p.  272.     2  Eq..  302. 

Comp.  Sta.,  p.  2807,  sec.  13.  "^Winans    v.    Luppie,    47    N.    J. 

■'■Wood  V.  Wood,  TJ  N.  J.  Eq.,  Eq..  302. 


Adoption  of  ^Minors.  799 

child  received  a  new  christian  name,  as  well  as  the  name  of  the 
persons  with  whom  it  was  li\ing.  it  was  held  that  there  was 
an  implied  abandonment  of  the  child  by  its  parents;'  and  so 
where  a  girl  six  years  old  was  placed  by  her  father,  with  her 
mother's  consent,  in  the  care  of  her  aunts,  with  the  intention 
of  having  her  brought  up  and  educated  by  them,  and  she  had  a 
good  home  and  loved  her  aunts,  and  was  loved  by  them  and 
brought  up  in  a  much  better  condition  of  life  than  was  within 
the  power  of  her  parents  to  offer  and  the  conduct  of  her 
father  and  mother  and  of  the  mother  after  the  father's  death, 
during  all  the  time  the  child  was  with  her  aunts,  showed  their 
confidence  in  the  aunts,  and  their  belief  that  it  was  for  the 
child's  welfare  to  remain  there,  and  the  mother  made  no  ob- 
jection to  the  method  of  the  child's  bringing  up,  but  after  the 
father's  death  forcibly  seized  the  child  and  took  her  away, 
apparently  to  make  use  of  her  and  to  have  her  "rough  it"  at 
home  with  her  younger  sisters,  it  was  held,  upon  an  application 
b}-  the  aunts  for  the  adoption  of  the  child,  that  there  had  been 
a  constructive  abandonment  of  the  child  by  the  mother  within 
the  meaning  of  the  act.* 

Where,  however,  for  three  years  after  the  birth  of  an  illegiti- 
mate child  the  mother  maintained  it  at  the  home  of  another 
woman,  when,  an  abandonment  becoming  necessary,  the  mother 
inserted  an  advertisement  offering  the  child  for  adoption, 
stating  that  there  would  be  a  complete  surrender,  and  that  the 
child  might  be  seen  at  the  home  where  it  was  being  maintained, 
it  being  understood  between  the  mother  and  the  one  caring  for 
the  child  that  the  mother  should  be  notified  if  any  one  cared  to 
take  it,  and  a  woman  called  and  took  the  child,  but  did  not 
adopt  it.  the  mother  not  ])eing  notified  of  the  taking  at  the 
time,  nor  though  she  made  efforts,  able  to  discover  the  child's 
whereabouts  for  six  years,  it  was  held  that  the  mother  had  not 
forfeited  her  rijjfht  to  the  custodv  of  the  child.'' 


'Winans  v.  Luppie,  47  N.  J. 
Eq.,  302.  See.  however.  State  v. 
Baldwin,  5  N.  J.  Eq.,  454. 


^Wood    V.   \V'or)(l 

77   X.    T.   Eq. 

593- 

■'Ifesselman    v.    1 

iaas,    71    N.    J 

Eq.,  68g. 


52 


8oo  Probate  Law  and  Practice. 

Proceedings  Where  Consent  of  Parents  Cannot  be  Obtained. 

If  both  parents  be  dead,  unknown,  insane  or  habitually  in- 
temperate, or  shall  have  abandoned  the  child,  then  the  written 
consent  to  such  adoption  must  be  obtained  from  the  legal  guard- 
ian of  such  child,  if  any  there  be,  or  if  there  be  no  legal  guard- 
ian, from  some  discreet  and  suitable  person  appointed  by  the 
court  to  be  next  friend  of  such  child ;  provided,  hozvever,  if  the 
parent  or  parents  shall  have  granted  the  custody  and  control 
of  such  child  for  the  full  term  of  its  minority  to  any  orphan- 
age or  children's  home,  or  society  incorporated  under  the  laws 
of  this  state  to  care  for  children,  or  if  such  orphange  or 
children's  home  or  society  shall  have  otherwise  legally  acquired 
the  custody  and  control  of  such  child,  then  consent  to  such 
adoption  must  be  obtained  from  such  orphanage  or  children's 
home  or  society,  which  consent  shall  be  in  writing  and  under 
the  common  seal  of  the  orphanage  or  children's  home  or 
society  aforesaid,  and  the  hands  of  the  president  and  secre- 
tary thereof;  and  protnded  further,  if  the  child  be  above  the 
age  of  fourteen  years,  its  written  consent  to  the  adoption  and 
change  of  name  must  be  obtained.'" 

All  Consents  to  be  Acknowledged. 

Every  consent  to  be  given  as  aforesaid  must  be  acknowl- 
edged or  proved  as  deeds  of  land  are  required  to  be.'' 

Foreign  Children's  Society  Cannot  Consent. 

It  is  to  be  observed  that  the  character  of  an  "orphanage," 
"children's  home,"  or  "society  to  care  for  children,"  which 
may  consent  to  the  adoption  of  a  child,  is  limited  by  the  statute 
to  those  "incorporated  under  the  laws  of  this  state."  Where, 
therefore,  a  society  for  the  care  of  children,  incorporated  under 
the  laws  of  another  state,  has  acquired  the  custody  and  control 
of  a  minor,  a  petition  for  whose  adoption  is  pending  in  an 
orphans'  court  in  this  state,  that  court  can  only  acquire  juris- 
diction in  one  of  the  other  two  methods  prescribed  by  the  act, 

lop.  L.   igo2,  p.  252,  sec.   I.  as  "P.  L.   1902.  p.  259,   sec.   i,  as 

amended  by  P.  L.  1905,  p.  272.     2      amended  by  P.  L.  1905.  p.  272.    2 
Comp.  vStat..  p.  2807,  sec.  13.  Comp.  Stat.,  p.  2807,  sec.  13. 


Aix)PTiox  OF  Minors.  8oi 

i.  e.,  by  the  consent  of  the  parents,  or  by  proof  of  the  abandon- 
ment of  the  child  by  the  parents. 

Who  May  Petition. 

The  statute  provides  that  the  person  petitioning  for  the 
adoption  of  any  minor  shall  be  at  least  ten  years  older  than 
the  child  sought  to  be  adopted  ;  no  adoption  heretofore  granted 
in  accordance  with  the  ]:)rovisions  of  this  act  shall  be  deemed 
void  or  voidable  because  the  petitioner  was  not  of  the  age 
required  by  this  act ;  but  such  adoption  shall  be  held  in  all 
respects  valid  and  lawful :  ]:)rovided  such  ado])tion  was  other- 
wise made  agreeably  to  the  proxisions  of  this  act.^- 

What  Petition  is  to  Recite. 

Such  petition  shall  specify  the  name,  age  and  ])lace  of  resi- 
dence of  the  petitioner  and  of  the  child,  and  the  name  by 
which  the  child  shall  be  known  ;  whether  such  child  be  pos- 
sessed of  any  property,  and  the  full  description  of  the  prop- 
erty, if  any:  whether  such  child  has  either  father  or  mother, 
or  both,  living;  in  case  he,  she  or  they  are  alive,  then  the 
name  or  names  and  place  of  residence  of  such  father  and 
mother  shall  be  given,  unless  proven  to  be  unknown  to  the 
petitioner.'" 

Petition  to  be  Verified. 

The  act  requires  that  all  petitions  for  the  adoption  of  minors 
shall  be  duly  verified.'* 

Court  to  Fix  Day  for  Hearing. 

Upon  the  presentation  of  such  petition  to  the  court,  the 
same  shall  be  filed  with  the  clerk  of  said  court,  and  the  court 
shall  appoint  a  day  for  the  hearing  of  said  petition  and  the 
examination,  under  oath,  of  the  parties  in  interest,  not  less  than 
ten  nor  more  than  thirty  days  from  the  filing  of  the  petition  ; 
and  it  shall  be  at  the  (jption  of  the  court  to  adjourn  the  hearing 

^-P.  L.   1902,  p.  259.  sec.  2.     2  34P.  L.   igo2,  p.  259.  sec.  2.     2 

Comp.  Stat.,  p.  2807,  sec.  14.  Comp.  vStat.,  2807.  sec.  14. 

'^P.  L.   1902,  p.  259,  sec.  2.     2 
Comp.  Stat.,  2807,  sec.  14. 


8o2  Probate  Law  and  Practice. 

of  said  petition  or  the  examination  of  the  parties  in  interes; 
from  time  to  time,  as  the  nature  of  the  case  may  require. ^^ 

When  Notice  of  Petition  is  Necessary. 

If  it  shall  be  necessary,  under  the  provisions  of  this  act,  that 
a  discreet  and  suitable  person  shall  be  appointed  as  next  friend 
to  the  child  sought  to  be  adopted,  then  and  in  that  case  the 
court  shall  order  a  notice  of  the  petition,  and  of  the  time  and 
])]ace  when  and  where  the  appointment  of  next  friend  will  be 
made,  to  be  published  in  two  newspapers  circulating  in  the 
count^•  where  said  court  is  located,  once  a  week  for  three  weeks 
successively ;  and  at  the  time  and  place  so  designated,  and 
upon  due  proof  of  the  publication  of  such  notice,  the  court  shall 
make  such  appointment,  and  shall  thereupon  assign  a  day  for 
the  hearing  of  said  petition  and  examination  of  the  parties  in 
interest,  not  less  than  ten  nor  more  than  thirty  days  from  the 
time  of  appointing  the  next  friend  :  provided,  the  said  court 
may,  if  the  court  shall  deem  it  for  the  interest  of  said  child, 
omit  to  make  the  said  order  for  a  notice  of  the  petition  and 
of  the  time  and  place  when  and  where  the  appointment  of 
next  friend  will  be  made,  and  may  immediately  appoint  a  next 
friend  for  said  child,  and  assign  a  day  for  the  hearing  of  said 
petition  and  examination  of  the  parties  in  interest  as  is  herein 
provided. ^"^ 

Hearing. 

Upon  the  day  so  appointed,  the  court  shall  proceed  to  a  full 
hearing  of  the  petition  and  the  examination  of  the  parties  in 
interest,  under  oath,  with  the  right  of  adjourning  tlie  hearing 
and  examination  from  time  to  time  as  the  nature  of  the  case 
may  require.^' 

Upon  the  hearing,  both  of  the  petitioners  are  called  to  testify 
in  open  court,  and  to  substantiate  all  of  the  allegations  of  the 
petition.  If  the  parent  or  parents  of  the  child  have  consented 
to  its  adoption,  the  common  practice  is  to  call  them  as  witnesses 
and  prove  their  consent  l)v  their  testimonv.     If  an  abandon- 

''P.   L.   1902,  p.  259,   sec.   3.     2  I'^'P.  L.    1902.  p.   259,   sec.  3.     2 

Comp.  Stat..  2S08.  sec.  15.  Comp.  Stat.,  2808,  sec.  15. 

i"P.  L.    1902.  p.  259,   sec.  3.     2 

Comp.  Stat..  2808.  sec.  15. 


Adoption  of  Minors.  803 

ment  of  the  child  is  alleged,  such  abandonment  must  be  proved 
by  the  testimony  of  competent  witnesses  to  the  satisfaction  of 
the  court. 

When  Court  May  Decree  Adoption — Recitals  of  Decree. 

If  the  court,  from  the  testimony,  shall  be  of  the  opinion 
that  the  facts  stated  in  the  petition  are  true,  and  that  the  pe- 
titioner is  of  good  moral  character  and  of  reputable  standing  in 
the  community,  and  of  ability  to  properly  maintain  and  educate 
the  child  sought  to  be  adopted,  having  reference  to  the  con- 
dition in  life  of  the  child's  parents,  and  that  the  best  inter- 
ests of  the  child  would  be  promoted  by  such  adoption,  then  the 
court  shall  make  a  decree  reciting  the  facts  at  length,  and  the 
name  by  which  the  child  shall  hereafter  be  known,  declaring 
and  adjudging  that  from  the  date  of  such  decree  the  rights, 
duties,- privileges  and  relations  theretofore  existing  between 
the  child  and  his  parent  or  parents  shall  be  in  all  respects  at 
an  end,  excepting  the  right  of  inheritance ;  and  that  the  rights, 
duties,  privileges  and  relations  between  the  child  and  his  parent 
or  parents  by  adoption  shall  thenceforth  in  all  respects  be  the 
same,  including  the  right  of  inheritance,  as  if  the  child  had 
been  born  to  such  adopted  parent  or  parents  in  lawful  wed- 
lock, except  only  as  otherwise  provided  in  this  act."' 

Proceedings  to  be  Recorded. 

The  petition,  decree,  testimony  and  proceedings  shall  ))& 
recorded  at  length  in  a  book  kept  for  that  purpose  and  properly 
indexed ;  but  testimony  taken  orally  or  without  subscription 
by  the  witnesses  need  not  be  recorded ;  said  book  shall  become 
part  of  the  records  of  the  surrogate's  ofifice  of  the  county  where- 
in the  said  court  is  located,  and  the  surrogate  for  recording 
the  same  shall  receive  the  same  fees  as  for  recording  a  will.''-' 

EFFECT    OF    ADOPTION. 
On  Parents  of  Child. 

Upon  the  entry  of  such  decree  of  adoption  the  j^arents  of 
the  child,  if  living,  shall  be  divested  of  all  legal  rights  and 

^^P.   L.    1902,   p.  259,   sec.  3.     2  '-'P.    I,.    1902,   p.   259,   sec.   4,   2 

Comp.  Stat.,  2808,  sec.  15.  Comp.    vStat.,   p.  2808,   sec.    16,   as 

amended  by  P.  L.  191^,  p.  53. 


8o4  Tkobate  Law  and  Practice. 

obligations  due  from  them  to  the  child,  or  from  the  child  to 
them;  and  the  child  shall  be  free  from  all  legal  obligations 
of  obedience  or  otherwise  to  the  parents.-" 

On  Adopting  Parents. 

The  adopting  parent  or  parents  of  the  child  shall  be  invested 
with  every  legal  right  in  respect  to  obedience  and  maintenance 
on  the  part  of  the- child  as  if  said  child  had  been  born  to  them 
in  lawful  wedlock.-^ 

This  provision  of  the  act  does  not  confer  upon  the  adopting 
parent  any  right  to  inherit  the  estate  of  an  adopted  child,  and 
such  parent  is  not  entitled  to  administration  upon  the  estate 
of  a  deceased  adopted  child ;  nor  can  he,  if  appointed  adminis- 
trator, maintain  an  action  for  damages  for  the  death  of  such 
adopted  child  caused  by  the  negligence  of  another. -- 

Nature  of  Relationship. 

An  adopting  parent  stands  /;;  loco  parentis  to  his  adopted 
child ;  he  is  liable  for  its  support,  education  and  maintenance, 
and  is  entitled  to  its  services  and  earnings.  It  is  scarcely 
necessary  to  add  that  an  adopting  parent  is  not  entitled  to 
compensation  for  the  support  of  the  adopted  child.-" 

Effect  of  Marriage  of  Adopting  Parent. 

Where  a  parent  has  procured  a  divorce,  or  a  surviving  parent, 
having  lawful  custody  of  a  child,  lawfully  marries  again,  or 
where  an  adult  unmarried  person  who  has  become  a  foster 
parent  and  has  lawful  custody  of  a  child,  marries,  and  such 
parent  or  foster  parent  consents  that  the  person  who  thus  be- 
comes the  step-father  or  the  step-mother  of  such  child  may 
adopt  such  child,  such  parent  or  such  foster  parent  so  con- 
senting shall  not  thereby  be  relieved  of  any  of  his  or  her 
parental  duties  toward,  or  be  deprived  of  any  of  his  or  her 

-'-'P.  L.   1902,  p.  259,   sec.  4.  2  22fjeidecamp  v.  Jersey  City  &c. 

Comp.   Star.,   p.   2808,   sec.    16,  as  R.  R.  Co.,  69  N,  J.  L.,  284. 

amended  by  P.  L.  1912,  p.  53.  ssBrown  v.  Welsh,  27  N.  J.  Eq.. 

-'P.   L.    1902,   p.  259,   sec.  4.  2  429. 

Comp.   Stat.,   p.   2808,   sec.    16,  as 
amended  by  P.  L.  1912,  p.  53. 


Adoption  of  Minors.  805 

rights  over  said  child,  or  to  his  property  by  descent  or  succes- 
sion.'* 

Child's  Right  of  Inheritance. 

The  child  shall  be  invested  with  every  legal  right,  privilege, 
obligation  and  relation  in  respect  to  education,  maintenance  and 
the  rights  of  inheritance  to  real  estate,  or  to  the  distribution  of 
personal  estate  on  the  death  of  such  adopting  parent  or  parents 
as  if  born  to  them  in  lawful  wedlock ;  provided,  said  child  shall 
not  be  capable  of  taking  property  expressly  limited  to  the  heirs 
of  the  body  of  the  adopting  parent  or  parents,  nor  property 
coming  from  the  collateral  kindred  of  such  adopting  parent  or 
parents  by  right  of  representation  :  and  proi^ldcd  also,  on  the 
death  of  the  adopting  parent  or  parents  and  the  subsequent 
death  of  the  child  so  adopted,  without  issue,  the  property  of 
such  adopting  deceased  parent  or  parents  shall  descend  to  and 
be  distributed  among  the  next  of  kin  of  said  parent  or  parents 
and  not  to  the  next  of  kin  of  the  adopted  child ;  and  provided 
also,  if  such  adopting  parent  or  parents  shall  have  other  child 
or  children,  then,  and  in  that  case  the  children  by  birth  and 
by  adoption  shall  respectively,  inherit  from  and  through  each 
other  as  if  all  had  been  children  of  the  same  parents  born  in 
lawful  wedlock.-^ 

Where  property  is  devised  to  testator's  son  for  life,  with 
remainder  to  his  children,  an  adopted  son  of  the  life-tenant 
is  not  entitled  to  share  in  such  remainder.  Section  4  of  the 
statute,"''  provides  that  the  child  shall  be  invested  with  the 
■'rights  of  inheritance  of  real  estate,  or  to  the  distribution  of 
personal  estate,  on  the  death  of  such  adopting  parents,  as  if 
born  to  them  in  lawful  wedlock."  Section  3  of  the  act,-^  pro- 
vides that  "the  rights,  duties,  privileges  and  relations  between 
the  child  and  his  parent  or  parents  by  adoption  shall  thence- 
forth in  all  respects  be  the  same,  including  the  right  of  inherit- 
ance, as  if  the  child  had  been  born  to  such  adopted  parent 
or  parents  in  lawful  wedlock."    It  is  apparent  that  the  statute 

•*'P.  L.   1902,  p.  259,  sec.  4.  2  Comp.   Stat.,   p.   2808,   sec.    16,   as 

Comp.    Stat.,   p.  2808,   sec.    16,  as  amended  by  P.  L.  191Z,  p.  53. 

amended  by  P.  L.  1912,  p.  53.  -''This  page,  supra. 

-■"'P.   L.    1902.  p.  259,  sec.  4.  2  27p^ge  803,  supra. 


8o6  Probate  Law  and  Practice. 

relates  only  to  the  right  of  inheritance  as  between  the  child 
and  his  adopting  parent,  and  that  an  adopted  child  is  not  in- 
cluded within  the  provisions  of  a  will  of  a  third  person  pro- 
viding for  the  children  of  a  legatee  therein  named.-® 

Bequest  to  Adopting  Father  Under  Will  of  Another. 

The  statute  invests  an  adopted  child  with  the  right  of  in- 
heritance from  the  adopting  parent,  but  does  not  create  in  such 
child  capacity  to  take  as  next  of  kin  or  heir  at  law  the  share 
which  the  deceased  adopting  parent  would  have  taken,  if  alive, 
under  the  will  of  another  person. '*^^ 

When  Adopted  in  Foreign  State. 

If  a  child  as  legally  adopted  in  a  foreign  state  while  the 
adopting  parent  is  domiciled  there,  and  such  parent  thereafter 
removes  his  domicile  to  this  state  and  dies  here,  the  courts  of 
this  state  will  order  that  the  estate  of  such  adopting  parent  be 
distributed  as  though  such  adoption  proceedings  were  had  in 
this  state.  One  who  has  legally  adopted  a  child  in  the  state 
of  his  domicile  will  not  be  permitted  to  shake  ofif  by  a  change 
of  domicile  the  relation  created  by  the  adoption.^" 

Costs  to  be  Paid  by  Petitioner. 

All  the  expense  of  the  aforesaid  proceedings  shall  be  borne 
by  the  petitioner.''^ 

-^Eureka  Life  Ins.  Co.  v.  Geis,  Rep.,    453.      Ross    v.     Ross,     129 

88  Atl.  Rep.,  158  (M'd.).  Mass.,  243.    Van  Matre  v.  Sankey, 

29Stout  V.   Cook,  t;  N.  J.  Eq.,  148  III.,  536. 

153.  3ip_  L    1902,  p.  259,  sec.  5.     2 

30Appeal  of  Woodward.  70  Atl.  Comp.  Stat.,  2809,  sec.  17. 


PART  VJ. 


A  Summary  of  Proceedings  Before  the  Orphans' 
Court  and  Surrogate. 


CHAPTER  XXXVIII. 

OUTLINE  OF  PROCEDURE. 

Scope  of  Chapter. 

This  chapter  contains  a  brief  abstract  of  various  proceedings 
before  the  Surrogate  and  Orphans'  Court.  Xo  attempt  has 
been  made  to  give  more  than  a  bare  outHne  of  the  procedure 
nor  to  set  forth  precedents  or  to  cite  authorities  :  for  these  the 
appropriate  chapters  in  the  body  of  this  work  should  be  con- 
sulted. 

^  PROBATE  OF  WILLS. 

Petition  for  Probate. 

A  will  cannot  be  offered  for  probate  until  ten  full  days  have 
elapsed  after  the  death  of  the  testator.  This  means  the  eleventh 
day  after  the  testator's  death. 

The  first  proceeding  in  the  petition  for  probate,  (see  form  i, 
infra)  which  must  be  verified  by  the  affidavit  of  the  applicant, 
taken  before  any  official  authorized  to  administer  an  oath. 

Depositions  of  Witnesses. 

If  the  will  has  a  perfect  attestation  clause  the  testimony 
of  only  one  witness  is  necessary.  If,  however,  the  will  has  no 
attestation  clause,  or  the  same  is  defective  in  any  particular,  or 
in  case  the  will  is  signed  by  the  testator  with  a  mark,  it  is 
necessary  to  produce  both  witnesses.  Since  in  most  states  a 
will  is  required  to  be  proven  by  two  witnesses,  whenever  the 
testator  died  seized  of  land  in  another  state  it  is  advisable  to 
take  the  proofs  of  both  witnesses  and  thus  avoid  the  expense  of 
opening  the  probate  to  take  the  testimony  of  the  secontl  witness 
when  it  is  desired  to  transfer  the  lands  in  the  foreign  state. 

If  both  witnesses  are  dead,  and  the  will  has  a  perfect  attesta- 
tion clause,  it  may  be  proved  by  producing  proof  of  the  signa- 
tures of  the  testator  and  of  both  witnesses.  In  a  case,  where  one 
witness  is  living,  and  it  is  necessary,  by  reason  either  of  testator 

809 


8io  Prouativ  Law  and  Practice. 

having  owned  lands  in  another  state  or  of  a  defective  attesta- 
tion clause,  to  prove  the  will  by  both  witnesses,  then  the  proof 
of  the  deceased  witness  is  supi)lied  by  proof  of  the  genuine- 
ness of  his  signature.  Depositions  of  witnesses  and  proofs  of 
the  signatures  of  deceased  witnesses  must  he  taken  l)efore  the 
Surrogate  or  his  deputy. 

If  either  of  the  witnesses  whose  testimony  is  required  resides 
out  of  the  State  of  New  Jersey,  the  Surrogate,  upon  a  petition 
filed  with  him  for  that  purpose,  will  make  an  order  directing 
that  a  commission  issue  to  the  judge  of  a  court  of  law,  mayor, 
or  other  chief  magistrate  of  the  place  where  the  witness  resides, 
authorizing  him  to  take  the  deposition  of  such  witness  ;  or  the 
Surrogate  may,  by  order,  deputize  any  attorney,  counsellor  at 
law,  master  in  chancery,  notary  or  commissioner  of  deeds  of 
New  Jersey  to  take  such  deposition. 

Qualification  o£  Executor. 

After  a  will  has  been  proved  by  the  depositions  of  witnesses, 
the  executor  is  required  to  take  an  affidavit  to  the  effect  that 
he  will  well  and  truly  administer  the  estate  according  to  law, 
which  affidavit  must  be  taken  before  the  Surrogate  or  Deputy- 
Surrogate. 

Bond  of  Executor. 

An  executor  is  not  required  to  give  a  bond  for  the  faithful 
performance  of  his  official  duties  unless  expressly  required  by 
the  will  so  to  do,  or  unless  he  is  a  non-resident  and  the  will 
does  not  waive  bonds,  in  which  cases  a  bond  is  required. 

When  a  bond  is  required,  its  penalty  will  usually  be  fixed  in 
double  the  amount  of  the  personal  property  of  the  testator, 
except  in  a  case  where  the  will  confers  upon  the  executors  a 
power  of  sale,  in  which  case  the  penalty  of  the  bond  should  be 
in  double  the  amount  of  testator's  reaj  and  personal  property. 

Two  sureties  are  required,  each  of  whom  must  qualify  in 
the  amount  of  the  penalty  of  the  bond.  Affidavits  of  qualifi- 
cation of  sureties  may  be  taken  before  any  person  authorized  to 
administer  an  oath.  Under  certain  circumstances,  as  will  be 
found  fully  explained  in  the  chapter  devoted  to  the  subject  of 
"Bonds  of  Executors,  Administrators,  Guardians  and  Trus- 
tees," the  penalty  of  the  bond  may  be  reduced. 


Probatk  of  Wills.  Si  i 

Non-Resident  Executors. 

A  non-resident  executor  is,  as  has  been  seen,  required  to 
give  a  bond  unless  the  will  waives  bonds.  In  addition  thereto, 
he  is  required  in  every  case  to  give  to  the  Surrogate  a  power 
of  attorney  to  acknowledge  service  of  process  issued  in  any 
cause  to  which  he  as  such  executor  is  made  a  party. 

Where  Doubts  Arise  Upon  the  Face  of  the  Wilh 

Where  the  will  presented  for  probate  is  mutilated,  or  con- 
tains interlineations  or  erasures  which  change  the  terms  of  the 
will,  and  which  are  not  noted  in  the  attestation  clause  to  have 
l)een  made  prior  to  the  execution  of  the  paper,  a  doubt  is  said 
to  arise  upon  the  face  of  the  will :  the  Surrogate  is  deprived 
of  jurisdiction  to  probate  the  will,  and  must  issue  citations  to 
all  persons  concerned  to  appear  in  the  Orphans'  Court,  where 
the  will  will  be  probated. 

In  most  cases  of  this  character,  it  is  only  necessary  to  pro- 
duce before  the  court  the  testimony  of  both  subscribing  wit- 
nesses, and  also  such  testimony  as  may  be  available  tending  to 
explain  the  mutilation  of  the  will,  or  the  interlineations  and 
erasures  appearing  thereon.  Any  person  cited,  may,  however, 
upon  the  return  of  the  citation,  contest  the  probate.  No  formal 
action  to  contest  the  probate  of  a  will  under  such  circumstances 
is  necessary,  beyond  the  simple  statement  of  the  party  contest- 
ing, or  his  proctor,  after  which  the  matter  is  heard  in  the  same 
manner  as  though  a  caveat  had  been  filed  or  an  appeal  taken 
from  the  ])robate  of  the  will. 

Probate  of  After  Discovered  Wills. 

If  after  the  probate  of  a  will  a  later  will  of  the  testator  is 
discovered,  or  if  after  the  grant  of  letters  of  administration  a 
will  is  discovered,  the  practice  is  to  hie  a  i)etition  with  the 
Surrogate  for  the  probate  of  such  later  will,  which  petition 
follows  the  form  of  the  ordinary  petition  for  ])rol)ate  of  a  will, 
wath  the  addition  thereto  of  an  allegation  setting  forth  the  date 
of  the  grant  of  administration  or  probate  of  the  prior  will,  and 
the  fact  that  thereafter  the  will  offered  for  ])r()ha(e  was  dis- 
covered; and  in  the  case  of  an  applicatif)n  for  the  probate  of 
a   later  will,   the   petition   should    recite   the   dati-   of   the   will 


8i2  Pkdbate;  Law  and  Practice. 

admitted  to  probate  Ijy  the  Surrogate,  and  the  date  of  the  after- 
discovered  will. 

Upon  the  tiling  of  such  petition  with  the  Surrogate,  citations 
are  issued  to  all  persons  interested,  returnable  to  the  orphans' 
court,  to  show  cause  why  probate  of  such  will  should  not  be 
granted. 

Upon  the  return  of  such  citations,  any  person  so  cited  may 
contest  such  will  offered  for  probate,  in  which  case  the  matter 
proceeds  like  any  other  contested  case.  If,  however,  there  is 
no  contest,  the  will  is  proven  in  open  court  by  taking  the  testi- 
mony of  both  attesting  witnesses. 

If  the  will  so  offered  is  admitted  to  probate,  the  court,  in 
the  decree  for  probate,  will  require  the  administrator  or  prior 
executor  to  make  final  settlement  of  his  accounts,  and  upon 
the  passing  of  such  account,  the  court  will  make  such  order 
in  relation  to  his  commissions  as  is  just  and  equitable. 

Proceedings  for  Discovery  of  Will. 

iliis  proceeding  is  used  in  a  case  where  a  person  in  interest 
believes  that  any  person  or  corporation  has  in  his  or  its  posses* 
sion,  or  has  knowledge  of  the  existence  or  whereabouts  of  any 
will  of  a  decedent,  and  refuses  to  surrender  the  same  for 
probate. 

This  proceeding  is  initiated  by  a  petition  to  the  Orphans' 
Court  (see  form  131  infra)  which  is  required  to  be  verified  by 
the  afffdavit  of  the  petitioner,  before  any  offfcer  authorized  to 
administer  an  oath. 

Upon  the  presentation  of  such  petition,  the  court  will  make 
an  order  requiring  the  person  in  whose  possession  such  will 
is  alleged  to  be,  or  who  is  alleged  to  have  knowledge  of  its 
existence  or  whereabouts,  to  appear  before  the  court  on  a  day 
named  in  the  order,  to  make  discovery  as  to  his  possession  of 
or  knowledge  of  the  existence  of  such  will. 

Upon  the  return  of  the  order  for  discovery,  the  person  or 
persons  to  whom  the  same  is  directed  are  required  to  submit 
themselves  to  examination  by  the  petitioner ;  in  this  exami- 
nation the  latter  is  allowed  all  of  the  privileges  of  cross-exami- 
nation, the  entire  proceeding  being  in  the  nature  of  a  discovery 
in  the  Court  of  Chancery.     The  petitioner  may  also  call  other 


Probate  of  Wills.  813 

witnesses  to  testify  in  support  of  the  allegations  of  his  petition. 
The  court,  at  the  conclusion  of  the  testimony,  may  order  any 
person,  whom  it  may  find  to  have  in  his  possession  any  such 
will,  to  lodge  the  same  with  the  Surrogate  of  that  county  for 
probate,  and  may  compel  obedience  to  such  order  or  decree  by 
the  same  process  and  in  the  same  manner  as  orders  or  decrees 
of  the  Court  of  Chancery  are  enforced. 


CONTESTED  PROBATE. 


Methods  of  Raising  Contests. 

The  validity  of  a  will  may  be  contested  either  by  filing  a 
caveat  with  the  Surrogate  before  the  probate  of  the  wall,  or 
after  probate,  by  taking  an  appeal  from  the  decree  of  the 
Surrogate  admitting  the  will  to  probate,  which  appeal,  if  made 
])y  a  resident  of  New  Jersey,  must  be  taken  within  three  months 
or  in  the  case  of  a  non-resident,  within  six  months  from  the 
entry  of  the  decree  of  probate. 

Upon  the  ofifering  of  the  will  for  probate  after  the  filing  of 
a  caveat,  the  Surrogate  issues  citations  to  the  caveators ;  in  the 
case  of  an  appeal,  he  issues  citations  to  all  of  the  next  of  kin 
and  heirs  at  law  of  the  testator,  and  all  the  legatees  and  de- 
visees named  in  the  will. 

Proceedings  in  Orphans'  Court. 

In  Essex  County  and  in  others  of  the  more  populous  counties, 
citations  are  made  returnable  upon  a  motion  day,  at  which  time 
the  court,  upon  a]j]jlication  for  that  ])urpose  will  fix  a  dav  for 
hearing. 

Hearing. 

The  proceedings  in  a  disputed  will  contest  before  the  Or- 
phans' Court  are  the  same  whether  the  contest  is  originated  by 
a  caveat  or  an  appeal.  The  proponent,  in  either  case,  is  the 
moving  party,  and  in  the  first  instance  examines  the  attesting 


8i4  Probate;  Law  and  Practice. 

witnesses  as  to  the  execution  of  the  will,  after  which  the 
caveator  or  appellant,  as  the  case  may  be,  has  the  privilege  of 
cross-examination.  The  court  usually  requires  the  production 
of  both  witnesses  or  a  satisfactory  explanation  of  the  absence 
of  one  of  them. 

The  proponent,  after  introducing  the  testimony  of  the  sub- 
scribing witnesses,  rests,  and  if  the  testimony  establishes  that 
the  will  was  executed  in  accordance  with  the  statute,  it  then 
becomes  the  duty  of  the  caveator  or  appellant  as  the  case  may 
be,  to  produce  witnesses  in  support  of  his  contentions,  which 
witnesses  are  subject  to  cross-examination  by  the  proponent. 
After  the  contestant  has  rested  his  case,  the  proponent  has  the 
privilege  of  introducing  evidence  in  rebuttal. 


FOREIGN   WILLS. 


In  General. 

A  Surrogate  has  no  jurisdiction  to  admit  to  probate  an 
original  will  of  a  non-resident  of  New  Jersey,  even  though  such 
decedent  leave  assets  within  the  Surrogate's  county.  In  case 
probate  of  a  will  of  a  non-resident  is  desired  in  this  state  for 
any  purpose,  the  will  must  first  be  duly  proved  at  the  domicile 
of  the  testator,  after  which  an  exemplified  copy  of  the  record 
of  the  foreign  probate  is  obtained  and  filed  in  the  office  of  the 
Surrogate.  The  subsequent  proceedings  are  identical  with  the 
probate  of  an  original  will,  except  that  it  is  unnecessary  to  take 
the  depositions  of  the  subscribing  witnesses,  if  it  appears  from 
the  witness  proofs  annexed  to  the  foreign  record  of  probate 
that  the  will  was  executed  in  accordance  with  the  laws  of  this 
state.  If  it  does  not  so  appear,  then  it  becomes  necessary  to 
take  the  depositions  of  the  subscribing  witnesses,  as  in  the  case 
of  the  will  of  a  resident  of  New  Tersey. 


Letters  OF  Administration.  815 

LETTERS  OF  ADMINISTRATION. 
Application  for  Letters  of  Administration. 

An  application  for  letters  of  administration  is  by  petition  to 
the  Surrogate  of  the  county  wherein  decedent  resided  at  the 
time  of  his  death.  Unlike  an  application  for  probate  of  a  will, 
application  for  administration  may  be  made  at  any  time  after 
the  death  of  the  intestate.  The  Surrogate  of  the  county  in 
which  a  non-resident  intestate  leaves  real  or  personal  property 
has  jurisdiction  to  grant  letters  of  administration  upon  his 
estate  within  such  county. 

Petition  for  Letters  of  Administration. 

The  petition  for  letters  of  administration  is  required  to  be  in 
writing  (see  form  34  infra)  and  to  be  veritied  by  affidavit, 
which  must  also  recite  the  value  of  the  personal  estate  of  the 
intestate.  This  affidavit  may  be  taken  by  any  person  author- 
ized to  administer  an  oath. 

Renunciation  by  or  Notice  to  Next  of  Kin. 

Where  application  for  administration  is  made  by  any  person 
other  than  the  party  first  entitled,  or  by  one  o^  several  equally 
entitled,  the  applicant  must  produce  to  the  Surrogate  either  the 
renunciations  and  requests  of  the  persons  so  entitled  that  letters 
be  issued  according  to  the  application,  or  ])roof  that  at  least  ten 
days'  notice  has  been  given  such  of  them  as  reside  in  this  state. 
In  the  case  of  non-resident  next  of  kin,  the  surrogate  has  power 
to  direct  what  notice  shall  be  given,  provided,  however,  that  it 
must  be  not  less  than  ten  nor  more  than  sixt}'  days.  Notice  to 
residents  of  this  state  is  served  either  personally  or  by  leaving 
a  copy  thereof  at  their  residence  or  usual  place  of  abode.  Non- 
residents may  if  the  surrogate  so  directs,  be  served  by  mail, 
])OStage  ])repaid,  addressed  to  their  last  known  residence. 

Administration  After  Forty  Days  from  Death. 

If  the  executor  named  in  any  will  does  not  a])ply  for  the 
|)robate  thereof -or  for  letters  testamentary  thereon  within  forty 
(lays  from  the  death  of  his  testator,  or  if  the  next  of  kin  of 
any  intestate  do  not  a])pl\-  for  administration  within  fort\'  davs 
from  his  dcalli.  the  surrogate  may  grant  administration  or  ad- 
53 


8i6  Probate  Law  and  Practice. 

ministration  with  the  will  annexed,  as  the  case  may  require,  to 
any  fit  person  who  will  accept  the  same. 

The  petition  for  letters  of  administration  in  cases  of  this 
character  follows  the  form  prescribed  in  the  ordinary  case,  with 
the  addition  of  allegations  reciting  the  neglect  of  the  parties  in 
interest  to  make  application  for  forty  days  after  the  death  of  the 
decedent  and  the  interest  of  the  party  making  the  application. 
The  same  notice  is  given  of  applications  of  this  character  as  in 
the  ordinary  case  of  application  for  grant  of  letters  of  adminis- 
tration. 

Applications  of  this  character  are  usually  made  at  the  instance 
of  creditors  of  the  deceased,  in  cases  where  the  next  of  kin 
neglect  to  take  such  proceedings,  and  the  creditor  finds  it  neces- 
sary to  have  a  personal  representative  appointed.  A  creditor 
applicant  should  not,  however,  receive  the  appointment,  as  his 
interests  are  adverse  to  those  of  the  next  of  kin;  and  if,  in 
response  to  the  notice  of  application,  one  of  the  next  of  kin 
appears  and  demands  administration,  it  should  be  granted  to 
him. 

Bond  of  Administrator. 

Administrators  are  required  to  give  security  for  the  faithful 
performance  of  their  duties,  and  the  Surrogate  has  no  power  to 
grant  letters  of  administration  without  taking  such  security. 

The  security  required  from  administrators  is  a  bond  in  double 
the  amount  of  all  the  personal  estate  of  the  intestate.  The  mis- 
take is  often  made,  in  fixing  the  amount  of  an  administrator's 
bond,  of  taking  into  consideration  only  such  assets  as  cannot  be 
transferred  without  administration,  and  ignoring  cash,  jewelry 
and  similar  personal  property  found  among  the  personal  effects 
of  the  intestate.  The  bond  is  for  the  benefit  of  creditors  and 
next  of  kin,  and  in  fixing  the  amount  thereof,  the  entire  per- 
sonal estate  of  the  intestate  must  be  taken  into  consideration. 

Under  certain  circumstances,  the  amount  of  an  administra- 
tor's bond  may  be  fixed  at  less  than  double  the  amount  of  the 
personal  estate,  as  will  be  found  fully  explained  in  the  chapter 
devoted  to  "Pjonds  of  Executors,  Administrators,  Guardians 
and  Trustees." 


Letters  of  Administration.  817 

Two  sureties  are  required  upon  an  administrator's  bond,  who 
must  each  qualify  as  the  owner  of  real  estate  in  the  amount  of 
the  penalty  of  the  bond.  A  married  woman  cannot  be  a  surety 
on  a  bond  nor  can  either  husband  or  wife  in  a  case  where  the 
title  to  the  property  is  in  both.  Affidavits  of  qualification  of 
sureties  may  be  taken  before  any  person  authorized  to  ad- 
minister an  oath. 

Qualification  of  Administrator. 

An  administrator,  before  the  issuing  of  letters  to  him.  is 
required  to  take  an  affidavit  well  and  truly  to  perform  the 
duties  of  his  office,  which  affidavit  can  only  be  taken  before  the 
Surrogate  or  Deputy- Surrogate. 

Non-Resident  Administrators. 

The  appointment  of  a  non-resident  should  be  avoided  when- 
ever possible.  The  Orphans'  Court  Rules  provides  that  a  resi- 
dent shall  always  be  preferred  to  a  non-resident.  When  a  non- 
resident is  appointed  as  administrator,  he  is  required  in  every 
case  to  give  to  the  Surrogate  a  power  of  attorney  to  acknowl- 
edge service  of  process  issued  in  any  cause  to  which  he  as 
such  administrator  is  made  a  party. 

Inquiry  for  Absent  Next  of  Kin. 

If  the  residence  of  any  next  of  kin  entitled  to  notice  of  an 
application  for  letters  of  administration  or  guardianship  is  un- 
known the  applicant  or  his  proctor  is  required  to  make  diligent 
inquiry  from  the  nearest  relatives  of  the  decedent  or  minor  and 
also  all  persons  who  the  applicant  or  his  proctor  has  reason  to 
believe  know  the  residence  of  such  absent  next  of  kin.  These 
inquiries  may  be  made  by  letter  which  must  state  the  object  of 
the  inquiry. 

Proof  by  affidavit  of  making  such  inquiry  nuist  be  tiled  with 
the  Surrogate  before  letters  will  be  granted. 


8i8  Probate  Law  and  Practice. 

ADMINISTRATION  WITH  THE  WILL  ANNEXED. 

Application  for  Letters. 

The  application  for  letters  of  administration  with  the  will 
annexed  follows  the  usual  form  of  an  application  for  probate, 
with  the  addition  of  allegations  reciting  the  death  of  the  execu- 
tor named  in  the  will  before  the  death  of  the  testator,  the 
renunciation  of  the  executor,  or  the  fact  that  the  will  named 
no  executor.  The  petition  must  be  verified  by  affidavit  which 
must  also  recite  the  value  of  the  personal  estate  of  the  testator. 
This  affidavit  may  be  taken  before  any  person  authorized  to 
administer  an  oath. 

Notice  of  Application. 

The  residuary  legatee  named  in  a  will  has  a  prior  right  to 
administration  with  the  will  annexed;  and  if  there  be  several 
residuary  legatees,  one  only  of  whom  applies  for  letters,  the 
renunciation  of  those  not  applying,  or  notice  of  the  application 
of  the  same  character  as  that  required  upon  application  for 
letters  of  administration,  is  required. 

If  the  will  contain  no  residuary  clause,  then  the  next  of  kin 
of  the  testator  are  entitled  to  administration  with  the  will 
annexed,  and  the  applicant  is  required  to  produce  renunciation 
or  proof  of  the  service  of  notice,  as  in  the  case  of  the  ordinary 
grant  of  administration. 

Bond  of  Administrator  c.  t.  a. 

An  administrator  with  the  will  annexed  is  required  to  give  a 
bond  for  the  faithful  performance  of  his  duties  with  sufficient 
sureties.  The  requirements  as  to  the  penalty  of  the  bond  and 
the  sureties  thereto  are  the  same  as  those. in  the  case  of  ordi- 
nary administration  which  see  supra. 


SUBSTITUTIONARY  ADMINISTRATION. 

Application  for  Letters. 

Application  for  letters  of  substitutionary  administration  is  by 
petition  in  the  form  required  upon  the  application  for  letters  of 


Letters  of  Administration.  819 

administration  (see  form  48  infra),  with  the  addition  thereto 
of  an  allegation  reciting  the  appointment  of  the  original  ad- 
ministrator, and  his  death,  discharge  or  removal,  as  the  case 
may  be.  The  petition  must  be  verified  by  affidavit  which  must 
recite  the  value  of  the  estate  and  may  be  taken  bef(jre  any 
person  authorized  to  administer  an  oath. 

Renunciation  or  Notice  of  Application. 

Renunciation  by  or  notice  of  application  to  the  ne.xt  of  kin 
entitled  to  substitutionary  administration  is  required,  as  in  the 
case  of  an  application  for  letters  of  administration,  which  see 
supra. 

Qualification  of  Substitutionary  Administrator. 

A  substitutionary  administrator  is  required  to  make  oath  that 
he  will  well  and  truly  perform  the  duties  of  his  office,  which 
oath  can  only  be  administered  by  the  Surrogate  or  Deputy- 
Surrogate. 

Where  Next  of  Kin  Neglect  to  Apply  for  Forty  Days. 

If  any  administrator  dies  before  fully  administering  the 
estate  of  his  intestate,  and  the  parties  by  law  entitled  do  not 
apply  for  substitutionary  administration  for  forty  days  after 
the  death  of  such  administrator,  any  person  in  interest  may 
make  such  application.  Renunciation  by,  or  notice  to  those  en- 
titled by  law  to  administration,  as  well  as  the  same  bond  and 
qualification,  are  required  as  in  the  case  of  grant  of  letters  of 
administration,  which  see  supra. 


SUBSTITUTIONARY  ADMINISTRATION   C.   T.   A. 


Application  for  Letters. 

An  application  for  letters  of  substitutionary  administration 
with  the  will  annexed  is  by  petition,  which  should  recite  the 
name  and  address  of  the  applicant,  and  the  date  of  the  probate 


820  Pkobate  Law  and  Practice. 

of  testator's  will,  and  also  the  fact  that  the  executor  thereof, 
having  duly  taken  upon  himself  the  burden  of  administering 
the  estate  of  testator,  has  died,  been  discharged  or  removed. 
as  the  case  may  be.  The  petition  should  then  set  forth  the 
names  of  the  next  of  kin  and  heirs  at  law  of  the  said  testator, 
as  well  as  the  names  of  the  residuary  legatees  named  in  his  will, 
if  any,  and  if  none  are  therein  named,  the  petition  should  so 
recite.  The  petition  should  also  recite  the  post-oiifice  addresses 
or  places  of  residence  of  aH  of  the  next  of  kin,  heirs  at  law, 
and  residuary  legatees  of  said  testator,  and  if  any  of  the  above- 
named  be  minors,  the  age  of  such  minors,  and  should  be 
verified  by  the  affidavit  of  the  applicant,  which  should  also 
recite  the  value  of  the  personal  estate  for  administration  of 
which  the  application  is  made. 

Notice  of  Application. 

The  same  provisions  as  to  renunciation  by  or  notice  to  next 
of  kin,  heirs  at  law  or  residuary  legatees  entitled  to  sub- 
stitutionary administration  apply  as  in  the  case  of  administra- 
tion with  the  will  annexed,  which  see  supra. 

Bond  of  Substitutionary  Administrator  c.  t.  a. 

A  substitutionary  administrator  c.  t.  a.  is  required  to  give 
bond,  with  the  same  penalty  and  sureties  as  are  required  from 
an  administrator  which  see  supra. 

Where  no  Application  is  Made  for  Forty  Days. 

If  the  persons  by  law  entitled  do  not  make  application  for 
letters  of  substitutionary  administration  with  the  will  annexed 
for  forty  days  after  the  death  of  an  executor,  any  person  in 
interest  may  make  such  application.  Renunciation  by  or  notice 
to  persons  entitled  to  such  administration,  as  well  as  the  same 
bond  and  qualification  as  in  the  case  of  the  grant  of  letters  of 
administration  with  the  will  annexed,  are  required. 


Lkttkrs  of  Admixistratiox.  82 r 

ADMINISTRATION  UPON  ESTATES  OF  NON- 
RESIDENTS. 

In  General. 

The  Surrogate  of  a  county  wherein  a  non-resident  intestate 
leaves  real  or  personal  property  has  jurisdiction  to  grant  ad- 
ministration upon  his  estate  within  this  state.  The  adminis- 
trator of  such  non-resident  intestate,  appointed  in  the  foreign 
jurisdiction,  has  a  prior  right.  If,  however,  he  renounces  such 
right,  then  the  next  of  kin  or  persons  entitled  to  administration 
under  the  laws  of  this  state  become  entitled,  and  where  appli- 
cation is  made  by  one  other  than  the  foreign  administrator,  such 
notice  of  such  application  is  to  be  given  as  the  Surrogate  may 
by  order  prescribe. 

If  the  executor  or  administrator  of  a  non-resident  decedent 
neglects  for  the  space  of  sixty  days  after  the  death  of  such 
decedent  to  make  application  in  this  state  for  letters  testament- 
ary or  of  administration  upon  such  decedent's  estate,  then  any 
person  having  a  debt  or  legal  claim  against  such  decedent  may 
make  application  therefor,  and  the  Surrogate  may  issue  letters 
of  administration  or  administration  with  the  will  annexed,  as 
the  circumstances  may  require,  to  any  tit  person. 

Before  granting  administration,  the  applicant  is  required  to 
give  such  notice  to  the  foreign  executor  or  administrator  as 
the  Surrogate  may  prescribe. 

The  practice  upon  applications  of  this  character  is  the  same 
as  above  outlined  -upon  an  application  for  administration  upon 
the  estate  of  a  resident,  except  that  the  petition,  if  made  by  the 
foreign  administrator,  should  recite  the  fact  that  deceased  was 
a  non-resident,  and  the  fact  of  the  appointment  of  the  petitioner 
as  administrator  upon  his  estate  in  the  place  of  his  domicile, 
and  that  the  said  intestate  left  personal  or  real  property  within 
the  county  in  which  the  application  is  made. 

In  case  the  application  is  made  by  one  other  than  the  foreign 
administrator,  the  petition  should  recite  the  non-residence  of 
<lecedent,  and  should  state  whether  or  not  administration  upon 
his  estate  has  been  granted  in  the  place  of  his  domicile,  and 
if  so,  should  state  the  name  of  the  administrator,  and  should 
also  recite  the  fact  that  the  applicant  is  a  creditor  of  said  intes- 


822  Probatk  Law  and  Practice. 

tatc,  and  that  due  notice  of  the  application  has  Ijeen  given  pur- 
suant to  the  order  of  the  Surrogate. 

The  subsequent  proceedings  are  identical  with  those  in  the 
grant  of  administration  upon  the  estate  of  a  resident  of  this 
state. 

A  peculiar  feature  of  the  statute  conferring  jurisdiction  upon 
the  Surrogate  in  case  of  the  grant  of  administration  upon  the 
estate  of  a  non-resident  intestate  is  that  it  makes  no  provision 
for  the  transference  of  the  cause  to  the  Orphans'  Court  in  case 
of  a  contest  over  the  right  of  administration  ;  and  it  has  been 
held  that  under  such  circumstances,  the  Surrogate  should  hear 
and  determine  such  contest. 

ADMINISTRATION   UPON   THE   ESTATE   OF  A    PERSON 

WHO  ABSENTS  HIMSELF  FROM  THE  STATE  FOR 

MORE  THAN  SEVEN  YEARS. 

If  any  resident  of  this  state,  or  a  non-resident  who  leaves 
personal  property  in  this  state,  absents  himself  from  the  place 
of  his  or  her  domicile  for  seven  years  successively,  the  Ordinary 
or  the  Surrogate  of  the  county  wherein  such  person  resided,  or 
in  which  such  property  may  be,  has  jurisdiction  to  grant  letters 
of  administration  upon  his  estate,  and  to  adjudicate  that  such 
person  shall  be  regarded  as  dead  for  all  purposes. 

This  proceeding  is  initiated  by  petition,  which  should  recite 
the  residence  and  relationship  of  the  petitioner ;  the  names  and 
residences  of  all  of  the  next  of  kin  and  heirs  at  law  of  the 
person  so  absenting  himself  from  this  state ;  all  of  the  circum- 
stances surrounding  the  disappearance  of  such  person ;  what 
efforts  have  been  made  to  locate  him ;  and  when  and  where  he 
was  last  heard  from,  together  with  such  additional  facts  as  will 
place  the  Ordinary  or  Surrogate  in  full  possession  of  the  entire 
circumstances  of  the  case. 

Upon  the  presentation  of  such  petition,  if  the  facts  therein  set 
forth  warrant  it,  the  Ordinary  or  Surrogate  will  order  that 
cause  be  shown  at  a  certain  time  and  place  in  such  order 
expressed,  not  less  than  thirty  days  nor  more  than  three 
months  from  the  time  of  making  such  order,  why  letters  of 
administration   should  not  be  granted  to   the  person   making 


LKTTKRS  of  Au.MlMSTKATlOX.  8_'3 

such  application  ;  tlie  order  to  show  cause  should  also  prescribe 
the  manner  in  which  the  same  shall  be  published  or  served. 

Upon  the  return  day  of  the  order  to  show  cause,  the  appli- 
cant attends  before  the  Ordinary  or  Surrogate,  as  the  case  may 
be,  and  proceeds,  by  the  taking  of  the  testimony  of  witnesses,  to 
establish  the  facts  set  forth  in  his  petition  ;  and  if  he  prove  to 
the  satisfaction  of  the  Ordinary  or  Surrogate  that  such  j^erson 
has  rernained  beyond  the  sea,  or  absented  himself  from  this 
state,  or  has  concealed  himself  in  this  state  for  seven  years 
then  last  past  the  Ordinary  or  Surrogate  may  order  that  such 
person  shall  be  considered  as  dead,  and  that  letters  of  adminis- 
tration be  granted  upon  his  estate. 

The  subsequent  proceedings  in  regard  to  grant  of  adminis- 
tration of  this  character  are  the  same  as  in  the  case  of  a  resident 
intestate,  and  the  administrator  is  authorized  to  distribute  the 
residue  of  the  estate  of  such  absent  person,  after  the  payment 
of  debts  and  expenses,  as  if  he  had  died  intestate.  Such  dis- 
tributees are  however,  required  to  give  to  the  administrator  a 
bond  with  good  and  sufficient  sureties,  with  condition  that  they 
will  refund  and  pay  back  to  said  administrator  the  portion  of 
the  said  estate  received  by  them  respectively,  in  case  the  absent 
person  shall  thereafter  reappear  and  claim  the  same. 


CONTESTED  ADMINISTRATION. 


Method  of  Raising  Contest. 

A  contest  over  the  right  of  administration  may  be  initiated, 
before  letters  are  actually  granted,  either  by  filing  with  the 
surrogate  a  caveat  against  the  grant  of  such  letters,  or  if  appli- 
cation for  such  letters  has  already  been  made  but  not  actually 
issued,  by  filing  a  cross-petition  for  letters. 

-After  the  grant  of  letters,  contests  respecting  the  right  of 
administration  can  only  be  raised  by  taking  an  ai)peal  from  the 
grant  of  such  letters  by  the  Surrogate,  which  appenl  must  be 
taken  within  twenty  days  after  such  grant  of  letters. 


824  Probate  Law  and  Practice. 

Surrogate  to  Issue  Citations. 

Jn  the  case  of  a  dispute  concerning  the  right  of  administra- 
tion, whether  initiated  by  a  caveat,  cross-petition  or  appeal,  the 
Surrogate  is  required  to  issue  citations  to  all  persons  concerned 
to  appear  before  the  Orphans'  Court  on  a  day  therein  named, 
which  court  will  thereupon  proceed  to  determine  tloe  contro- 
versy. 

Proceedings  in  Orphans'  Court. 

The  proceedings  in  the  Orphans'  Court  are  the  same  whether 
the  dispute  was  initiated  by  a  caveat,  cross-petition  or  appeal. 
In  the  case  of  a  caveat  or  appeal,  the  petitioner  before  the 
Surrogate,  and  in  the  case  of  a  cross-petition,  the  person  tiling 
the  earlier  petition,  presents  his  case  to  the  court.  He  is  privi- 
leged to  call  witnesses  to  testify  in  support  of  his  contentions, 
who  are  subject  to  cross-examination  by  the  contestant,  after 
which  the  latter  may  produce  witnesses  in  support  of  his  con- 
tentions, who  in  turn  are  subject  to  cross-examination  on  the 
part  of  the  petitioner. 

Considerations    Controlling    Court    in    Determination    of 
Contests. 

The  court  has  no  power  to  grant  letters  of  administration  to 
a  stranger  while  one  of  the  persons  entitled  by  law  thereto 
is  willing  and  competent  to  accept  the  same.  As  between 
persons  claiming  administration  and  equally  entitled  thereto, 
other  things  being  equal,  the  court  will  prefer  a  male  to  a 
female,  and  an  older  to  a  younger,  and,  while  not  compelled  by 
law  so  to  do,  will  usually  respect  the  wishes  of  a  majority  of 
those  entitled. 

The  court  is  required  by  rule  of  the  Orphans'  Court  to  prefer 
a  resident  of  the  State  of  New  Jersey  to  a  non-resident. 
Costs  and  Counsel  Fees. 

Contests  over  the  right  of  administration  are  not  favored  by 
the  court,  and  except  under  unusual  circumstances,  no  costs  or 
counsel  fees  will  be  allowed  payable  out  of  the  estate  of  the 
intestate.     Each  party  will  be  required  to  pay  his  own  costs. 

In  a  case,  however,  of  an  appeal  from  the  grant  of  letters 
of  administration  by  the   Surrogate,   if  the  Orphans'   Court 


Lktters  of  Guardiaxship.  825 

affirms  the  decree  of  the  Surrogate,  the  administrator  success- 
fully defending  his  petition  will  be  entitled  to  his  reasonable 
costs  and  counsel  fees  out  of  the  estate. 


LETTERS  OF  GUARDIANSHIP. 

Courts  Having  Jurisdiction. 

The  Ordinary,  and  the  Orphans'  Court  and  Surrogate  of  the 
coimty  wherein  any  minor  resides,  have  concurrent  juris- 
diction to  grant  letters  of  guardianship  of  such  minor. 

General  Remarks. 

In  considering  the  subject  of  guardianship  of  minors,  the 
distinction  between  an  application  for  letters  of  guardianship 
in  the  case  of  an  orphan,  i.e.,  a  fatherless  child,  and  in  that  of  a 
minor,  whose  father  is  living,  must  be  kept  carefully  in  mind. 
In  the  case  of  an  orphan,  the  guardianship  is  of  the  person 
and  estate,  while  in  the  case  of  a  minor  whose  father  is  living, 
the  guardianship  is  only  of  the  estate  of  such  minor.  The  pro- 
ceedings in  each  case  are  radically  difTerent,  and  the  practice 
upon  an  application  for  the  appointment  of  a  guardian  of  the 
estate  of  an  orphan  under  fourteen  years  varies  from  that  upon 
an  application  for  the  appointment  of  a  guardian  of  the  estate 
of  an  orphan  over  fourteen  years. 

I.  IN  THE  CASE  OF  AN  ORPHAN  UNDER  FOURTEEN 

YEARS. 

Who  Entitled. 

The  nearest  of  kin  of  an  orphan  under  fourteen  rears  is  en- 
titled to  letters  of  guardianship  of  his  person  and  estate,  the 
mother,  if  living  having  the  prior  right. 

Petition  for  Letters. 

The  petition  for  letters  of  guardianship  must  recite  the  age 
and  residence  of  the  minor,  and  the  names  and  residences  of  his 


826  Probate  Law  and  Practice. 

nearest  of  kin,  of  all  persons  standing  in  loco  parentis  to  such 
minor,  if  any,  and  of  the  persons  with  whom  he  resides.  The 
petition  should  he  verified  hy  the  affidavit  of  the  petitioner, 
which  should  recite  the  value  of  the  personal  estate  of  said 
minor  and  the  amount  of  the  income  from  any  real  estate 
belonging  to  him. 

Renunciation  or  Notice  of  Application. 

Where  application  for  guardianship  is  made  by  any  person 
other  than  the  party  first  entitled  thereto,  the  person  making 
such  application  is  required  to  produce  to  the  court  or  Surrogate 
either  the  renunciation  and  request  of  all  the  nearest  of  kin, 
of  the  person  or  persons  standing  in  loco  parentis  to  said  minor 
and  of  the  persons  with  whom  said  minor  resides,  that  letters 
be  issued  according  to  the  application,  or  proof  that  at  least  ten 
days  notice  has  been  given  to  the  above-named  persons  who  are 
residents  of  this  state,  or  that  not  less  than  ten  nor  more  than 
sixty  days  notice,  as  the  court  or  v^urrogate  may  by  order  di- 
rect, has  been  given  to  non-residents  entitled  to  guardianship. 

Bond  o£  Guardian, 

Guardians  are  required  by  the  statute  to  give  good  and  suf- 
ficient security  for  the  faithful  performance  of  their  duty  in 
such  sum  as  may  be  fixed  by  the  court.  The  penalty  of  guard- 
ians' bonds  is  usually  fixed  in  double  the  amount  of  the  personal 
estate  of  the  ward.  Where  the  vvard  owns  income  producing 
real  estate,  the  amount  of  such  income  which  the  guardian  will 
receive  during  the  period  of  his  guardianship  must  be  taken 
into  consideration.  Two  sureties  are  required,-  each  of  whom 
must  justify  in  the  full  amount  of  the  bond. 

Letters  of  Guardianship. 

The  order  appointing  a  guardian  for  an  orphan  under  four- 
teen years,  and  the  letters  issued  in  pursance  thereof,  provide 
that  the  appointment  shall  continue  until  the  said  orphan 
reaches  the  age  of  fourteen  years,  and  selects  a  new  guardian. 
It  follows,  therefore,  that  if  the  orphan  does  not  select  a  new 
guardian  upon  attaining  the  age  of  fourteen,  the  guardian  origi- 
nally appointed  continues  to  act  as  such. 


Lktteks  of  CiUakdiaxshii'.  827 

Practice    Where    Orphan,    Having    Attained    the    Age    of 
Fourteen,   Selects  a  New   Guardian. 

If  an  orj)han.  for  whom  a  fjuardian  has  heen  ap])ointed  while 
under  fourteen  years,  decides,  upon  attaining  that  age.  to  select 
a  new  guardian,  the  application  should  he  made  to  the  Orphans* 
Court  of  the  county  wherein  the  original  letters  of  guardian- 
ship were  granted,  which  application  is  required  to  be  signed  by 
the  orphan  in  the  presence  of  the  Surrogate,  Deputy-Surrogate, 
or  a  special  master  in  chancery,  and  to  recite  the  previous  grant 
of  letters  of  guardianship,  the  fact  that  the  minor  has  attained 
the  age  of  fourteen  years  and  wishes  to  select  a  new  guardian, 
and  in  addition  thereto  the  recitals  required  in  the  case  of  an 
original  application  for  the  appointment  of  a  guardian  for  a 
minor  over  fourteen  years. 

Renunciation  or  notice  of  such  application  is  required  as  in 
the  case  of  an  application  for  the  appointment  of  a  guardian 
for  an  orphan  under  fourteen  years.  The  petition  is  not  veri- 
fied, but  there  should  be  annexed  thereto  an  affidavit  of  the 
value  of  the  personal  estate  of  the  orphan  and  the  amount  of 
the  income  of  any  real  estate  belonging  to  him,  made  by  some 
person  having  personal  knowledge  of  these  matters. 

Upon  the  presentation  of  the  matter  to  the  court,  the  latter 
will  take  such  action  in  respect  to  the  appointment  of  a  guard- 
ian for  such  minor  as  may  seem  for  his  best  interest  and  ad- 
vantage;  and  it  cannot  be  doubted  that  if  upon  such  appli- 
cation, the  court  finds  that  the  guardian  selected  by  the  infant 
is  unfit,  the  court  may  deny  such  application. 

II.     IN   THE   CASE   OF  AN   ORPHAN   OVER   FOURTEEN 

YEARS. 

Petition  for  Guardianship. 

An  orjjhan  over  fourteen  years  has  the  right  to  select  his 
own  guardian.  The  petition  is  made  by  the  orphan,  and  con- 
tains the  same  recitals  as  in  the  case  of  a  petition  for  the 
appointment  of  a  guardian  of  an  orphan  under  fourteen  years. 
It  is,  however,  required  to  be  signed  by  the  orphan  in  the 
presence  of  the  Surrogate,  Deputy-Surrogate,  or  a  si)ecial 
master  in  chancery  of  New  Jersey.  The  petition  is  not  verified, 
but  annexed  tliereto  is  an  affidavit  of  tlic  value  of  the  personal 


828  Probate  Law  and  Practice. 

estate  of  the  orphan  and  the  amount  of  the  income  from  any 
real  estate  belonging  to  him,  made  by  some  person  having 
personal  knowledge  of  these  matters. 

Subsequent  Proceedings, 

The  subsequent  proceedings  upon  such  an  application  are  the 
same  as  in  the  case  of  a  minor  under  fourteen  years,  except 
that  the  order  appointing  the  guardian  and  the  letters  of  guard- 
ianship issued  thereunder  provide  that  such  guardian  shall  act 
until  the  said  minor  reaches  the  age  of  twenty-one. 

III.  APPOINTMENT  OF  GUARDIAN  FOR  CHILD  WHOSE 

PARENT  HAS  ABSCONDED. 

General  Remarks. 

If  the  parent  of  any  person,  a  resident  of  this  estate,  absconds 
or  absents  himself  from  the  state  for  the  term  of  two  years, 
leaving  in  this  state  any  minor  child  or  children  without  suit- 
able provision  for  their  maintenance  or  supervision,  the  Or- 
phans' Court  or  Surrogate  has  power  to  appoint  a  guardian  for 
such  child  or  children. 

Practice  on  Application. 

A  proceeding  of  this  character  is  initiated  l)y  petition  (see 
form  312  infra)  by  the  infant  if  over  fourteen  years,  or  by  his 
next  of  kin  if  under  fourteen  years,  and  the  proceedings,  in- 
cluding renunciation  by  or  notice  to  those  entitled  to  guardian- 
ship, bond,  etc.,  are  the  same  as  in  the  case  of  an  application  for 
letters  of  guardianship  of  an  orphan  minor  (which  see  supra). 

IV.  APPOINTMENT  OF  GUARDIAN  FOR  NON-RESIDENT 

ORPHAN  OVER  FOURTEEN  YEARS. 

General  Remarks. 

If  an  orphan  over  the  age  of  fourteen  years  resides  without 
this  state,  and  it  is  found  necessary  to  appoint  a  guardian  for 
such  minor  in  this  state,  the  Orphans'  Court  or  Surrogate  has 
power  to  make  such  appointment. 

Practice  on  Application. 

The  proceedings  are  initiated  by  petition  to  the  Orphans' 
Court  or  Surrogate  (see  form  305  infra)  ;  and  if  the  orphan  is 


Letters  of  Guardianship.  S29 

resident  in  some  other  state,  the  petition  is  required  to  be 
signed  by  such  orphan  in  the  presence  of  a  judge  of  a  court 
of  record  in  the  state  or  territory  in  which  such  orphan  shall 
be.  which  signature  is  required  to  be  acknowledged  before  said 
judge  in  the  same  manner  as  deeds  are  required  to  be  acknowl- 
edged b\"  the  laws  of  this  state. 

If  the  orphan  is  out  of  the  United  States  the  petition  of  the 
orphan  is  required  to  be  signed  and  acknowledged  by  him  before 
any  public  ambassador,  minister,  consul,  vice-consul,  consular 
agent,  charge  d'affaires  or  other  representative  of  the  United 
States  for  the  time  being  in  the  country  where  said  orphan 
was  at  the  time  of  signing  and  acknowledging  such  petition. 

V.  APPOINTMENT      OF      GUARDIAN      FOR      ORPHAN 

UNDER  FOURTEEN  YEARS  WHOSE  NEXT 
OF  KIN  ARE  NON-RESIDENTS. 

General  Remarks. 

The  Orphans'  Court  or  Surrogate  has  jurisdiction  to  appoint 
a  guardian  for  an  orphan  under  fourteen  years  residing  in  this 
state,  whose  next  of  kin  are  non-residents. 

Practice  on  Application. 

Application  for  the  appointment  of  a  guardian  of  this  char- 
acter is  b}'  petition  (see  form  310  infra)  of  any  person  inter- 
ested in  the  welfare  of  the  minor;  and  while  the  statute  pro- 
vides that  the  Orphans'  Court  or  Surrogate  may  take  such 
action  in  regard  to  the  appointment  of  a  guardian  for  such 
minor  as  shall  seem  for  his  best  interest  and  advantage,  still 
notice  of  such  application  should  be  given  to  the  next  of  kin 
in  the  same  manner  as  though  the  next  of  kin  were  resident 
within  this  state. 

VI.  APPOINTMENT   OF  GUARDIAN   FOR  THE   ESTATE 

OF  A  MINOR. 

General  Remarks. 

Guardianship  of  the  estate  of  a  minor,  as  distinguished  from 
guardianship  of  the  person  and  estate,  can  only  be  granted  in  a 
case  where  the  father  of  such  minor  is  living,  and  the  practice 
is  the  same  whether  the  minor  be  under  or  over  the  age  of 
fourteen  years.     In  short,  a  minor  over  fourteen  years,  whose 


830  Probate  Law  and  Practice. 

father  is  living,  has  not  the  right  to  select  a  guardian  of  his 
estate. 

Who  Entitled. 

The  father  of  a  minor  is  first  entitled  to  guardianship  of  his 
estate,  and  if  he  renounce  or  for  any  reason  be  incapacitated  to 
serve,  then  the  mother  has  the  prior  right,  and  after  her,  the 
next  of  kin. 

Proceedings  on  Application. 

Application  for  guardianship  of  the  estate  of  a  minor  is  by 
petition  (see  form  295  infra),  containing  the  same  recitals  as 
in  the  case  of  application  for  letters  of  guardianship  of  an 
orphan  under  fourteen  years,  except  that  it  does  not  state  that 
the  minor  is  an  orphan. 

Renunciation  and  Notice. 

Where  application  is  made  for  letters  of  guardianship  of  the 
estate  of  a  minor  by  any  person  other  than  the  party  first  en- 
titled thereto,  renunciation  or  notice  is  required  as  in  the  case 
of  an  application  for  the  appointment  of  a  guardian  for  an 
orphan  under  fourteen  years. 

The  proceedings  subsequent  to  the  petition  are  identical  with 
those  in  other  cases  of  guardianship,  except  that  the  order 
granting  guardianship  and  the  letters  granted  thereunder  pro- 
vide that  the  guardianship  shall  continue  until  the  ward  reaches 
the  age  of  twenty-one  years. 

VII.       APPOINTMENT     OF     SPECIAL     GUARDIAN     FOR 
NON-RESIDENT  MINOR. 

General  Remarks. 

The  Ordinary,  and  the  Orphans'  Court  of  any  county  in 
which  a  minor  who  is  a  non-resident  has  property  real  or 
personal,  has  jurisdiction  to  appoint  a  special  guardian  for 
such  property.  A  peculiar  feature  of  this  statute  is  found  in 
the  following  language — "and  said  courts  shall  have  authority 
to  control,  remove,  or  substitute  such  guardian."  Inasmuch  as 
it  is  well  settled  that  in  appointing  a  guardian  the  Surrogate 
acts  in  a  judicial  capacity  and  holds  a  court,  the  statute  would 
appear  to  give  to  the  Surrogate  power  to  remove  or  substitute 


Letters  of  Guardianship.  S31 

a  guardian  of  this  character  in  a  case  wliere  tlie  original  ap- 
pointment was  made  by  him. 

VIII.     TESTAMENTARY   GUARDIANSHIP. 

General  Remarks. 

The  father  of  any  minor,  and  after  the  death  of  the  father, 
the  mother,  may  by  deed  executed  in  his  or  her  Hfetime,  or  by 
will,  dispose  of  the  custody  and  tuition  of  such  child  during  his 
minority.  No  particular  form  of  language  is  necessary  for  the 
appointment  of  such  guardian,  the  manifestation  of  such  an 
intention  on  tlie  part  of  the  testator  being  all  that  is  required. 

Practice  on  Application. 

Application  for  letters  of  testamentary  guardianship  may  be 
made  either  to  the  Orphans'  Court  or  Surrogate  by  petition  of 
the  person  so  appointed  (see  form  297  infra).  If  the  mother 
of  such  minor  is  hving,  her  consent,  signed  and  acknowledged 
by  her  in  the  presence  of  two  witnesses  present  at  the  same  time 
who  shall  subscribe  their  names  thereto  as  witnesses  in  the 
presence  of  the  mother,  is  necessary,  and  such  consent  must  be 
proved  to  have  been  so  given  and  acknowledged  at  the  time 
the  will  appointing  the  testamentary  guardian  is  admitted  to 
probate.  The  effect  of  this  provision  is  to  require  the  mother 
to  execute  her  consent  before  the  will  is  admitted  to  probate; 
and  if  the  will  be  probated  without  her  consent  having  been 
obtained,  letters  of  testamentary  guardianship  cannot  there- 
after be  granted. 

In  case  the  wall  appoints  the  mother  guardian,  or  if  the 
mother  be  dead,  or  in  the  case  of  the  probate  of  the  will  of  a 
widow  appointing  a  testamentary  guardian,  letters  of  guardian- 
ship may  be  obtained  at  any  time  after  the  will  is  probated, 
upon  petition  for  that  purpose. 

Before  exercising  any  authority  over  the  minor  or  his  estate, 
testamentary  guardians  are  required  to  declare  their  acceptance 
of  the  guardianship  before  the  Surrogate  or  Orphans'  Court, 
and  are  required  to  give  bond  in  such  sum  as  the  said  court  or 
Surrogate  may  approve  and  order  for  the  faithful  execution  of 
their  office,  vmless  otherwise  directed  1)\-  Uie  testator's  will. 
54 


832  Probate  Law  and  Practice. 

IX.     APPOINTMENT  OF  GUARDIANS  FOR  IDIOTS  AND 

LUNATICS. 

General  Remarks. 

The  Orphans'  Court  has  jurisdiction  over  the  appointment  of 
guardians  of  lunatics,  but  the  Surrogate  has  no  jurisdiction  over 
matters  of  this  character.  Before  the  Orphans'  Court  can 
obtain  jurisdiction  to  appoint  a  guardian  for  an  incompetent, 
it  is  necessary  that  there  be  some  adjudication  as  to  his  incom- 
petency. This  may  be  established  by  inquest  in  the  Court  of 
Chancery,  and  under  certain  circumstances,  as  will  hereafter 
1)6  seen,  a  guardian  may  be  appointed  for  a  person  who  has 
been  adjudged  insane  by  a  judge  of  the  Court  of  Common 
Pleas,  upon  the  certificate  of  two  j^hysicians. 

After  Idiocy  or  Lunacy  Found  by  Inquest. 

After  the  person  has  been  adjudged  insane  in  a  proceeding 
dc  hmatico  inqmrendo  in  the  Court  of  Chancery,  a  certified 
transcript  of  the  proceedings  in  the  Court  of  Chancery  is  ob- 
tained and  filed  in  the  ofifice  of  the  Surrogate,  and  a  petition 
for  the  appointment  of  a  guardian  for  such  incompetent  (see 
form  329  infra)  is  presented  to  the  Orphans'  Court  of  the 
county  wherein  such  incompetent  resides.  The  nearest  of  kin 
of  such  incompetent  are  entitled  to  guardianship  and  where 
the  application  is  made  Ijy  one  of  several  equally  entitled,  the 
applicant  must  either  produce  the  renunciation  and  request 
for  his  appointment  of  all  those  equally  entitled  with  him  to  the 
guardianship  of  such  incompetent,  or  proof  that  at  least  ten 
days  notice  of  his  application  has  been  served  upon  all  of  such 
next  of  kin  who  are  residents  of  the  State  of  New  Jersey,  and 
that  not  less  than  ten  nor  more  than  sixty  days  notice,  as  the 
court  may  by  order  direct,  has  been  given  to  such  next  of  kin  as 
reside  without  the  State  of  New  Jersey.  Any  of  the  next  of 
kin  may,  upon  the  return  of  such  notice,  contest  the  right  of  the 
applicant  to  letters. 

The  court  will  require  the  guardian  appointed  by  it  to  give 
bond  in  such  sum  as  it  shall  by  order  direct,  with  at  least  two 
good  and  sufficient  sureties  who  must  each  qualify  in  the  full 
amount  of  the  bond  with  the  condition  prescribed  by  the  act 
(see  form  336^  infra),  which  bond  is  in  a  sum  double  the 
amount  of  the  personal  estate  of  such  lunatic  and  must  be 


Letters  of  Guardianship.  833 

approved  by  the  Orphans'  Court.  The  letters  of  guardianship 
are  issued  by  the  Surrogate  upon  the  hUng  with  him  of  tlic 
certified  copy  of  the  transcript  of  the  proceedings  in  the  Court 
of  Chancery,  the  petition  and  order  appointing  the  guarcHan, 
and  the  bond  approved  by  the  Orphans'  Court. 

Where  Lunatic  Whose  Estate  Does  Not  Exceed  One 
Thousand  Dollars  is  Committed  to  Asylum  at  Expense 
of  County. 

Where  a  person  is  adjudged  incompetent  l)y  a  judge  of  the 
Court  of  Common  Pleas,  and  is  confined  in  any  lunatic  asyluins 
in  this  state  at  the  expense  of  any  county  therein,  and  such 
person  is  possessed  of  property,  real  or  personal,  not  exceeding 
in  value  the  sum  of  one  thousand  dollars  the  Orphans'  Court 
of  the  county  at  whose  expense  the  incompetent  is  maintained 
has  jurisdiction  to  appoint  a  guardian  for  him. 

The  proceeding  is  initiated  by  petition  to  the  Orphans'  Court 
(see  form  335  infra),  and  should  have  annexed  thereto  the 
affidavits  of  two  physicians  connected  with  the  asylum  in  which 
such  incompetent  is  confined,  giving  a  full  medical  history  ot' 
said  incompetent  while  confined  in  said  asylum,  stating  when 
he  was  admitted,  and  if  still  a  ])aticnt.  and  whether  he  is  hy 
reason  of  insanity  not  cajiable  of  managing  his  personal  prop- 
erty. Subsequent  ])roceedings  are  identical  with  those  in  a  case 
where  the  appointment  is  made  after  an  inquest  in  the  Court 
of  Chancery. 

Where  Lunatic  Owns  Personal   Property  and   Has   Been 
Confined  in  an  Asylum  for  One  Year. 

When  any  person  has  been  confined  for  one  year  in  any 
asylum  for  the  insane  in  this  state  upon  the  certificate  of  two 
physicians,  and  such  person  is  possessed  of  personal  property, 
the  Orphans'  Court  of  the  county  in  which  such  incompetent 
shall  have  been  a  resident  when  committed  has  jurisdiction  tO' 
ajjpoint  a  guardian   for  him. 

It  is  to  be  observed  that  this  statute  authorizes  the  court  to 
appoint  a  guardian  for  a  person  who  has  been  confined  for  one 
year  in  an  asylum  in  this  state,  irrespective  of  the  amount  of 
])ersonal  propcrtv  which  such  incom|)etcnt  mav  possess. 


834  Probate  Law  and  Practice. 

The  proceedings  upon  such  apphcation  are  similar  to  those 
set  forth  in  a  case  where  the  incompetent  is  confined  at  the 
expense  of  the  county. 

For  Non-Resident  Idiot  or  Lunatic. 

The  Orphans'  Court  of  any  county  in  this  state  in  which  is 
situate  any  property  or  real  estate  of  any  non-resident  who 
has  been  duly  found  or  proved  to  be  an  incompetent  according 
to  the  laws  of  the  foreign  state  or  country  where  he  resides, 
has  jurisdiction  to  appoint  a  guardian  for  such  incompetent. 

Practice  on  Application. 

An  exemplified  copy  of  the  proceedings  of  the  foreign  state 
or  country  which  has  adjudicated  such  person  to  be  an  in- 
competent together  with  proof  that  such  person  is  still  incompe- 
tent, is  filed  with  the  Surrogate  of  the  county  in  which  he  may 
have  property  or  real  estate.  A  petition  is  then  presented  to 
the  Orphans'  Court,  which  thereupon,  in  a  proper  case,  will 
make  an  order  that  cause  be  shown  before  the  court  at  a  time 
and  place  therein  to  be  expressed,  not  less  than  thirty  days  nor 
more  than  six  months  from  the  time  of  making  such  order, 
why  a  guardian  should  not  be  appointed  for  the  said  incompe- 
tent, which  order  is  to  be  served  and  published  in  such  manner 
as  the  said  court  may  direct. 

If  the  person  making  the  application  satisfies  the  court  that 
he  has  been  appointed  guardian,  trustee  or  committee  of  such 
idiot  or  lunatic  in  the  state  or  country  where  said  person  may 
have  been  found  an  idiot  or  lunatic,  the  court  may  at  once 
appoint  the  person  making  the  application  without  any  order 
to  show  cause. 

Upon  the  return  of  the  rule  to  show  cause,  the  court  pro- 
ceeds to  examine  into  the  matter,  at  which  time  it  will  hear  any 
persons  who  may  apply  to  be  heard,  and  if  of  the  opinion  that 
letters  of  guardianship  should  be  granted,  will  appoint  a  fit 
person  to  be  selected  by  the  court  to  be  such  guardian. 

A  guardian  appointed  in  this  proceeding  is  required  to  give 
a  bond  in  such  sum  and  wath  such  sureties  as  may  be  directed 
lj\-  the  Orphans'  Court,  which  said  hand  must  be  approved  by 
the  Orphans'  Court. 


Letters  of  Guardianship.  833 

X.     APPOINTMENT    OF    GUARDIAN   AT    LITEM. 

In  General. 

The  practice  upon  the  appointment  of  a  guardian  ad  Hi  cm  in 
a  proceeding  pending  in  the  Prerogative  or  Orphans'  Court  is 
identical  with  that  in  the  Court  of  Chancery.  Where  the 
appointment  of  such  a  guardian  is  necessary,  the  citation  is 
served  upon  the  infant  and  together  therewith  a  notice  of  the 
application  for  the  appointment  of  such  guardian.  If  the  infant 
makes  application  on  his  own  behalf,  this  notice  of  course 
becomes  valueless.  It  is,  however,  the  proper  practice  to  serve 
such  notice  in  each  case. 

Practice  on  Application  on  Behalf  of  Infant. 

Application  for  the  appointment  of  a  guardian  ad  litem  is 
made  by  ])etition  of  the  infant,  if  above  the  age  of  fourteen 
years,  or  if  under  that  age,  by  his  guardian  appointed  by  the 
v'^urrogate  or  Orphans'  Court,  his  father  or  some  other  friend  in 
his  behalf,  praying  such  appointment.  Annexed  to  the  petition 
is  an  agreement  by  the  person  petitioned  for  as  guardian  to 
accept  the  appointment,  and  also  an  affidavit  that  the  petition 
and  agreement  were  duly  signed  by  the  persons  purporting  to 
sign  them,  and  verifying  the  age  of  the  infant. 

Where  no  Application  is  Made  on  Behalf  of  Infant. 

If  no  application  be  made  in  behalf  of  the  infant  within  five 
days  after  the  service  upon  him  of  the  citation  the  party  insti- 
tuting the  proceedings  may  apply  to  the  Orphans'  Court  for  the 
appointment  of  a  guardian  ad  litem.  Ten  days'  notice  of  such 
application  must  be  given  to  the  infant  if  of  the  age  of  fourteen 
years  and  resident  within  this  state,  or  if  under  that  age  or  not 
a  resident,  to  his  duly  appointed  guardian  if  any  there  be,  and 
if  no  such  guardian,  then  to  the  father,  or  if  no  father,  then 
to  the  mother,  or  if  no  mother,  then  to  the  person  standing  in 
loco  parentis  to  the  infant,  providing  the  above-named  persons 
be  resident  in  this  state.  ]\  not,  then  such  notice  siiall  l)e  given 
as  the  court  mav  bv  order  direct. 


S36  Probate  Law  and  Practice. 

XI.     SALE   OF   WARD'S   LANDS   BY   ORDER   OF   COURT. 

Jurisdiction. 

The  statute  confers  u])on  the  Orphans'  Court  jurisdiction  to 
order  the  sale  of  a  ward's  lands  in  a  case  where  the  personal 
estate,  and  the  rents  and  profits  of  the  real  estate  of  such  ward 
are  not  sufficient  for  his  maintenance.  Upon  such  an  appli- 
cation, the  only  question  before  the  court  is  whether  it  is  neces- 
sary to  sell  such  lands  for  the  maintenance  of  the  ward.  The 
fact  that  such  a  sale  is  for  the  best  interest  of  the  ward  by 
reason  of  the  nature  or  character  of  the  property  cannot  be  con- 
sidered ;  and  in  considering  whether  or  not  such  sale  is  neces- 
sary, the  court  is  bound  to  take  into  consideration  whether 
there  is  any  person  standing  in  loco  parentis  to  such  minor, 
legally  charged  with  his  support,  and  able  properly  to  maintain 
him.  If  such  a  person  exists,  the  Orphans'  Court  is  without 
jurisdiction  to  order  the  sale  of  the  ward's  lands. 

Petition. 

The  proceeding  for  the  sale  of  the  lands  of  a  ward  is  initiated 
by  petition  of  the  guardian,  which  should  recite  the  appoint- 
ment of  the  petitioner  as  said  guardian  and  should  recite  in 
detail  the  amount  and  character  of  the  estate  of  the  ward, 
and  should  also  recite  the  nearest  of  kin  of  such  ward,  and  par- 
ticularly the  person  or  persons  standing  in  loco  parentis  to  him, 
or  chargeable  with  his  support,  and  such  other  details  as  will 
fully  acquaint  the  court  with  the  fact  that  there  is  no  person 
standing  in  loco  parentis  to  such  ward  and  chargeable  with 
his  support,  who  is  able  to  maintain  him,  and  that  the  sale  of  the 
ward's  lands  is  necessary  for  his  maintenance.  The  petition 
should  be  verified  by  the  affidavit  of  the  petitioner. 

Hearing. 

Upon  the  presentation  of  the  petition  to  the  court,  the  pe- 
titioner is  required  to  produce  testimony  in  open  court,  sub- 
stantiating the  allegations  of  the  petition  and  proving  to  the 
satisfaction  of  the  court  that  the  personal  estate  and  the  income 
from  the  real  estate  of  such  ward  are  insufficient  for  his  main- 
tenance, and  that  there  is  no  person  standing  in  loco  parentis 
to  the  ward,  chargeable  with  his  support,  who  is  able  to  main- 


Letters  of  Guardiaxsiiip.  St,j 

tain  him.  If  the  court  is  satisfied  that  the  sale  of  tlie  ward's 
lands  is  necessary  for  his  maintenance,  it  will  make  an  order 
directing-  the  guardian  to  make  such  sale,  which  may  be  either 
public  or  private.  Before  signing  the  order  for  the  sale  of  the 
ward's  lands,  the  court  will  examine  as  to  the  sufficiency  of  the 
amount  of  the  bond  previously  given,  and  if  in  its  judgment  the 
bond  is  insufficient,  it  will  require  the  guardian  to  give  such 
additional  bond  for  the  faithful  execution  of  his  office  as  in 
its  judgment  will  be  adequate. 

Report  of  Sale. 

After  the  guardian  has  sold  the  lands,  as  directed  in  the  order, 
he  is  required  to  report  such  sale  to  the  court,  which  report 
should  recite  that,  pursuant  to  the  order  of  the  court,  he  has 
proceeded  to  sell  the  ward's  lands,  describing  them,  and  that  he 
has  sold  the  same  for  a  sum  which  he  considers  a  fair  and 
sufficient  price  therefor.  The  report  should  also  state  the 
names  and  addresses  of  the  nearest  of  kin  of  such  ward,  and 
should  have  annexed  thereto  affidavits  of  at  least  two  persons 
familiar  with  the  value  of  property  in  the  neighborhood  where 
the  lands  so  sold  are  located,  giving  the  fair  market  value  of 
the  lands  so  sold.  If  the  court  is  satisfied  that  the  lands  have 
been  sold  for  an  adequate  price,  it  will  make  an  order  approving 
such  sale,  and  directing  the  guardian  to  execute  a  good  and 
sufficient  conveyance  to  the  purchaser  thereof. 

Five  days  notice  of  the  intention  of  the  guardian  to  report 
such  sale  to  the  court  for  confirmation  must  be  given  to  all 
persons  in  interest  who  reside  in  this  state  and  not  less  than 
five  nor  more  than  sixty  days  notice,  as  the  court  may  by  order 
direct,  to  all  such  persons  in  interest  who  reside  without  the 
State  of  New  Jersey,  which  last  mentioned  notice  niav  be  sent 
by  mail  with  the  postage  thereon  prepaid. 

XII.       ORPHANS'     COURT     MAY    AUTHORIZE     USE     OF 

PRINCIPAL  OR  INCOME  OF  WARD  FOR 

HIS   SUPPORT. 

General  Remarks. 

The  Orphans'  Court  has  jurisdiction  upon  the  application 
of  a  guardian  of  any  minor  or  incompetent  to  authorize  the 
use  of  so  much  of  tlie  j)rincipril  or  income  of  the  estate  of  such 


838  Probate  Law  and  Practice. 

minor  or  incompetent  as  may  be  necessary  for  his  support, 
maintenance  and  education.  As  has  already  been  pointed  out 
(see  page  771  supra)  it  is  only  under  exceptional  circumstances 
that  applications  of  this  character  are  granted  by  the  court. 

Practice  on  Application. 

A  proceeding  of  this  character  is  initiated  by  a  petition  ad- 
dressed to  the  Orphans'  Court  (see  form  ^i-j  infra  ).  The  court 
thereupon  proceeds  to  inquire,  by  the  taking  of  the  testimony 
of  the  guardian  and  such  other  witnesses  as  may  be  required, 
into  the  merits  of  the  application,  and  if,  in  the  opinion  of  the 
court,  such  an  application  is  justified,  the  court  will  make 
its  order  fixing  the  sum  which  the  guardian  is  author- 
ized to  expend  from  principal  or  income  for  the  support,  edu- 
cation and  maintenance  of  his  ward.  An  order  for  the  expendi- 
ture of  the  principal  of  a  ward  cannot,  however,  be  made  to  con- 
tinue for  more  than  one  year. 

XIII.      ORPHANS'    COURT    MAY    ORDER    REMOVAL    OF 
PROPERTY  OF  MINOR  FROM  THE  STATE. 

General  Remarks. 

Where  any  guardian  and  his  ward  are  both  residents  of 
another  state  or  country,  and  such  ward  is  entitled  to  any  prop- 
erty, money  in  the  hands  of  any  resident  guardian,  or  any 
legacy  or  distributive  share  in  the  hands  of  any  executor  or  ad- 
ministrator in  this  state  or  otherwise,  the  Orphans'  Court  has 
jurisdiction  to  order  the  payment  of  such  moneys  of  said  ward 
to  the  foreign  guardian. 

Practice  on  Application, 

A  proceeding  of  this  character  is  initiated  by  the  petition  of 
the  non-resident  guardian  (see  form  307  infra)  to  which  must 
be  annexed  an  exemplified  copy  of  the  record  of  his  appoint- 
ment, which  must  disclose  the  fact  that  such  guardian  has  given 
adequate  security  in  double  the  amount  of  the  value  of  the 
property  in  this  state,  over  and  above  the  value  of  the  property 
of  such  ward  in  the  place  of  his  residence.  If  the  court  is  not 
satisfied  with  the  sufficiency  of  such  security,  additional  security 
to  be  given  in  this  state  may  be  required  by  the  court  in  such 
form  as  it  shall  direct. 


IXVEXTOKIES.  1^39 

This  proceeding  is  very  much  sim])hhe(l  if  the  foreign  record 
(hscloses  the  fact  that  the  foreign  guardian  has  given  adequate 
securit}'.  It  is,  therefore,  important  that  the  foreign  record 
should  state  the  amount  of  the  estate  of  sucli  ward  in  the  hands 
of  the  foreign  guardian.  If  the  foreign  record  docs  not  con- 
tain such  statement,  the  simpler  course  to  pursue  is  to  have  the 
foreign  guardian  file  an  amended  petition  in  the  court  by  wiiich 
he  was  appointed  disclosing  the  amount  of  the  estate  of  his 
ward  in  the  foreign  state,  and,  if  he  has  not  in  fact  given  a 
sufficient  bond,  to  file  such  additional  bond  in  the  court  wherein 
he  was  appointed  before  the  exetuplified  record  is  procured,  in 
which  event  the  record,  when  brought  to  this  state,  wull  show 
the  amount  of  the  funds  of  the  ward  in  the  hands  of  the 
guardian  and  also  the  amount  of  bonds  which  he  has  given, 
which,  when  compared  with  the  amount  he  has  to  receive  from 
the  executor  or  other  officer  in  this  state,  will  readily  disclose 
whether  or  not  he  has  given  sufficient  bonds. 

The  court  may,  in  its  discretion,  reject  any  such  application 
whenever  it  appears  that  it  is  for  the  interest  of  the  ward 
that  such  removal  should  not  take  place,  and  is  required  to 
reject  such  application  when  such  a  removal  will  conflict  with 
the  terms  attending  the  right  by  which  the  ward  owns  or  is 
entitled  to  such  property,  or  wdiere  the  interest  of  any  citizen  of 
this  state  in  such  property  may  be  jeopardized. 

Notice  of  Application. 

Twenty  days  notice  of  an  application  of  this  character  is 
required  to  be  given  to  the  resident  guardian,  executor  or  other 
official  in  whose  custody  the  money  or  property  of  such  minor 
may  be. 


INVENTORIES. 


I.     OF  EXECUTORS  AND  ADMINISTRATORS. 
Duty  to  File  Inventory. 

An  executor  or  administrator  is  required  to  make  an  inven- 
tory and  aj)praiscinent  o\   all  of  the  personal  projx'rty  of  liis 


840  Probate;  Law  and  Practice. 

decedent,  by  two  discreet  and  impartial  persons,  and  file  the 
same  with  the  Surrogate  within  three  months  after  the  grant 
of  letters  to  him,  unless  the  Orphans'  Court,  for  good  cause 
shown,  shall  allow  further  time.  While  the  cases  hold  that  the 
inventory  should  be  specific  and  not  general,  still  it  is  not 
necessary  to  itemize  every  individual  object  of  household  furni- 
ture. Thus  the  furniture  in  a  given  room  may  be  grouped 
altogether,  and  given  a  value.  So  with  the  pictures,  unless  the 
same  be  of  unusual  value.  So  ordinary  table-ware  may  be  in- 
ventoried as  a  single  item.  Of  course,  securities  and  the  like 
should  be  specifically  enumerated,  and  a  value  given  to  each. 
It  should  be  unnecessary  to  add  that  an  inventory  of  the  estate 
of  a  decedent  is  of  personal  property  only,  and  real  property 
should  never  be  included  therein. 

The  inventory  should  be  signed  by  the  executor  or  adminis- 
trator and  the  two  appraisers,  and  sworn  to  by  the  executor 
or  administrator  (see  forms  99  et  seq.  infra)  and  by  one  of  the 
appraisers,  which  affidavits  may  be  taken  by  any  person  author- 
ized to  administer  an  oath. 
When  Unnecessary  to  File  Inventory. 

An  executor  or  administrator  who  is  entitled  to  all  the 
personal  estate  of  his  testator  or  intestate  after  payment  of 
debts  and  legacies  is  not  required  to  file  any  inventory ;  but 
any  person  in  interest  may  apply  to  the  -Orphans'  Court,  on 
notice  to  the  executor  or  administrator,  for  an  order  requir- 
ing him  to  file  an  inventor}^ 

An  executor  or  administrator  c.  t.  a.,  appointed  in  this  state 
upon  the  exemplified  record  of  probate  of  a  foreign  will,  is 
not  required  to  file  an  inventory  unless  the  Orphans'  Court 
so  orders. 

Appointment  of  Appraisers. 

The  appraisers  are  selected  by  the  executor  subject  to  the 
approval  of  the  Surrogate,  except  in  a  case  where  it  is  desired 
to  set  off  goods  and  chattels  for  the  benefit  of  the  family  of 
the  decedent. 

Proceedings  to  set  off  Exemption  for  Family. 

The  statute  provides  that  there  may  be  set  oft'  to  the  widow 
or   children    who    shall    reside   in   the    family   of    any   person 


l.\  VEX  TORIES.  841 

residing  in  this  state  at  the  time  of  his  death,  the  wearing 
apparel  of  such  decedent,  and  goods  and  chattels,  moneys  and 
effects  of  the  estate  of  such  decedent  to  the  value  of  two 
hundred  dollars  over  and  above  the  claims  of  all  creditors. 
It  is  to  be  noted  that  the  family  of  a  decedent  is  not  entitled 
to  such  exemption  unless  the  same  is  set  off  in  the  manner 
prescribed  by  the  statute. 

Where  it  is  desired  to  set  off  an  exemption  for  the  benefit  of 
the  family  of  the  deceased,  application  is  made  to  the  Surro- 
gate for  the  appointment  of  two  discreet  and  judicious  persons 
of  his  county,  not  interested  in  the  estate  of  the  decedent,  and 
not  of  kin  to  his  widow  and  children,  to  act  as  appraisers, 
which  appointment  is  made  by  order  of  the  Surrogate. 

Before  entering  upon  their  duties  as  appraisers,  the  persons 
so  appointed  sign  an  affidavit  that  they  will  well  and  trulv 
l)erform  their  duties  as  such  appraisers,  after  which  thev  pro- 
ceed in  conjunction  with  the  executor  or  administrator  to 
make  the  inventory  and  appraisement,  which  is  in  the  usual 
form  and  is  signed  by  the  executor  or  administrator  and 
l)Oth  appraisers,  and  sworn  to  by  the  executor  and  one  of  the 
appraisers,  which  affidavits  may  be  taken  by  any  officer  author- 
ized by  law  to  administer  an  oath. 

After  the  inventory  and  appraisement  is  concluded,  the 
widow  of  the  deceased  or  his  executor  or  administrator  may 
select  from  such  inventor}-  goods  and  chattels,  moneys  and 
effects  to  the  value  of  two  hundred  dollars.  A  list  of  the 
property  so  selected,  verified  by  the  oath  of  the  executor  or 
administrator,  is  annexed  to  the  inventory,  whereupon  the 
family  of  the  decedent  become  entitled  to  the  property  so 
selected.  The  inventory  is  then  filed  in  the  office  of  the 
Surrogate. 

II.     GUARDIANS'  INVENTORIES. 

Duty  to  File  Inventory. 

Ivvery  guardian  is  required,  within  tln-ec  months  after  his 
appointment,  to  file  with  the  Surrogate  an  inventory  under 
oath,  of  all  the  estate,  real  and  personal,  which  he  has  received 
or  taken  })ossession  of.  It  is  to  be  observed  that  a  guardian's 
inventory,   unlike    that   of    an    executor   or   administrator,    in- 


842  Probata  Law  and  Practice. 

eludes  real  as  well  as  personal  property,  and  that  no  appraisal 
of  the  property  so  inventoried  is  required.  It  is,  however, 
customary  for  guardians,  in  their  inventories,  to  place  a  value 
upon  each  article  inventoried.  No  appraisal  is,  however,  ever 
made. 

III.     METHOD  OF  COMPELLING  EXECUTOR,  ADMINIS- 
TRATOR OR  GUARDIAN  TO  FILE  INVENTORY. 

Practice  on  Application. 

In  case  an  executor,  administrator  or  guardian  neglects  to 
file  an  inventory  within  the  time  prescribed  by  law,  any  party 
in  interest  may  present  to  the  Surrogate  a  petition  (see  form 
108  infra)  calling  his  attention  to  such  neglect.  The  Surro- 
gate thereupon  reports  the  matter  to  the  Orphans'  Court, 
which  will,  unless  some  good  reason  to  the  contrary  appears, 
order  the  Surrogate  to  issue  citations,  directing  such  executor, 
administrator  or  guardian  to  file  his  inventory ;  and  upon 
his  failure  so  to  do,  the  court  may  revoke  the  letters  granted 
to  him,  and  grant  letters  to  some  other  person,  or  in  case  such 
executor,  administrator  or  guardian  fails  to  file  his  inven- 
tory or  to  appear  in  response  to  such  citation  and  show  cause 
why  he  has  not  so  done,  the  court  may  hold  him  in  contempt 
for  disobedience  to  its  process. 

IV.     METHOD  OF  OBJECTING  TO  INVENTORY. 

Practice. 

The  method  of  objecting  to  an  inventory  is  by  filing  excep- 
tions thereto,  and  the  practice  is  the  same  as  in  the  case  of 
exceptions  to  an  accounting  (see  form  233  infra). 

The  inventory  of  an  executor  or  administrator  may  be 
objected  to  either  on  the  ground  that  the  appraisal  of  the 
personal  estate  of  decedent  is  unfair,  or  that  personal  property 
possessed  by  the  testator  at  the  time  of  his  death  is  not  in- 
ventoried. 

In  case  of  a  guardian's  inventory,  objections  may  be  made 
to  the  fact  that  it  does  not  contain  all  of  the  real  and  personal 
estate  of  the  ward. 


Barring  Creditors.  843 

Exceptions  to  the  inventory  of  an  executor  or  adminis- 
trator may  be  tiled  at  any  time  before  the  allowance  of  his 
first  account,  but  exceptions  to  a  guardian's  inventory  will 
lie  until  his  tinal  account  is  allowed. 


BARRING  CREDITORS. 

General  Remarks. 

The  statute  provides  that  upon  the  application  of  any  execu- 
tor or  administrator,  the  Surrogate  may  make  a  rule  requiring 
all  creditors  to  present  their  claims  under  oath  or  affirmation 
within  nine  months  from  the  entry  of  said  rule,  (  see  form  1 12 
infra)  or  be  forever  barred  from  any  action  upon  such  claims 
against  the  executor  or  administrator. 

Notice  of  the  entry  of  the  rule  to  limit  creditors  is  given  by 
publishing  a  notice  thereof  in  one  of  the  newspapers  circulat- 
ing in  the  county,  designated  by  the  Surrogate,  for  a  period  of 
two  months,  and  by  posting  the  same  in  live  of  the  principal 
places  in  the  county  for  the  same  period  of  time.  Proofs  of 
such  posting  and  publishing  are  tiled  with  the  Surrogate ;  and 
upon  the  expiration  of  the  nine  months,  he  will  enter  a  decree 
barring  creditors. 

It  must  be  kept  clearly  in  mind  that  the  provisions  of  this 
act  are  not  in  the  nature  of  a  statute  of  limitations,  nor,  except 
in  the  case  of  an  insolvent  estate,  does  it  bar  any  proceedings 
l)y  such  barred  creditors  to  recover  their  debts,  except  against 
the  executor  or  administrator.  The  object  of  the  proceeding 
is  solely  to  protect  the  executor  or  administrator  from  suits 
by  creditors  after  he  has  paid  all  the  claims  presented  to  him 
and  distributed  the  estate  in  his  hands. 

L'pon  the  payment  of  legacies  or  distributive  shares,  an  exec- 
utor is  required  to  take  from  the  legatee  or  distributee  a  re- 
funding bond,  conditioned  to  repay  so  much  of  the  legacy 
or  distributive  share  so  received  by  him  as  may  be  necessary 
to  pay  any  debts  which  may  thereafter  be  presented,  and  the 
filing  of  such  refunding  bonds  is  the  evidence  of  the  fact  that 
distribution  of  the  estate  has  been  made  by  the  executor;  until 
such  refunding  bonds  are  filed,  the  estate  is  regarded,  so  far  as 


844  Probate  Law  and  Practice. 

proceedings  by  creditors  are  concerned,  as  undistributed,  and 
the  executor  or  administrator  remains  liable  to  suits  for  any 
unpaid  claims.  The  importance  of  filing  refunding  bonds 
l)romptly  upon  the  payment  of  legacies  and  distributive  shares 
is  therefore  obvious. 
Relief  of  Barred  Creditors. 

Any  creditor  who  has  neglected  to  present  his  claim  to  the 
executor  or  administrator  within  the  time  fixed  by  the  rule 
limiting  creditors,  and  whose  debt  has  therefore  been  barred, 
may  after,  the  final  accounting  of  the  executor  or  adminis- 
trator, present  his  claim  to  him  ;  and  in  the  case  of  a  sol- 
vent estate,  if  he  does  so  before  the  executor  or  administra- 
tor has  made  distribution  of  such  estate,  it  becomes  the  duty 
of  the  latter  to  pay  the  same  or  so  much  thereof  as  he  has 
surplus  in  his  hands  for  that  purpose,  provided  he  is  satisfied 
that  the  claim  is  just,  and  if  not  so  satisfied,  he  may  require 
the  creditor  to  establish  his  claim  in  some  court  of  competent 
jurisdiction.  If  the  executor  or  administrator  refuses  to  pay 
a  claim  so  presented  to  him,  and  neglects  to  give  notice  to  the 
creditor  that  his  claim  is  disputed,  the  latter  may  bring  suit 
against  the  executor  or  administrator  for  the  recovery  of  his 
claim. 

If  after  the  distribution  of  an  estate  by  an  executor  or  ad- 
ministrator, a  barred  creditor  finds  some  portion  of  the  estate 
not  accounted  for,  he  may  require  the  executor  to  pay  his  debt 
therefrom. 

After  the  distribution  of  an  estate,  a  barred  creditor  may, 
by  application  to  the  Orphans'  Court,  obtain  permission  to 
bring  suit  upon  the  refunding  bonds  given  by  the  distributees 
and  legatees,  for  the  recovery  of  his  debt  (see  form  119 
infra).  He  may  also,  at  any  time,  and  without  application  to 
the  court,  bring  suit  against  heirs  at  law  or  de\isees. 


SALE  OF  LANDS  FOR  PAYMENT  OF  DEBTS. 

General  Remarks. 

If  an  executor  or  administrator  discovers  that  the  personal 
property  of  his  decedent  is  insufficient  to  pay  his  debts,  he  may 


Sale  of  Lands  for  Debts.  845 

make  application  to  the  ( )rphans'  Court  for  an  order  autlioriz- 
iiig  him  to  sell  any  lands  whereof  his  decedent  died  seized.  The 
debts  for  which  lands  may  be  sold  include  only  debts  created 
hy  decedent,  physicians'  bills,  funeral  expenses,  and  expenses 
of  administration.  Lands  cannot  be  sold  by  an  executor  or 
administrator  under  a  proceeding  of  this  character  for  ihe 
payment  of  legacies. 

An  executor  or  administrator  under  a  will  which  contains 
a  power  of  sale  may,  of  course,  sell  lands  of  his  decedent  for 
the  payment  of  debts  or  for  any  other  proper  purpose  without 
having  recourse  to  this  proceeding. 

Petition 

Proceedings  of  this  character  are  initiated  by  petition  to  the 
(  )ri)hans'  Court  under  oath  (see  form  134  infra).  If  there  be 
more  than  one  executor  or  administrator,  both  should  join  in 
the  petition. 

Annexed  to  the  petition  is  a  statement  of  all  the  personal 
estate  which  the  decedent  left  at  his  death,  whether  admin- 
istered or  unadministered,  which  should  be  followed  by  a 
schedule  setting  up  all  of  the  debts  of  which  the  executor  or 
administrator  has  knowledge,  both  of  which  statements  must 
be  rendered  under  oath. 

A  petition  for  the  sale  of  land  to  pay  debts  may  be  presented 
whenever  in  the  course  of  the  administration  of  the  estate  it 
l,>ecomes  apparent  that  the  personal  estate  is  insufficient  to  pay 
the  debts  of  decedent.  It  is  not  necessary  to  await  the  expira- 
tion of  the  order  to  limit  creditors,  if  one  be  taken,  nor  until 
the  executor  or  administrator  is  satisfied  that  all  debts  have 
been  presented,  although  if  possible  it  is  better  to  do  so,  as 
otherwise,  it  may  become  necessary  to  go  to  the  expense  of 
obtaining  a  second  order  of  .sale  to  pay  debts  which  were  un- 
known at  the  time  the  first  order  was  taken. 

Order  to  Show  Cause. 

Upon  the  presentation  of  the  petition,  the  court  will  there- 
upon make  an  order  requiring  all  persons  interested  in  such 
lands  to  appear  before  it  at  a  certain  day,  not  less  than  two 
months  after  the  making  of  such  order,  to  show  cause  why  so 
much  of  the  said  lands  of  decedent  should  not  be  sold  as  will 
be  sufficient  to  pay  his  debts,  which  order  to  show  cause  must  be 


846  Probate  Law  and  Practice. 

signed  by  the  Surrogate,  and  set  up  in  three  of  the  most  pubHc 
places  in  the  county  for  six  weeks,  and  must  also  be  published 
for  the  same  time,  at  least  once  in  each  week,  in  one  or  more 
of  the  newspapers  of  this  state,  as  the  court  may  direct. 

Method  of  Objecting  to  Schedules  Annexed  to  Petition. 

Any  person  in  interest  may  object  to  the  schedule  of  assets 
annexed  to  the  petition  on  the  ground  that  it  does  not  contain 
a  true  statement  of  all  of  the  personal  property  of  decedent, 
or  may  object  to  the  statement  of  debts  annexed  thereto,  on 
the  ground  that  some  of  them  are  not  legal  claims  against  the 
estate,  or  are  excessive,  by  tiling  exceptions  thereto,  which 
exceptions  will  be  heard  on  the  return  of  the  rule  to  show  cause  : 
in  hearing  such  exceptions,  the  court  may  determine  the  validity 
of  any  claim  against  the  estate. 

Hearing. 

Upon  the  return  day  of  the  rule  to  show  cause,  the  testimony 
of  the  executor  or  administrator  is  taken  for  the  purpose  of 
proving  the  allegations  of  the  petition,  and  also  of  the  sched- 
ules annexed  thereto ;  and  if,  after  disposing  of  any  exceptions 
to  the  statement  of  assets  or  debts,  it  appears  that  the  personal 
estate  of  the  said  decedent  is  insufificient  to  pay  his  debts,  the 
court  will  make  its  order  directing  such  executor  or  adminis- 
trator to  sell  so  much  of  the  lands  of  the  decedent  as  may  be 
necessary  for  that  purpose. 

At  the  hearing,  if  any  of  the  heirs  at  law  or  devisees  of  the 
decedent  appear  and  give  bond  with  sureties  satisfactory  to  the 
court,  conditioned  for  the  payment  of  all  debts  of  the  decedent, 
the  court  will  not  make  the  order  of  sale,  but  will  adjourn  the 
hearing  until  the  amount  of  the  deficiency  of  personal  estate 
to  pay  the  debts  has  been  ascertained,  at  which  time  the  exec- 
utor or  administrator  gives  notice  to  the  heir  who  has  given 
the  bond  of  the  amount  of  such  deficiency  and  if  he  does  not 
pay  the  same  the  court  will  upon  five  days'  notice  to  the  heir 
and  to  his  sureties,  order  that  his  bond  be  prosecuted  or  that 
sufficient  lands  of  decedent  to  pay  the  residue  of  his  debts  be 
sold. 


Sale  of  Lands  for  Debts.  847 

Order  for  Sale. 

The  order  for  sale  (see  form  136  infra)  must  contain  an 
adjudication  of  the  amount  of  the  dehciency  of  the  personal 
property  of  the  decedent  to  pay  his  debts,  and  must  direct  what 
lands  be  sold ;  as  has  already  been  said,  the  court  cannot  order 
the  sale  of  more  lands  than  is  necessary  to  raise  sufficient  money 
to  meet  such  deficiency.  Thus,  if  decedent  died  seized  of 
several  tracts  of  land  of  varying  value,  the  court  will  order 
the  sale  of  that  tract  which  is  nearest  in  vaUie  to  the  sum 
necessary  to  be  raised. 

Executor  or  Administrator  to  Give  Bond. 

Upon  ordering  lands  sold  to  pay  debts,  the  court  is  required 
to  order  further  that  the  executor  or  administrator  give  a  bond 
(see  form  137  infra),  which  must  be  approved  by  the  court, 
with  a  penalty  in  double  the  amount  of  the  estimated  value  of 
the  lands  directed  to  be  sold. 

The  condition  of  this  bond  is  different  from  that  required 
from  an  executor  or  administrator,  and  therefore,  even  though 
the  executor  or  administrator  has  given  a  bond  amply  sufficient 
to  cover  the  estimated  proceeds  of  the  sale,  he  is  still  required 
to  give  a  bond  in  double  the  estimated  value  of  the  lands  di- 
rected to  be  sold,  with  condition  prescribed  by  the  statute. 

Confirmation  of  Sale. 

After  the  executor  or  administrator  has  sold  the  lands  as 
directed  by  the  court,  which  sale  may  be  either  public  or  private 
in  his  discretion,  he  makes  his  report  of  such  sale  to  the  court 
under  oath  (see  forms  157,  158  and  161  infra). 

The  affidavits  of  two  persons  familiar  with  the  value  of 
property  in  the  neighborhood  of  that  which  the  executor  or 
administrator  has  sold,  setting  up  the  value  of  the  lands  so 
sold,  is  required  to  be  annexed  to  the  report. 

The  executor  or  administrator  is  required  to  give  five  days' 
notice  of  his  intention  to  apply  for  the  confirmation  of  such 
sale  to  all  persons  in  interest  who  are  residents  of  New  jersey, 
and  not  less  than  five  nor  more  than  sixty  days"  notice,  as  the 
court  may  by  order  direct,  to  all  persons  in  interest  who  reside 
without  the  state  of  New  Jersev,  which  notice  to  non-residents 
may  be  sent  by  mail. 
55 


848  Probate  Law  and  Practice. 

The  notice  to  persons  in  interest  may  be  dispensed  with  by 
the  executor  or  administrator  procuring  the  consent  of  such 
persons  to  the  sale. 

If,  alter  hearing  any  objections  to  such  sale,  the  court  is 
satisfied  that  the  same  was  fair  and  that  an  adequate  price  was 
obtained  for  the  land  sold,  it  will  make  its  order  confirming 
the  sale  and  directing  the  executor  or  administrator  to  execute 
?  deed  to  the  purchaser  therefor. 


SALE    OF    LANDS    BY    ADMINISTRATOR    WITH 
THE  WILL  ANNEXED. 


General  Remarks. 

The  statute  confers  upon  an  administrator  with  the  will  an- 
nexed authority  to  execute  any  power  of  sale  given  by  the  will 
to  the  executor  therein  named,  but  provides  that  such  sale 
shall  be  confirmed  by  the  Orphans'  Court. 

Tf  upon  the  filing  of  the  record  of  probate  of  a  foreign  will, 
it  appears  that  an  administrator  with  the  will  annexed  was 
appointed  in  the  jurisdiction  in  which  the  will  was  probated, 
and  that  such  will  was  executed  in  accordance  with  the  laws 
of  this  state,  such  administrator  with  the  will  annexed  is  em- 
powered to  execute  any  power  of  sale  conferred  upon  the 
executor  named  in  said  will,  in  the  same  manner  as  though  the 
will  had  originally  been  admitted  to  probate  in  this  state. 

Practice  on  Application. 

It  is  unnecessary  for  an  administrator  with  the  will  annexed 
to  make  any  application  to  the  court  for  permission  to  sell  the 
lands  of  his  testator.  He  is,  however,  after  he  has  entered  into 
contract  to  sell  such  lands,  required  to  make  application  to  the 
court  for  the  approval  of  such  sale ;  the  proceedings  upon  such 
application,  including  proof  of  the  value  of  the  land  so  sold, 
and  notice  of  or  consent  by  all  persons  interested,  are  the  same 


Insolvent  Estates.  S4() 

as  upon  an  application  of  an  executor  or  administrator  to  the 
court  for  the  contirmation  of  a  sale  in  a  proceeding  to  sell  lands 
for  the  payment  of  delfts.- 

Security  Required. 

Cpon  an  application  for  the  confirmation  of  a  sale  of  lands 
by  an  administrator  with  the  will  annexed,  the  court  is  required 
to  order  such  administrator  to  give  such  additional  security 
l>y  bond  as  the  court  shall  deem  advisable,  having  regard  to 
the  value  of  the  real  estate  sold. 

The  statute  does  not  prescribe  any  special  condition  in  the 
bond  required  from  an  administrator  with  the  will  annexed 
upon  the  sale  of  lands  of  his  testator,  but  the  bond  is  in  the 
same  form  as  that  required  from  an  administrator ;  and  in 
fixing  the  amount  of  such  bond,  the  court  will  take  into  con- 
sideration the  amount  of  assets  in  the  hands  of  the  adminis- 
trator, and  the  amount  of  security  which  he  has  already  given, 
and  will  hx  the  penalty  of  the  bond  accordingly. 


INSOLVENT  ESTATES. 


General  Remarks. 

Where  all  of  the  real  and  personal  estate  of  a  decedent  is 
insufficient  for  the  payment  of  his  debts,  the  estate  is  said  to 
be  insolvent,  and  it  becomes  the  duty  of  the  executor  or  ad- 
ministrator to  take  proceedings  to  have  the  estate  judicially  so 
declared.  This  proceeding  must  not  be  confused  with  an  ap- 
plication of  an  executor  or  administrator  for  the  sale  of  lands 
to  pay  debts,  which  is  only  appropriate  in  a  case  where  the 
personal  estate  is  insufficient  to  pay  debts,  but  there  is  real 
estate  sufficient  in  value,  when  sold,  to  make  uj)  the  deficiency. 

The  practice  on  the  api)lication  for  an  adjudication  that  an 
estate  is  insolvent  differs  in  a  case  where  a  decree  barring 
creditors  has  been  talst-n  from  that  in  a  case  where  no  sucli 
proceeding  has  Ijetn  had. 


850  Probate  Law  and  Practice. 

I.    WHERE  NO  RULE  TO  LIMIT  CREDITORS  HAS 

BEEN  TAKEN. 

Application  for  Order. 

This  proceeding  is  initiated  by  a  petition  of  the  executor  or 
administrator  (see  form  176  infra)  under  oath,  upon  the  pre- 
sentation of  which  the  court  will  make  an  order  directing  such 
executor  or  administrator  to  give  notice  to  the  creditors  of  the 
estate  to  exhibit  to  the  executor  or  administrator,  under  oath, 
their  claims  against  the  estate,  within  such  time  as  the  court 
shall  direct,  not  exceeding  eighteen  months  nor  less  than  six 
months. 

Publication  of  Notice  to  Creditors. 

The  notice  to  creditors  directed  by  the  court  is  given  by  pub- 
lishing a  notice,  not  the  order,  (see  form  178  infra),  at  least 
once  a  week  for  two  months  in  one  or  more  of  the  newspapers 
printed  in  this  state,  as  directed  by  the  court,  and  also  by  post- 
ing the  same  for  the  same  period  of  time  in  five  of  the  most 
public  places  of  the  county. 

Presentation  of  Claims. 

The  claims  presented  to  the  executor  or  administrator  pur- 
suant to  the  aforesaid  notice  are  required  to  be  in  writing, 
specifying  the  amount  and  particulars  thereof,  and  verified  by 
oath;  and  debts  payable  in  the  future  may  be  presented,  a 
proper  allowance  of  interest  being  made. 

Report  of  Claims  and  Inventories  of  Assets. 

After  the  expiration  of  the  time  limited  by  the  court  for  the 
presentation  of  claims,  or  at  the  term  of  court  next  ensuing, 
the  executor  or  administrator  is  required  to  make  a  report  of 
all  claims  exhibited  against  said  estate  (see  form  182  infra), 
and  also  to  exhibit  under  oath  to  the  court  an  account  of  all  of 
the  personal  property,  and  an  inventory  of  the  real  estate  of 
such  decedent  with  the  value  thereof  as  near  as  may  be. 

Notice  of  Filing  Report. 

The  executor  or  administrator  is  required  to  give  two 
months'  notice  of  his  intention  to  make  such  report  by  adver- 
tisement, signed  with  his  name,  and  set  up  in  three  of  the  most 


Insolvent  Estates.  851 

public  places  in  the  county  wherein  such  decedent  resided  at 
the  time  of  his  death,  which  notice  shall  specify  the  day  on 
which  such  report  will  he  made  to  the  court  (see  form  181 
infra).  The  report  must  be  filed  in  the  Surrogate's  office  at 
least  twenty  days  l:)efore  the  day  named  in  the  notice  for  pre- 
senting the  same. 

Exceptions  to  Executor's  Report. 

The  e.xecutor  or  administrator,  or  a  creditor  or  any  person 
interested,  may  file  exceptions  to  the  claim  of  any  creditor  in- 
cluded in  the  report  of  the  executor  or  administrator ;  and  any 
person  in  interest  has  the  right  to  except  to  the  account  of  as- 
sets and  inventory  of  real  estate  made  by  the  executor  or  ad- 
ministrator. Such  exceptions  are  filed  with  the  Surrogate  at 
any  time  prior  to  the  day  fixed  for  the  presentation  of  the  re- 
port to  the  court. 

If  any  creditor  whose  claim  is  excepted  to  prefers  to  have 
the  same  determined  in  a  court  of  law.  or  in  equity,  he  may  do 
so  by  proceeding  immediately  to  bring  such  suit. 

Executor   May   Require   Creditor   to   Obtain   Judgment   at 
Law. 

If  an  executor  or  administrator  prefers  to  have  the  claim  or 
demand  of  any  creditor  determined  at  law  or  in  equity,  in 
preference  to  filing  exceptions  to  the  same,  he  may  give  notice 
to  the  creditor  at  the  term  in  which  the  report  is  made  to  so 
proceed,  and  the  creditor  is  required  to  proceed  to  bring  such 
action  immediately. 

Hearing. 

Upon  the  presentation  of  the  aforesaid  report,  the  executor 
or  administrator  presents  to  the  court  testimony  in  support  of 
the  allegations  therein  contained.  The  testimony  of  the  exec- 
utor or  administrator  that  he  has  received  the  amount  of  per- 
sonal property  set  forth  in  his  account,  that  the  decedent  died 
seized  of  lands  of  the  value  set  forth  in  his  inventory,  and  that 
claims  of  the  amount  set  up  in  his  report  have  been  presented 
to  him,  is  usually  sufficient. 

After  the  testimony  in  snpport  of  the  report  has  been  pre- 
sented, the  court  will  proceed,  either  forthwith,  or  on  a  sub- 


852  Probate  Law  and  Practice. 

sequent  day  to  be  then  fixed  by  it,  to  hear  and  adjudicate  upon 
any  exceptions  to  the  report. 

Decree  of  Insolvency. 

If  upon  adjustment  of  the  claims  and  demands  of  creditors, 
and  on  consideration  of  the  amount  of  the  personal  and  real 
estate,  it  appears  that  the  real  and  personal  estate  of  the  dece- 
dent is  insufficient  to  pay  his  debts,  and  that  the  estate  is  likely 
to  be  insolvent,  the  court  will  so  decree,  and  will  order  the 
executor  or  administrator  to  proceed  as  though  the  estate  was 
insolvent;  the  order  may  also  authorize  the  administrator  to 
make  sale  of  any  land  whereof  the  decedent  died  seized. 

Proceedings  Subsequent  to  Decree  of  Insolvency. 

After  an  estate  has  been  decreed  to  be  insolvent,  the  exec- 
utor or  administrator  proceeds  to  convert  into  cash  all  of  the 
personal  property  of  the  decedent,  and  also  to  sell  any  lands 
whereof  he  may  have  died  seized.  He  also  pays  all  preferred 
debts. 

After  converting  all  of  the  estate  into  cash,  the  executor  or 
administrator  files  his  account  with  the  Surrogate,  in  which  he 
charges  himself  with  all  moneys,  whether  the  proceeds  of  per- 
sonal property  or  of  real  estate  received  by  him,  and  prays  al- 
lowance for  all  preferred  debts  paid,  as  well  as  for  the  ex- 
penses of  administration. 

This  account  must  be  noticed  for  settlement  and  audited  and 
stated  by  the  Surrogate  in  the  same  manner  as  accounts  of  exec- 
utors, etc.,  in  the  case  of  a  solvent  estate  (see  Accounts  of  Exec- 
utors, infra),  and  must  not  be  confused  with  the  account  which 
the  executor  or  administrator  is  required  to  annex  to  his  report 
to  the  court.  Upon  the  allowance  of  this  account,  the  court  will 
fix  the  executor's  commissions,  and  direct  distribution  of  the 
balance  of  the  estate  then  remaining  in  his  hands  among 
decedent's  creditors  in  proportion  to  the  sums  that  shall  be  due 
to  them  respectively,  fixing  the  percentage  to  be  paid  (see  form 
J  92  infra). 


I X  SOLVE  XT  Estates. 


^d:> 


II.   PRACTICE  IN  CASE  RULE  TO  LIMIT  CREDITORS  HAS 
BEEN   TAKEN. 

General  Remarks. 

If  a  rule  to  limit  creditors  has  been  taken,  an  executor  or  ad- 
ministrator may.  as  soon  as  claims  have  been  presented  to  him 
to  such  an  amount  as  to  satisfy  him  that  the  estate  is  insolvent, 
make  his  application  to  the  court  to  have  the  estate  decreea 
insolvent. 

Practice  on  Application. 

The  executor  or  administrator  presents  to  the  court  his  peti 
tion  (see  form  179  infra),  and  the  court  will  thereupon,  with- 
out further  publication,  by  order,  fix  a  day  for  the  presentation 
of  the  account  of  assets  and  report  of  claims  by  the  executor, 
which  day  must  be  at  least  two  months  distant.  Two  months' 
notice  of  his  intention  to  make  such  report  on  the  day  so  fixed 
by  the  court  must  be  given  by  the  executor  or  administrator. 
by  advertisement  signed  with  his  name  and  set  up  in  three  of 
the  most  public  places  in  the  county  in  which  decedent  resided 
at  his  death.  The  executor  must  file  his  account  with  the 
Surrogate  at  least  twenty  days  previous  to  the  day  on  which  he 
has  given  notice  that  he  will  present  the  same  to  the  court. 

The  subsequent  proceedings  are  identical  with  those  in  a 
case  wher€  no  rule  to  limit  creditors  has  been  taken,  (which 
see  supra). 


ACCOUNTING     BY     EXECUTORS.     ADMINIS- 
TRATORS, GUARDIANS.AND 
TRUSTEES. 


Duty  to  Account. 

The  statute  rc()uires  every  executor,  administrator,  guard- 
ian or  trustee  to  present  his  account  to  the  Orphans'  Court  for 
settlement  within  one  year  after  his  appointment,  or  at  the  first 
regular  term  of  the  Orphans'  Court  after  the  expiration  of  said 


854  Probate  Law  and  Practice. 

year,  unless  the  court  shall,  upon  application,  allow   further 
time  therefor. 

Guardians  and  trustees  are  required  to  file  intermediate  ac- 
counts at  least  once  in  three  years,  and  oftener  if  required  bv 
the  court. 

When  Unnecessary  to  Account. 

An  administrator  who  is  entitled  to  all  the  personal  estate  of 
his  intestate  after  payment  of  debts  is  not  required  to  file  any 
account  unless  required  to  do  so  by  some  person  interested  in 
said  estate. 

A  guardian  or  trustee  who  shall  file  with  the  Surrogate  a  re- 
lease from  his  ward  or  cestui  que  trust  of  full  age,  duly  exe- 
cuted and  acknowledged  as  deeds  of  land  are  required  to  be,  is 
not  under  any  duty  to  account. 

An  executor  or  administrator  with  the  will  annexed,  who  is 
entitled  to  all  the  personal  estate  of  the  testator  after  payment 
of  debts  and  legacies,  is  under  no  obligation  to  account  in  the 
Orphans'  Court,  provided  he  record  in  the  Surrogate's  office  re- 
ceipts or  releases  from  the  persons  entitled  to  legacies  under 
the  will.  Any  person  interested  may,  however,  require  such 
executor  or  administrator  to  account. 


I.  FINAL  ACCOUNTS  OF  EXECUTORS  AND 
ADMINISTRATORS. 


Form  of  Account. . 

Accountant  should  first  charge  himself  with  the  amount  of 
the  inventory  filed,  with  all  increases  in  personalty  inventoried, 
and  also  with  all  additional  personalty  which  has  come  to  his 
hands  subsequent  to  the  inventory  or  which  was  not  included 
therein.  The  accountant  should  then  pray  allowance  for  all 
disbursements  made  by  him.  If  property  inventoried  has  been 
sold  for  less  than  its  inventoried  value,  he  should  pray  allow- 
ance for  such  depreciation  in  value.     If,  however,  personalty^ 


Accounting.  855 

ill  the  nature  of  stocks  which  have  not  been  converted  by  the 
accountant  into  cash,  etc.,  have  increased  or  decreased  in 
market  value  subsequent  to  the  fiHng  of  the  inventory,  ac- 
countant should  not  charge  himself  with  such  increase  nor 
should  he  pray  allowance  for  such  decrease.  It  is  only  when 
personalty  has  been  turned  into  cash  that  the  accountant  is  en- 
titled to  an  allowance  for  diminished  value  over  the  inventory 
value,  or  is  chargeable  with  its  increased  value. 

Accountant  should  not  pray  allowance  in  his  account  for 
commissions,  as  he  is  not  entitled  thereto  until  they  are  fixed 
by  the  court.  He  should  however,  pray  allowance  for  the 
amount  of  Surrogate's  fees.  The  account  should  conclude 
with  a  summary,  showing  the  amount  received  by  accountant 
and  deducting  therefrom  the  amount  prayed  allowance  for,  and 
showing  the  balance  remaining  in  his  hands  ( see  form  229 
infra). 

There  is  required  to  be  annexed  to  all  accounts  a  statement 
or  list  of  the  securities,  investments  and  assets  of  which  the 
balance  of  the  estate  in  accountant's  hands  consists,  and  a  state- 
ment of  all  changes  made  in  the  securities  since  the  filing  of  the 
inventory,  or  since  the  last  settlement. 

There  is  also  required  to  be  annexed  to  the  account  a  peti- 
tion for  the  allowance  thereof  (see  forms  224-228  infra),  and 
also  for  the  allowance  of  commissions  and  counsel  fees,  if  the 
accountant  intends  to  apply  therefor.  It  is  not,  however, 
necessary  to  specify  the  amount  of  the  commissions  or  counsel 
fee  for  which  application  will  be  made.  A  simple  statement 
that  such  an  application  will  be  made  is  sufficient. 

Notice  of  Settlement  of  Account. 

One  month's  notice  of  accountant's  intention  to  settle  his  ac- 
count is  required  to  be  given  by  him,  which  notice  in  substance 
states  that  on  a  day  therein  named  he  will  apply  to  the  Or- 
phans' Court  for  a  settlement  of  his  account,  and  also  (see  form 
222  infra)  for  counsel  fees  and  commissions,  if  he  intends  to 
apply  therefor.  This  notice  is  required  to  be  pul)]ishcd  once  a 
week  for  one  month  in  a  newspaper  circulating  within  the 
county ;  and  it  has  been  held  that  in  order  to  comply  with  this 
provision,  five  insertions  are  necessary.  The  notice  is  also  re- 
quired to  be  posted  in  five  of  the  principal  places  of  the  county 


856  Probate  Law  and  Practice. 

for  the  same  period  of  time,  and  a  copy  mailed  to  all  persons 
interested  therein,  one  month  before  the  day  whereon  the  ac- 
count is  noticed  for  settlement.  Proof  of  the  due  publication, 
posting  and  mailing  of  such  notice  is  required  to  be  filed  with 
the  Surrogate  before  the  day  fixed  for  the  settlement  of  the 
account. 

The  statute  provides  that  in  the  case  of  accounts  of  guard- 
ians and  trustees,  in  lieu  of  the  publication,  posting  and  mailing 
of  the  notice  of  settlement,  accountant  may  issue  citations  to 
all  persons  in  interest,  which  may  be  served  by  the  guardian 
or  trustee  or  any  person  in  his  behalf.  Proof  by  affidavit  of 
such  service  is  required  to  be  filed  with  the  surrogate.  A  cita- 
tion must,  however,  in  all  cases  issue  on  the  final  accounting 
of  guardians  or  trustees. 

It  is  to  be  observed  that  the  Orphans'  Court  is  without  juris- 
diction to  allow  an  account  unless  notice  of  the  settlement 
thereof  has  been  given  as  provided  by  law,  and  the  same  has 
been  audited  and  stated  by  the  Surrogate  and  reported  to  the 
court  for  settlement. 

When  Account  to  be  Filed. 

The  account,  together  with  all  vouchers  and  receipts  for 
payments  and  disbursements  claimed  therein,  is  required  to  be 
filed  in  the  office  of  the  Surrogate  at  least  twenty  days  previous 
to  the  day  on  which  said  account  is  noticed  for  settlement,  and 
the  Surrogate  is  prohibited  from  presenting  the  account  for 
settlement  unless  the  vouchers  have  been  so  filed  with  him. 

Allowance  of  Account  by  Court. 

Upon  the  day  for  which  the  account  has  been  noticed  for  set- 
lement,  or  the  day  to  which  such  settlement  has  been  adjourned, 
the  Surrogate,  who  has  in  the  meantime  audited  and  stated  the 
account,  that  is  to  say,  examined  it  and  ascertained  whether 
there  was  a  proper  voucher  for  every  item  of  disbursement 
claimed  therein,  and  the  account  appears  to  be  correct  upon  its 
face,  reports  the  account  to  the  Orphans'  Court  for  settlement. 
If  the  Surrogate  finds  any  errors  in  the  account,  it  is  his  duty 
to  call  the  same  to  the  attention  of  the  court. 

Upon  the  presentation  of  the  account,  accountant  may  ask 
for  commissions  and  counsel  fees,  if  he  has  given  notice  of  his 


Accounting.  S57 

intention  to  apply  therefor.  After  examining  the  account  anil 
the  report  of  the  Surrogate,  the  court,  if  satistied  .with  the  same, 
will  make  its  decree  allowing  the  account. 

Application  for  Counsel  Fees. 

In  an  application  for  counsel  fees,  it  should  be  kept  clearly 
in  mind  that  the  court  is  not  permitted  to  allow  counsel  fees 
for  services  such  as  preparing  the  account  or  inventory,  gath- 
ering together  the  assets  of  the  estate,  etc.,  which  the  account- 
ant is  required  by  law  to  perform,  and  for  which  he  is  com- 
pensated by  his  commissions.  Counsel  fees  can  only  be  al- 
lowed for  legal  services  rendered  to  accountant  of  such  a  char- 
acter that  a  layman  of  ordinary  intelligence  would  not  be  able 
to  perform  them.  Where  the  counsel  fee  applied  for  is  large, 
having  regard  to  the  size  and  the  apparent  difficulties  in  admin- 
istering the  same  as  disclosed  by  the  account,  the  application 
should  be  accompanied  by  an  affidavit  of  counsel,  setting  forth 
in  detail  the  nature  and  necessity  of  such  services. 

Where  the  accountant  is  himself  a  member  of  the  bar,  no 
counsel  fee  can  be  allow^ed  to  him  under  any  circumstances. 
He  will,  however,  be  allowed  counsel  fees  paid  to  counsel  for 
conducting  litigation  or  for  assistance  rendered  in  matters  of 
unusual  difficulty,  but  not  for  assistance  in  connection  with  the  , 
problems  which  ordinarily  arise  in  the  administration  of  an 
estate. 

Application  for  Commissions. 

Where  the  amount  passing  through  the  hands  of  an  executor, 
administrator  or  trustee  exceeds  in, value  the  sum  of  fifty  thou- 
sand dollars,  or  where,  in  the  case  of  a  guardian,  it  exceeds 
the  sum  of  twenty  thousand  dollars,  the  application  must  be 
accompanied  by  an  affidavit  of  the  applicant,  setting  forth  the 
pains,  trouble  and  risk  incurred  by  him  in  the  settling  of  the 
estate. 

In  other  cases,  a  simple  oral  application  is  all  that  is  re- 
quired. 

Commissions  on  Income. 

Where  an  executor,  administrator  or  trustee  has  in  his  hands 
moneys,  the  income  of  which  he  is  rec|uircd  to  pay  to  a  person 


858  Probate  Law  and  Practice. 

(luring  a  certain  period,  and  upon  the  happening  of  a  certain 
event  to  pay  the  remainder  to  another,  the  court  is  authorized 
to  allow  such  commissions  on  the  income  so  collected  by  him 
as  will  compensate  him  for  his  pains,  trouble  and  risk,  not  ex- 
ceeding, however,  five  per  cent,  on  the  sum  so  collected. 

Guardians  are  not  allowed  commissions  on  income  as  income. 
The  total  amount  of  principal  and  income  passing  through 
their  hands  is  added  together,  and  commissions  at  the  statu- 
tory rate  computed  upon  the  sum  so  found. 

Adjustment  of  Commissions  Between  Co-executors. 

Where  there  are  two  or  more  executors  or  administrators, 
an  allowance  of  commissions  to  them  does  not  carry  with  it  an 
implication  that  such  commissions  are  to  be  divided  equally 
among  them.  If  difierences  arise  as  to  the  division  of  such 
commissions,  application  may  be  made  by  any  of  the  executors 
to  the  Orphans'  Court,  by  verified  petition  upon  five  days' 
notice  to  his  co-executors,  for  an  order  fixing  and  determining 
the  proportion  of  the  commissions  which  each  shall  receive. 

In  such  a  proceeding,  the  court  will  take  the  testimony  of 
the  several  executors  or  administrators,  and  of  such  other  wit- 
nesses as  they  may  produce,  and  will  ascertain  as  nearly  as  may 
be  the  services  performed  by  each,  and  apportion  the  com- 
missions among  the  several  executors  and  administrators  in 
accordance  with  such  services  respectively  rendered  by  each. 


II.  ACCOUNT  BY  REPRESENTATIVE  OF  DECEASED 
EXECUTOR,  ETC. 

General  Remarks. 

If  an  executor,  administrator,  guardian  or  trustee  dies  with- 
out having  fully  administered  the  estate,  his  executor  or  ad- 
ministrator may  file  an  account  of  the  receipts  and  disburse- 
ments of  the  said  deceased  executor,  guardian  or  trustee,  in  his 
lifetime,  of  the  assets  of  the  estate  which  came  to  his  hands. 


ACCOU  NTl  NG.  859 

Practice  on  Accounting. 

The  same  practice  in  regard  to  the  form  of  account  and  no- 
tice of  settlement,  etc..  obtains  in  accounts  of  this  character  as 
in  the  case  of  an  ordinary  account,  except  that  in  the  allow- 
ance of  commissions,  the  deceased  executor,  etc.,  is  only  al- 
lowed the  proportionate  amount  of  the  commissions  earned  by 
him  computed  upon  the  principles  adopted  in  the  case  of  inter- 
mediate accounts  of  trustees,  (which  see  infra). 


III.  TRUSTEES'    ACCOUNTS. 


General  Remarks. 

]\Iuch  confusion  is  often  caused  l)y  the  blending  together  of 
accounts  in  a  case  where  the  same  person  is  appointed  by  the 
will  both  executor  and  trustee ;  and  in  this  connection,  it  must 
be  borne  in  mind  that  in  order  to  constitute  an  appointment  as 
a  trustee,  it  is  not  necessary  that  the  word  trustee  be  used  in 
the  will.  If  the  testator  appoints  an  executor  and  confers  upon 
him  duties  foreign  to  those  of  an  executor,  and  which  can  only 
be  performed  by  a  trustee,  he  is  constituted  the  trustee  under 
the  will,  though  the  word  trustee  is  not  employed. 

The  duties  of  an  executor  and  trustee  differ  radically,  the 
only  functions  of  an  executor  being  to  gather  together  the  as- 
sets of  the  estate  and  pay  therefrom  all  debts  of  the  testator, 
and  the  legacies  mentioned  in  the  will,  and  then  to  turn  the  bal- 
ance over  to  the  person  entitled  by  law  to  receive  it.  In  a  case 
where  the  same  person  is  both  executor  and  trustee  under  a 
will  wdiich  contains  the  very  common  provision  of  providing 
for  the  payment  of  the  income  from  decedent's  estate  to  cer- 
tain persons  during  the  lifetime  of  another,  and  upon  the  death 
of  the  life-tenant,  directs  the  principal  of  the  fund  to  be  paid 
to  others,  tlie  duty  of  the  executor  is  to  proceed  with  the  ad- 
ministration of  the  estate  as  though  the  will  contained  no  trust 
provisions,  to  gather  together  the  assets  of  the  estate,  pay  all 
debts  of  the  testator  and  legacies  mentioned  in  said  will.  ;ind  to 


86o  Probate  Law  and  Practice. 

settle  his  final  account  as  executor  at  the  expiration  of  one  year, 
or  as  soon  thereafter  as  possible,  and  turn  over  the  balance  so 
ascertained  to  the  persons  entitled  by  law  to  receive  the  same, 
which  in  this  case  would  be,  of  course,  himself  as  trustee,  after 
which  he  proceeds  as  trustee;  and  the  balance  ascertained 
upon  the  passing  of  his  final  account  as  executor,  will  be  that 
with  which  he  is  chargeable  as  trustee. 

It  is  necessary  to  keep  clearly  in  mind  the  meaning  of  the 
term  final  account,  as  used  in  this  connection.  The  word  final 
does  not  mean  the  last  of  several  accounts,  but  relates  to  the 
nature  of  the  account ;  that  is  to  say,  where  the  accountant  is 
in  a  position  to  distribute  the  balance  found  in  his  hands  In-  the 
account  in  question.  Take  for  illustration,  the  case  of  a  will 
directing  the  payment  of  income  to  one  during  his  life,  with 
remainder  to  another,  and  appointing  the  same  person  exec- 
utor and  trustee,  where  the  testator  died  seized  of  numerous 
tracts  of  real  property  and  conferred  upon  his  executor,  as 
executor,  a  power  of  sale.  The  executor  finds  it  undesirable 
to  sell  any  of  the  real  property  at  the  time  when  he  is  ready  to 
pass  his  account  in  respect  to  the  personalty,  and  he  according- 
ly proceeds  to  have  his  account  allowed.  The  balance  in  his 
hands  has  been  fully  administered,  and  he  is  in  a  position  to 
pay  the  same  over  to  himself  as  trustee.  This,  therefore,  is  a 
final  account. 

If  it  so  happens  that  during  subsequent  years,  he  finds  it 
necessary  or  desirable  to  sell  some  of  the  testator's  real  estate, 
he  may  again  account  as  executor,  in  which  case  he  would 
charge  himself  with  the  balance  shown  by  his  previous  ac- 
count, and  in  addition  thereto,  with  the  proceeds  of  the  realty  so 
sold  by  him,  and  should  pray  allowance  for  the  balance  shown 
in  the  previous  account  as  paid  over  to  himself  in  his  capacity 
as  trustee,  and  also  with  any  other  expenses,  either  in  connec- 
tion with  the  sale  of  the  realty  or  the  administration  of  the 
decedent's  estate.  He  then  strikes  his  balance  of  receipts  over 
expenditures,  and  the  sum  so  ascertained  is  that  which  he  is 
again  required  to  pay  to  himself  as  trustee;  and  this  account, 
therefore,  is  also  a  final  account. 
Notice  of  Settlement. 

The  statute  and  rules  make  the  same  provisions  in  regard  to 
notice   of    settlement   of   a   trustee's   account,   whether   inter- 


Accounting.  86  i 

mediate  or  final,  including  the  posting  and  service  of  notice 
upon  parties  interested,  as  in  the  case  of  accounts  of  executors 
and  administrators  (which  see  supra).     A  citation  must,  how- 
ever, issue  upon  a  trustee's  final  account. 
Form  of  Account. 

A  trustee's  account  is  required  to  be  verified  by  afiidavit,  and 
to  have  annexed  thereto  a  petition  for  the  allowance  thereof 
and  a  statement  concerning  the  assets  in  his  hand,  in  the  same 
manner  as  the  accounts  of  executors  and  administrators  ( \\liicli 
see  supra). 

The  account  of  a  trustee  differs  radically  from  that  of  an 
executor  or  administrator,  inasmuch  as  he  is  accountable  to 
two  classes  of  persons.  The  life-tenant,  on  the  one  hand,  is 
interested  in  knowing  that  the  trustee  has  charged  himself 
with  all  income  received,  and  that  he  is  receiving  all  the  income 
which  the  estate  is  capable  of  producing,  and  also  to  know 
what  disbursements  the  trustee  is  charging  off  against  the  in- 
come so  received  l\v  him ;  on  the  other  hand,  the  remainder- 
man is  interested  to  know  whether  the  fund  in  the  hands  of  the 
trustee  is  properly  invested,  and  also  to  know  whether  the 
trustee  is  charging  against  the  corpus  of  the  estate,  which  will 
eventually  come  to  him,  disbursements  which  should  by  law  De 
paid  out  of  the  income.  It  is  perfectly  apparent,  therefore, 
that  a  trustee's  account  should  distinctly  separate  items  relat- 
ing to  corpus  and  income. 

•  A  trustee  should,  in  his  account,  in  the  first  place  charge  him- 
self with  the  balance  as  ascertained  by  his  executor's  account; 
and  if  between  the  filing  of  his  first  executor's  account  and  his 
account  as  trustee  several  accounts  have  been  filed  in  his  ca- 
pacity as  executor,  he  should  also  charge  himself  with  the 
tialances  as  shown  by  these  accounts.  He  should  then  pray  al- 
lowance for  all  expenditures  made  l)y  him  which  are  properly 
chargeable  against  the  corpus  of  the  estate,  and  then  strike  a 
balance  showing  the  amount  of  the  corpus  of  the  estate  in  his 
hands.  lie  should  then  ])rocced  to  charge  himself  with  all  in- 
come received  l)y  him,  tlien  jiray  allowance  for  all  cx])en(litures 
made,  which  are  properly  chargeable  against  income,  including, 
of  course,  i)ayments  to  the  life-tenant,  and  then  strike  a  l)al- 
ance  wliicli  will  sIimw  \hv  amotml  of  income  rcm;iining  in  his 


862  Pkobate  Law  and  Practice. 

hands.  These  two  balances  of  corpus  and  income  should 
never  be  blended,  inasmuch  as  they  go  in  different  directions, 
the  balance  of  corpus  to  the  remainderman,  the  balance  of  in- 
come to  the  life-tenant. 

Commissions. 

Commissions  are  allowed  for  the  faithful  performance  of 
the  trust  committed  to  the  trustee,  and  are  only  allowed  upon 
the  completion  of  the  trust.  And  so,  as  a  general  rule,  com- 
missions will  not  be  allowed  to  a  trustee  until  the  completion 
of  his  trust.  Where,  however,  a  trust  continues  over  a  long 
period  of  years,  and  the  trustee  has  performed  an  appreciable 
portion  thereof,  the  court  will  upon  the  passing  of  his  inter- 
mediate account  allow  him  a  sum  on  account  of  his  commis- 
sions. 

In  estimating  the  amount  to  be  allowed,  the  court  will  con- 
sider the  entire  period  during  which  the  trust  is  likely  to  con- 
tinue, the  portion  of  that  term  which  the  trustee  has,  at  the 
time  of  the  application  for  commissions,  served,  and  will  then, 
in  the  case  of  an  estate  over  fifty  thousand  dollars  in  value, 
fix  the  rate  at  which  the  trustee  will  be  entitled  to  compensation 
at  the  expiration  of  his  trust,  and  will  allow  him  a  sum  some- 
what less  than  the  proportionate  amount  earned. 

The  trustee  is,  of  course,  entitled,  upon  the  passing  of  every 
intermediate  account,  to  commissions  on  such  income  as  he  has 
collected. 


IV.  INTERMEDIATE  ACCOUNTS. 


General  Remarks.     \ 

Intermediate  accounts  are  of  two  classes  first,  where  an 
executor  or  administrator  has  been  unable  to  complete  the  per- 
formance of  his  duties  within  the  time  required  by  law,  and 
desires  to  present  his  account,  to  the  end  that  his  doings  up  to 
the  time  of  accounting  may  have  the  approval  of  the  court; 
and  second,  the  intermediate  account  of  a  guardian,  or  of  au 


Accounting.  863 

executor  and  trustee,  who  has  funds  in  his  hands  whicli  he  is 
required  by  law  to  retain  during  a  certain  period  of  time,  dur- 
ing which  he  is  required  to  pay  the  income  to  one,  and  the  re*- 
mainder  of  the  corpus  over  to  others  upon  the  happening  of  a 
certain  event.  Accounts  of  the  first  class  above  mentioned  are 
not,  in  a  strict  sense,  intermediate ;  they  partake  more  of  the 
nature  of  partial  accounts.  What  is  hereinafter  said  relates 
only  to  accounts  of  the  second  class  above  described. 

Form  of  Account. 

Intermediate  accounts  are  required  to  have  annexed  thereto 
a  petition,  (see  form  225  infra),  a  schedule  of  assets  and  state- 
ment as  to  changes  of  investments  since  the  prior  account  (see 
form  232  infra),  and  to  be  verified  in  the  same  manner  as  final 
accounts  (which  see  supra).  Intermediate  accounts  of  trus- 
tees should  show  the  receipts  from  corpus,  the  expenditures 
from  corpus,  and  strike  a  balance  of  corpus  remaining  on  hand, 
and  also  the  receipts  from  income  and  the  expenditure  from 
income,  and  exhibit  the  balance  of  income  remaining  in  the 
hands  of  the  trustee.  All  that  was  said  above  in  regard  to  the 
form  of  trustees'  accounts  is  applicable  to  their  intermediate 
accounts.  In  the  case  of  a  second  or  other  account,  the  ac- 
countant should  charge  himself  in  the  first  instance  with  the 
balances  shown  in  his  prior  account,  both  of  corpus  and  of  in- 
come. 

Notice  of  Settlement. 

Notice  of  settlement  of  an  intermediate  account  is  required 
by  publishing,  posting  and  mailing  the  same,  in  the  same  man- 
ner as  is  required  in  the  case  of  a  final  account  (whicH  see 
supra). 

Commissions. 

All  that  was  said  above,  where  the  question  of  commissions 
on  trustees'  accounts  is  considered,  is  applicable  to  intermediate 
accounts  of  guardians  and  trustees,  and,  indeed,  to  partial  ac- 
counts of  executors,  except  that  in  the  last  named  case  the  sum 
upon  which  commissions  are  computed  is  usually  the  amount 
of  disbursements  shown  in  the  account.  -Guardians,  as  has 
already  been  seen,  are  not  entitled  to  commissions  on  income 
.S6 


864  pROBATD  Law  axd  Practice. 

Effect  of  Decree  on  Intermediate  Account. 

It  is  important  to  bear  in  mind  the  distinction  between  the 
effect  of  a  decree  on  an  intermediate  account  of  a  guardian, 
and  that  of  a  trustee,  or  the  partial  account  of  an  executor  or 
administrator.  An  intermediate  account  of  a  guardian  is  not 
allowed  by  the  court;  it  is  merely  ordered  to  1)e  entered  of 
record.  The  effect  of  the  decree  is  only  to  make  the  account 
prima  facie  correct,  and  to  throw  upon  any  person  thereafter 
attacking  it  the  burden  of  proving  that  the  items  objected  to 
are  erroneous. 

The  intermediate  account  of  a  trustee,  or  the  partial  account 
of  an  executor  or  administrator,  is  allowed  by  the  court;  and 
the  decree  allowing  the  same  cannot  be  attacked  except  for 
fraud  or  mistake. 


V.  PROCEEDINGS  TO  COMPEL  ACCOUNTING. 


General  Remarks. 

Where  an  executor,  administrator,  guardian  or  trustee  neg- 
lects to  file  his  account  as  required  by  law,  there  are  various 
methods  of  compelling  him  so  to  do. 

Where  Executor,  Etc.,  Fails  to  Account  Within  One  Year. 

Where  an  executor,  administrator,  guardian,  or  trustee  neg- 
lects to  file  his  account  within  one  year  from  the  time  of  the 
grant  of  letters  to  him,  any  person  in  interest  may  file  with  the 
vSurrogate  a  verified  petition  setting  up  the  default  of  the  exec- 
utor, etc.,  and  disclosing  the  fact  that  he  is  a  party  in  interest 
(see  form  245  infra)  ;  and  the  Surrogate  may  thereupon  issue 
a  citation  requiring  such  executor,  etc..  to  account  at  the  next 
term  of  the  Orphans'  Court. 

Where  Executor,  Etc.,  Is  In  Default  for  Two  Years. 

Where  an  executor,  administrator,  guardian  or  trustee  neg- 
lects for  two  years  after  the  grant  of  letters  to  file  his  account, 
any  person  in  interest  may  file  with  the  Surrogate  a  verified 


Accounting.  ^'65 

petition  setting  up  the  de fault  of  the  executor,  etc.,  and  the  fact 
that  petitioner  is  a  party  in  interest  (see  form  247  infra).  It 
thereupon  becomes  the  duty  of  the  Surrogate  to  report  such 
default  to  the  Orphans'  Court,  which  court  may  in  its  discretion 
by  order  direct  the  Surrogate  to  cite  the  executor  to  account 
at  such  time  as  the  court  may  chrect. 

Application  May  Be  Made  to  Orphans'  Court. 

In  case  an  executor,  administrator,  guardian  or  trustee  has 
faikd  to  file  his  account  for  one  year  from  the  date  of  his  ap- 
pointment, any  person  in  interest  may  petition  the  Orphans' 
Court,  setting  up  such  default  and  the  nature  of  his  interest 
(see  form  251  infra),  and  the  court  will  thereupon  issue  a  rule, 
returnable  at  such  time  as  the  court  may  direct,  requiring  such 
executor,  etc.,  to  show  cause  why  he  should  not  be  required  to- 
file  his  account,  which  rule  may  direct  the  manner  of  its  service. 
Upon  the  return  of  the  rule,  if  the  executor,  etc.,  is  unable  to 
show  cause  why  he  should  not  file  his  account,  the  court  may 
by  order  direct  him  so  to  do.  Failing  to  obey  such  order  is 
punishable  as  a  contempt. 


VI.   METHOD  OF  OBJECTING  TO  ACCOUNT, 
General  Remarks. 

Any  person  in  interest  desiring  to  object  to  an  account, 
whether  intermediate  or  final,  or  to  any  item  thereof,  nftiy  do 
so  by  filing  exceptions  thereto  with  the  Surrogate  at  any  time 
before  the  allowance  of  the  account  l^y  the  court.  Proceed- 
ings upon  exceptions  to  an  account  are  in  the  nature  of  a  bill' 
for  discovery  in  Chancery,  and  the  Orphans'  Court  is  invested 
with  all  the  jurisdiction  exercised  by  the  Court  of  Chancery  in^ 
similar  cases.  Thus,  the  Orphans'  Court  has  power  to  charge 
an  executor,  etc.,  on  the  ground  of  negligence,  or  to  determine- 
whether  exceptants,  who  claim  to  be  creditors  of  the  estate,, 
are  in  fact  creditors,  and  as  such  interested  in  the  settlement 
of  the  estate;  and  so  it  may  apply  the  equitable  rule  of  estop- 
pel. 


866  Probate  Law  and  Practice. 

Who  May  Except. 

Exceptions  can  only  be  filed  by  a  person  in  interest,  that  is 
to  say,  one  who  will  receive  benefit  if  the  exception  be  sus- 
tained. If  exceptions  be  filed  by  a  person  whom  the  account- 
ant conceives  not  to  be  a  party  in  interest,  the  proper  procedure 
is  to  move  to  strike  out  such  exceptions  on  notice  to  the  ex- 
ceptant, and  upon  such  motion  the  court  will,  if  necessary,  take 
testimony  and  inquire  into  the  interest  of  the  exceptant,  and 
if  it  finds  that  he  is  without  interest  in  the  proceeding,  will 
strike  out  the  exceptions. 

Form  of  Exceptions. 

Exceptions  to  an  account  must  be  specific,  that  is  to  say,  they 
should  point  out  the  alleged  infirmity  in  the  account  in  such 
manner  that  accountant  will  be  informed  as  to  the  nature  of 
the  objection;  they  must  also  specify  the  grounds  on  which 
the  exception  is  based. 

Hearing  on  Exceptions. 

As  has  already  been  seen,  exceptions  to  an  account  must  be 
filed  before  the  day  on  which  the  account  is  noticed  for  settle- 
ment, or  before  the  day  to  which  the  settlement  has  been  con- 
tinued by  the  court,  on  which  day  the  account,  with  the  ex- 
ceptions thereto,  comes  before  the  court,  which  may  thereupon 
either  proceed  at  once  to  hear  the  matter,  refer  the  same  to  a 
master,  or  fix  a  day  for  hearing  the  same.  In  the  larger  coun- 
ties, the  practice  is  to  have  the  court  fix  a  day  for  hearing  the 
exceptions,  or,  in  some  instances,  to  refer  them  to  a  master. 

As  has  already  been  seen,  exceptions  to  an  account  partake 
of  the  nature  of  a  discovery  in  the  Court  of  Chancery.  In  the 
first  instance,  the  exceptant  calls  the  accountant  to  the  stand, 
and  examines  him  in  regard  to  the  particular  items  in  the  ac- 
count excepted  to.  Upon  such  examination,  the  exceptant  has 
all  of  the  l.atitude  allowed  upon  cross-examination,  but  does 
not  make  the  accountant  his  witness  in  the  sense  of  being  bound 
by  his  testimony;  and  the  exceptant  is  permitted  to  probe  the 
conscience  of  the  accountant  as  fully  as  in  the  case  of  a  dis- 
covery in  the  Court  of  Chancery.  After  the  exceptant  has 
concluded  his  examination  of  the  accountant,  counsel  for  the  ac- 


Appointment  of  Trustees.  867 

countant  may  cross-examine  upon  the  testimony  given  by  ac- 
countant. 

After  the  cross-examination  of  the  accountant  is  concluded, 
the  exceptant  proceeds  to  examine  such  other  witnesses  as 
may  be  produced  by  him  in  support  of  his  exceptions.  These 
witnesses  are,  however,  the  witnesses  of  exceptant  and 
he  is  restricted  in  his  examination  of  them  by  the  ordinary 
rules  applicable  to  the  direct  examination  of  witnesses.  Wit- 
nesses so  called  by  the  exceptant  are  subject  to  cross-examina- 
tion by  the  accountant. 

After  the  exceptant  has  put  in  his  case,  the  accountant  is  per- 
mitted to  call  witnesses  in  support  of  his  account,  and  in  re- 
buttal of  the  testimony  produced  by  the  exceptant;  the  latter 
may  in  turn,  after  the  closing  of  the  accountant's  case,  produce 
testimony  in  rebuttal  of  accountant's  witnesses. 

Burden  of  Proof. 

Where  an  exceptant  seeks  to  surcharge  the  accountant  with 
items  not  accounted  for  by  him,  the  burden  of  proof  is  upon 
the  exceptant.  Where,  however,  the  exception  is  to  items  in 
discharge  of  the  account,  the  burden  of  proving  the  correct- 
ness of  the  items  so  prayed  allowance  for  is  on  the  accountant. 


APPOINTMENT  OF  NEW  TRUSTEES. 


General  Remarks. 

The  Orphans'  Court  has  power,  in  case  any  trustee  appointed 
by  last  will  neglects  or  refuses  to  act,  dies,  or  is  removed  or 
discharged  before  the  execution  and  completion  of  the  trust 
committed  to  him,  to  appoint  some  suitable  person  to  execute 
such  trust. 

Practice  Upon  Application. 

A  proceeding  of  this  character  is  initiated  by  petition  (see 
form  255  infra).  Five  days  notice  of  the  application  is  re- 
quired to  be  given  to  all  persons  in  interest  or  to  such  of  them 


868  Probate  Law  and  Practice. 

as  the  court  shall  by  its  order  direct,  when  they  reside  in  this 
state,  and  at  least  thirty  days'  notice  to  non-residents,  which 
last  notice  may  be  sent  by  mail.  Provision  is  made  by  rule  for 
service  ui)on  minors  or  persons  iion  compos  mentis.  Xotice 
cf  the  application  may  be  dispensed  with  if  the  applicant  pro- 
duces the  consent  of  all  the  persons  in  interest  to  the  appoint- 
ment of  the  person  petitioned  for,  or  the  petitioner  may  obtain 
a  rule  to  show  cause  why  such  appointment  should  not  be  made, 
which  rule  may  direct  the  manner  of  its  service  upon  the 
parties  interested.  The  latter  course  is  to  be  preferred,  espe- 
cially in  a  case  where  there  are  numerous  non-resident  persons 
in  interest. 

Upon  presenting  the  matter  to  the  court  on  the  day  upon 
which  the  matter  is  noticed  for  hearing  or  upon  the  return  day 
of  the  rule  to  show  cause,  the  court  will  examine  into  the  mat- 
ter, and  if  there  be  any  ol^jections  to  the  appointment  of  a  trus- 
tee or  of  the  person  proposed,  will  hear  and  determine  such  ob- 
jections, and  will  make  its  decree  appointing  some  fit  person 
trustee,  which  order  will  also  fix  the  bond  to  h&  given  by  the 
new  trustee,  upon  the  same  principles  upon  which  the  bonds  of 
administrators  are  fixed. 


PROCEEDINGS  FOR  DISCOVERY. 


General  Remarks. 

If  any  person  interested  in  an  estate  has  reason  to  believe 
that  the  executor  or  administrator  of  such  estate  is  wasting, 
embezzling  or  misapplying  it,  he  may  apply  to  the  Orphans' 
Court  for  an  order  requiring  such  executor,  etc.,  to  make  dis- 
covery before  said  court  as  to  the  condition  of  the  estate.  If 
any  executor,  etc.,  has  reason  to  believe  that  any  person  has  in 
his  or  her  possession  personal  property  of  the  estate  of  his 
testator,  etc.,  or  has  knowledge  of  the  existence  or  whereabouts 
of  any  such  personal  property,  the  Orphans'  Court  may  by 
order  require  such  person  to  appear  before  it  and  make  dis- 


PkockivDings  fok  DiscovKkv.  869 

oovery  as  to  his  possession  or  knowledge  of  the  whereabouts 
or  existence  of  such  personal  property,  and  may  require  the 
production  of  books  and  papers  or  other  documents  which  will 
tend  to  make  the  discovery  complete. 

Practice  on  Discovery  by  Executor. 

W  here  a  person  in  interest  desires  to  call  upon  the  executor 
to  make  discovery  of  the  condition  of  the  estate,  the  practice  is 
to  present  to  the  court  a  petition,  (see  form  125  infra).  If  a 
prima  facie  case  for  the  intervention  of  the  court  is  alleged 
therein,  a  rule  will  be  allowed  calling  upon  the  executor,  etc., 
to  appear  before  the  court,  and  show  cause  why  he  should  not 
make  the  discovery  prayed  for ;  and  if  upon  the  return  of  such 
rule  the  executor,  etc.,  is  unable  to  present  to  the  court  any 
reason  why  such  discovery  should  not  be  had,  the  court  will 
make  its  order  requiring  him  to  appear  before  it  on  a  day 
therein  named  and  make  the  discovery  prayed  for. 

On  the  day  named  in  the  above-mentioned  order  the  peti- 
tioner calls  the  executor  to  the  stand  to  testify  under  oath  as  to 
any  matters  relating  to  the  estate  concerning  which  he  chooses 
to  question  him.  The  petitioner  does  not  thereby  make  the 
executor  his  witness  in  the  sense  of  being  bound  by  his  testi- 
mony, as  the  executor  appears  merely  for  the  purpose  of  dis- 
covery, and  the  petitioner  is  permitted  to  examine  him  with  all 
the  latitude  allowed  upon  a  cross-examination.  The  petitioner 
has  the  privilege  of  producing  other  witnesses  in  support  of 
his  contentions,  and  also  to  contradict  the  testimony  of  the 
executor.  After  the  petitioner  has  concluded  his  case,  the 
executor  is  permitted  to  present  testimony  in  rebuttal  to  the 
case  made  by  the  petitioner,  and  the  court  may  take  such  action 
for  the  protection  of  the  estate  as  may  be  taken  in  like  cases  in 
the  Court  of  Chancery. 

Proceedings  by  Executor  for  Discovery  of  Assets. 

This  proceeding  is  very  similar  to  tliat  in  which  it  is  sought 
to  have  an  executor  make  discovery,  and  is  used  in  a  case 
where  the  executor  or  administrator  believes  that  some  person 
has  assets  of  the  estate  in  his  possession,  or  has  knowledge  as 
to  the  whereabouts  of  assets  of  the  estate,  which  tlie  executor 
is  unable  to  locate. 


870  Probate  Law  and  Practice. 

This  proceeding  is  initiated  by  a  petition  which  alleges  all  the 
facts  in  the  possession  of  the  executor  (see  form  128  infra). 
An  order  is  thereupon  made  by  the  court,  requiring  the  person 
whom  the  executor  alleges  to  have  in  his  possession  assets  of 
the  estate,  or  to  have  knowledge  of  the  whereabouts  of  such 
assets,  to  appear  before  the  court  on  a  day  therein  named,  to 
make  discovery  in  regard  to  the  allegations  contained  in  the 
petition.  The  proceedings  thereafter  are  identical  with  those 
in  a  case  where  an  executor  is  ordered  to  appear  to  make  dis- 
covery in  regard  to  the  condition  of  the  estate,  (which  see 
supra) . 


RELIEF  OF  SURETIES. 


Proceedings  by  Surety  to  Require  Executor  to  Secure  Him 
from  Loss. 

If  the  surety  on  the  bond  of  any  executor,  administrator, 
guardian  or  trustee  believes  that  such  executor,  etc.,  is  wast- 
ing or  mismanaging  the  estate,  whereby  the  surety  may  be- 
come liable  to  loss  or  damage,  he  may  present  his  petition  to 
the  Orphans'  Court,  praying  relief  in  the  premises  (see  form  71 
infra)  ;  and  the  court  may  thereupon  make  an  order  requiring 
such  executor,  etc.,  to  show  cause  why  he  should  not  account 
to  the  surety  and  secure  him  from  loss.  It  is  the  better  prac- 
tice, although  it  is  not  always  followed,  for  the  executor  to 
file  his  answer  under  oath,  traversing  the  allegations  of  the  pe- 
tition. 

Upon  the  day  fixed  in  the  rule  to  show  cause,  the  executor 
will  be  required  to  submit  himself  to  cross-examination  by  the 
surety  as  to  the  facts  contained  in  his  petition ;  and  if  the  court 
is  satisfied  that  sufficient  reason  therefor  exists,  it  may  order 
such  executor,  etc.,  to  render  an  account  of  his  administration 
to  such  surety  on  or  before  a  certain  day,  and  will  continue  the 
proceeding  until  a  day  sufficiently  far  distant  to  enable  the 
surety  to  examine  the  account  produced  by  the  executor,  etc. 


Discharge  of  Executors,  Etc.  871 

L'poii  this  last  named  day,  the  executor  again  presents  him- 
self for  cross-examination  upon  the  account  rendered  by  him 
to  his  surety;  and  if  it  appears  that  such  executor,  etc.,  ha? 
embezzled,  wasted,  misapplied  or  mismanaged  the  estate,  the 
court  will  direct  him  to  give  separate  security  to  his  surety  for 
the  due  payment  of  the  balance  remaining  in  his  hands  to  the 
parties  entitled  thereto. 

Relief  of  Sureties  from  Further  Liability. 

If  any  of  the  sureties  upon  the  bond  of  any  executor,  ad- 
ministrator, guardian  or  trustee  desire  to  be  released  from  re- 
sponsibility on  account  of  the  future  acts  of  such  executor,  etc., 
such  surety  may  make  application  to  the  Orphans'  Court  by  pe- 
tition (see  form  65  infra),  and  the  court  will  thereupon  direct 
the  Surrogate  to  issue  a  citation  to  such  executor,  etc.,  requir- 
ing him  to  appear  before  the  court  to  state  and  settle  his  ac- 
count of  the  estate  that  has  come  into  his  hands,  and  to  give 
new  sureties  in  the  usual  form  for  the  discharge  of  his  duties. 
This  citation  must  be  served  by  the  sheriff. 

The  account  required  from  the  executor,  etc.,  under  these 
circurmtances,  is  noticed  for  settlement  and  audited  and  stated 
by  the  Surrogate  in  the  same  manner  as  the  accounts  of  execu- 
tors, etc.,  under  ordinary  circumstances,  and  the  requirement 
of  the  citation  is  satisfied  by  the  filing  of  such  account  and  the 
noticing  of  the  same  for  settlement.  Upon  the  passing  of  the 
account,  the  executor,  etc.,  gives  a  new  bond,  which  must  be 
approved  by  the  court,  which  thereupon  makes  its  order  reliev- 
mg  the  sureties  upon  the  original  bond  from  any  liability  for 
the  acts  of  sueh  executor,  etc.,  subsequent  to  the  entry  of  such 
order.  He  remains  liable,  however,  for  any  acts  of  such  exec- 
utor, etc.,  prior  to  the  entry  of  such  order. 

If  the  executor  neglects  to  obey  the  citation  to  account  and 
give  new  sureties,  he  may  be  punished  as  for  a  contempt. 


DISCHARGE  OF  EXECUTORS,  ADMINISTRATORS, 
GUARDIANS  AND  TRUSTEES. 

General  Remarks. 

An  executor,  administrator,  guardian  or  trustee  has  no  ab- 
solute right  to  be  discharged  from  the  performance  of  his  du- 


872  Probate  Law  and  Practice. 

lies  as  such  for  the  mere  reason  that  they  have  become  bur- 
densome to  him.  The  court  will  only  grant  such  relief  where 
upon  examination  into  the  matter,  it  appears  that  there  is  suffi- 
cient reason  for  such  discharge ;  and  if  the  estate  will  be  bene- 
fited by  the  denial  of  such  application,  whether  by  reason  of 
the  peculiar  abilities  of  the  applicant  under  the  special  circum- 
stances of  the  case,  or  for  other  reasons,  the  court  will  deny 
the  application. 

Practice  on  Application. 

An  application  by  an  executor,  etc..  for  his  discharge  from 
the  further  performance  of  his  duties  is  by  petition  to  the 
Orphans'  Court  (  see  form  207  infra),  and  upon  thirty  days'  no- 
tice to  all  persons  in  interest,  unless  the  court  shall  otherwise 
order.  This  notice  may  be  served  upon  non-residents  by  mail- 
ing. 

If  upon  the  day  for  which  the  matter  is  noticed  for  hearing 
the  court,  either  from  examination  of  the  moving  papers,  or  by 
such  testimony  as  it  may  require,  is  satisfied  that  there  is  suffi- 
cient reason  why  such  executor,  etc..  should  be  discharged,  it 
will  order  that  he  be  discharged  from  all  further  duties  of  his 
office  except  accounting  for  and  paying  over  the  assets  in  his 
hands. 

If  there  be  more  than  one  executor  or  trustee,  all  may  join 
in  the  same  application  for  discharge ;  and  one  or  more  exec- 
utors or  trustees  may  apply  to  be  discharged  from  the  perform- 
ance of  any  particular  trust  imposed  upon  him  oi"  them  by  the 
will. 

Upon  the  discharge  of  a  sole  executor,  administrator,  guard- 
ian or  trustee,  the  court  will  appoint  a  suitable  person  to 
execute  the  trust  imposed  upon  the  person  so  discharged,  and 
will  require  the  administrator,  etc.,  appointed  in  his  place  to 
give  a  bond  for  the  faithful  performance  of  his  duties  in  such 
sum  as  the  court  shall  direct,  which  bond  must  be  approved  by 
the  court. 


Riv.MOVAL  OF  ExKCrTORS.  873 

REMOVAL   OF   EXECUTORS,   ETC. 

General  Remarks. 

The  power  of  the  Orphans' Court  to  remove  an  executor,  ad- 
ministrator, fjuar(Han  or  trustee  is  purely  statutory  ;  the  court 
has  no  jurisdiction  to  make  an  order  of  removal  cxcei)t  for  one 
of  the  grounds  specified  in  the  statute. 

Except  in  cases  of  fraud  or  embezzlement,  courts  are  slow- 
to  impose  upon  an  executor,  etc.,  the  stigma  of  removal,  and 
will  usually  do  so  only  where  it  clearly  appears  that  to  permit 
him  to  continue  to  act  is  certain  to  result  in  loss  to  the  estate ; 
and  even  in  a  case  where  it  appears  that  an  executor,  etc.,  has 
mismanaged  an  estate,  if  the  court  finds  it  possible  to  protect 
the  estate  from  further  loss  by  requiring  him  to  give  surety 
for  the  faithful  performance  of  his  duties,  it  will  usually  adopt 
that  course. 

Grounds  of  Removal. 

The  statute  provides  that  an  executor,  administrator,  guard- 
ian or  trustee  may  be  removed  for  the  following  reasons : 
Where  he  is  a  non-resident,  or  after  his  appointment  removes 
from  the  state,  and  neglects  to  proceed  in  the  administration  of 
the  estate :  where  after  his  appointment  he  becomes  of  un- 
sound mind ;  where  he  fails  to  file  his  inventory  or  account 
WMthin  the  time  prescribed  by  statute;  in  case  he  refuses  or 
neglects  to  perform  or  obey  any  order  or  citation  issued  by  the 
court  after  due  service  thereof  upon  him;  or  when  it  is  made 
to  appear  to  the  court  that  he  has  embezzled,  wasted  or  mis- 
applied any  part  of  the  estate  committed  to  his  custody  or  has 
abused  the  trust  and  confidence  reposed  in  him. 

Practice  on  Removal  of  Executors,  Etc. 

Aj)plication  for  the  removal  of  an  executor,  administrator, 
guardian  or  trustee  is  by  petition  (.see  form  2c)(j  infra  )  of  some 
person  in  interest,  upon  the  presentation  of  which,  if  the  al- 
legations therein  are  suf^cient,  the  court  will  make  its  order 
requiring  the  executor,  etc.,  to  show  cause  before  the  court  on 
a  day  therein  named  why  he  should  not  be  removed  as  such 
executor,  etc.  Upon  the  return  of  the  rule  to  show  cause,  the 
petitioner  calls  witnesses  to  support  the  allegations  contained 


874  Probate  Law  and  Practice. 

in  his  petition,  which  witnesses  are  subject  to  cross-examina- 
tion on  the  part  of  the  executor.  After  the  petitioner  has 
closed  his  case,  the  executor  may  offer  testimony,  either  of 
himself  or  of  witnesses,  in  denial  of  the  petitioner's  allegations, 
after  which  the  petitioner  is  permitted  to  offer  testimony  in 
rebuttal  of  that  offered  by  the  executor. 

Upon  the  removal  of  a  sole  executor,  administrator,  guard- 
ian or  trustee,  the  court  will  appoint  some  fit  person  to  per- 
form his  duties,  and  will  require  such  successor  to  give  bond 
for  the  faithful  performance  of  his  duties  in  such  sum  as  the 
court  shall  direct,  which  bond  must  be  approved  by  the  court. 

Duty  of  Removed  or  Discharged  Executor. 

Upon  the  removal  or  discharge  of  an  executor,  etc.,  it  is  his 
duty  to  forthwith  turn  over  to  his  successor  any  funds  of  the 
estate  then  remaining  in  his  hands,  and  at  the  next  term  of  the 
court  to  state  and  settle  his  account  in  the  same  manner  as  ac- 
counts of  executors,  etc.,  are  required  to  be  stated  and  settled 
under  ordinary  circumsances ;  and  it  is  the  duty  of  such  dis- 
charged or  removed  executor,  etc.,  within  sixty  days  after  his 
account  has  been  allowed,  to  pay  the  balance  shown  by  such 
account  to  be  due  to  his  successor.  Upon  the  allowance  of 
such  account,  he  will  be  allowed  such  commissions  as  he,  in  the 
discretion  of  the  court,  is  entitled  to ;  or  the  court  may  refuse 
to  allow  any  commissions,  or  may  make  such  order  respecting 
the  same  as  in  its  discretion  seems  advisable.  If  upon  the 
])assing  of  such  account  it  appears  that  upon  the  discharge  or 
removal  of  the  executor  he  turned  over  to  his  successor  in. 
office  a  sum  greater  than  that  shown  by  the  account  to  be  due, 
the  court  will  order  the  newly  appointed  executor,  etc.,  to  re- 
turn such  overpayment  to  him. 


DISTRIBUTION. 


General  Remarks. 

Upon  the  allowance  of  the  account  of  an  executor,  adminis- 
trator or  trustee,  it  becomes  his  duty  to  distribute  the  balance 


Distribution.  875 

ii.  his  hands,  as  ascertained  by  the  decree  allowing  the  account, 
to  the  persons  by  law  entitled  thereto.  In  cases  of  administra- 
tion, the  distribution  is,  of  course,  made  to  the  next  of  kin  of 
the  intestate;    in  case  of  a  will,  to  the  legatees  named  therein. 

The  executor  or  administrator  should  take  refunding  bonds 
and  releases  for  the  sums  so  paid  by  him  to  the  next  of  kin  or 
legatees,  and  file  the  refunding  bonds  and  have  the  releases 
recorded  in  the  office  of  the  surrogate.  Upon  the  filing  of  such 
refunding  bonds  and  releases  showing  the  distribution  by  him 
of  the  balance  in  his  hands  as  ascertained  in  the  decree  allow- 
ing his  account,  he  is  automatically  discharged,  as  are  his 
bondsmen,  from  all  liability  for  any  of  his  acts  up  to  the  time 
of  the  filing  of  the  account.  He  is  not,  however,  discharged 
as  executor  or  administrator ;  and  in  case  occasion  arises  there- 
after, either  by  the  discovery  of  new  assets  or  for  other  rea- 
sons, he  may  again  administer. 

In  the  ordinary  case,  where,  in  the  case  of  an  administrator, 
the  next  of  kin  are  definitely  known  and  there  is  no  dispute 
in  regard  to  the  right  of  distribution,  or  where,  in  the  case  of  a 
will,  the  provisions  of  the  same  are  clear,  and  no  question  arises 
in  the  mind  of  the  executor  as  to  who  are  the  beneficiaries 
thereunder,  no  decree  of  distribution  is  required,  such  a  decree 
being  only  taken  in  a  case  where  doubts  arise  as  to  who  are  the 
distributees  of  intestate's  estate,  or  as  to  who  are  the  legatees 
under  a  will. 

Practice  on  Application  for  Decree  of  Distribution  of^an  In- 
testate's Estate. 

Application  for  a  decree  of  distribution  of  an  intestate's 
estate  is  by  petition,  (see  form  258  infra).  No  notice  of  such 
application  is  necessary  if  the  same  be  made  at  the  time  of  the 
allowance  of  the  administrator's  final  account,  as  all  persons  in 
interest  arc  in  court  upon  the  notice  of  settlement  of  the  ac- 
count, and  it  is  provided  by  a  rule  of  court  that  the  proof  as  to 
who  are  entitled  may  be  made  by  the  affidavit  of  any  person 
having  knowledge  of  the  facts.  The  court  may,  however,  re- 
quire additional  testimony  if,  in  its  discretion,  it  seems  advisa- 
ble so  to  do. 

The  function  of  a  decree  of  distribution  is  to  fix  the  propor- 
tions of  the  estate  of  an  intestate  to  which  the  several  next  of 


876  Probate  Law  and  Practice. 

kin  are  entitled,  but  not  to  fix  or  ascertain  the  amount  of  each 
share,  l^ie  decree  of  distribution,  therefore,  should  not  state 
the  amount  due  each  next  of  kin,  Init  only  the  proportion  due 
each.  The  reason  for  this  is  that  next  of  kin  may  have,  during 
the  administration  of  the  estate,  assigned  their  shares,  or  other- 
wise dealt  with  them.  The  proper  proceeding  for  ascertain- 
ing the  amount  due  any  legatee  is  by  suit  for  a  distributive 
share,  (which  see  infra). 

Application  for  Decree  of  Distribution  in  Case  of  a  Will. 

Application  for  a  decree  of  distribution,  in  the  case  of  a 
testate  decedent,  is  by  petition  addressed  to  the  Orphans'  Court 
(see  form  262  infra).  Five  days'  notice  of  such  application  is 
recjuired  to  be  given  to  all  persons  interested,  therein  who  are 
residents  of  the  State  of  New  Jersey,  and  not  less  than  five 
nor  more  than  sixty  days'  notice,  as  the  court  may  by  order 
direct,  to  non-residents,  which  last  mentioned  notice  may  be 
sent  by  mail  with  the  postage  thereon  prepaid. 

The  questions  presented  for  solution  upon  an  application  for 
a  decree  of  distribution  where  there  is  a  will  can  only  be  solved 
by  construing  the  will,  since  they  arise  from  uncertainties  in 
regard  to  the  intent  of  the  testator,  as  expressed  in  the  lan- 
guage used  by  him.  The  court  has,  therefore,  power,  as  an 
incident  to  its  jurisdiction  to  make  a  decree  of  distribution,  to 
construe  such  will.  Such  construction  is,  however,  limited  to 
the  purpose  for  which  it  is  obtained,  that  is  to  say,  the  distri- 
bution^of  the  estate,  and  is  not  binding  for  other  purposes. 


PROSECUTION  OF  BONDS  OF  EXECUTORS,  ETC. 


Practice. 

When  the  bond  of  any  executor,  administrator,  guardian  or 
trustee  has  been  forfeited,  any  person  aggrieved  may  present 
to  the  Ordinary  a  petition  (see  form  85  infra)  praying  that  he 
be  permitted  to  prosecute  such  bond,  and  upon  good  cause 
shown,  the  Ordinary  will  so  order,  but  will  require  a  bond  to 


Suits  for  Legacies,  Etc.  >^J/ 

secure  the  payment  of  costs.  This  order  and  bond  are  filed 
in  the  Prerogative  Court,  after  which  a  suit  at  law  must  be 
brought  upon  such  bond  in  the  name  of  the  Ordinary;  and  if 
the  same  has  been  found  to  have  been  forfeited,  judgment  must 
be  for  the  full  amount  of  the  penalty. 

After  judgment  has  been  obtained  upon  the  bond,  applica- 
tion is  made  to  the  Ordinary  by  petition,  upon  five  days'  notice 
(see  form  89  infra)  to  assess  the  damages  sustained  l)y  the 
breach  of  the  bond ;  and  the  Ordinary  may  assess  such  dam- 
ages, or  may  refer  such  matter  to  a  master. 

Upon  an  application  to  assess  damages  upon  a  judgment 
against  sureties,  the  only  question  to  be  determined  is  the 
amount  to  be  raised,  and  no  defences  against  the  liability  of 
the  sureties  on  the  bond  can  be  set  up.  In  such  proceeding,  the 
person  prosecuting  the  bond  proceeds  to  establish  by  evidence 
the  amount  which  has  come  to  the  hands  of  the  executor,  etc. 
The  latter  may  then  show  by  competent  testimonv  such  pay- 
ments as  may  have  been  made  by  him.  and  those  which  are  war- 
ranted by  law  will  be  deducted  from  the  amount  so  collected ; 
and  the  damages  awarded  will  be  the  difference  between  the 
amount  shown  to  have  been  received  by  the  executor,  etc..  and 
the  amount  of  payments  lawfully  made  by  him  therefrom. 
The  Ordinary  may,  in  his  discretion,  order  the  executor,  etc.,  to 
settle  his  account  in  the  Orphans'  Court  before  damages  are 
assessed,  in  which  case  the  damages  are  assessed  at  the  amount 
of  the  balance  shown  to  be  in  his  hands  by  the  decree  allowing 
the  account. 


SUITS    FOR    LEGACIES    AND    DISTRIBUTIVE 
SHARES. 

Practice  on  Application. 

Suits  for  the  recovery  of  legacies  and  distributive  shares  are 
commenced  by  petition  (see  forms  276  and  280  infra)  which 
must  be  verified  by  the  oath  of  the  petitioner,  his  agent  or 
solicitor.  Dn  the  filing  of  the  petition,  a  citation  issues,  which 
is  served  by   the   Sheriff  on   all   jjarties   in   interest,   and  the 


878  Probate  Law  and  Practice. 

proceedings  thereafter  are  governed  by  the  rules  and  practice 
of  the  Court  of  Chancery. 

Upon  the  return  of  the  citation,  no  proceedings  are  had,  but 
an  answer  must  be  filed  by  the  executor  or  administrator  within 
twenty  days  from  the  return  day  thereof,  and  a  replication 
filed  by  petitioner  within  ten  days  after  the  expiration  of  the 
time  limited  for  filing  the  answer,  after  which  the  petitioner 
makes  application  to  the  court  upon  five  days'  notice  to  the 
executor  or  administrator,  for  an  order  fixing  a  day  for  hear- 
ing, at  which  time  the  court  proceeds  to  inquire  into  and  de- 
termine the  matter. 


PROCESS. 


Issue  and  Service, 

Process  for  the  appearance  of  any  person  before  the  Orphans' 
Court  may  be  by  citation  issued  by  the  Surrogate,  or,  in  any  pro- 
ceedings against  executors,  administrators,  guardians  or  trus- 
tees, by  rule  to  show  cause  made  by  the  Orphans'  Court.  Cita- 
tions may  be  issued  into  any  county  of  the  state,  and  must  be 
served  by  the  Sheriff  of  the  county  into  which  they  are  issued 
ten  days  before  the  day  whereon  they  are  returnable.  Rules 
to  show  cause  must  be  served  at  least  five  days  before  their 
return,  but  the  court  may  direct  the  manner  and  time  in  which 
the  same  shall  be  served. 

Service  of  Process  upon  Non-Residents. 

There  are  two  methods  of  service  of  process  upon  non- 
residents ;  service  by  any  person  whom  the  Surrogate  under  his 
hand  shall  appoint,  either  personally  or  by  leaving  a  copy  at  his 
residence  or  usual  place  of  abode  thirty  days  before  the  return 
day  of  such  citation,  or  publication,  in  which  latter  case  the 
practice  is  identical  with  that  of  the  Court  of  Chancery  in  a 
like  case.  If  the  process  is  served  by  a  person  delegated  by 
the  Surrogate,  an  affidavit  of  such  service,  setting  forth  the 


Process.  879 

time,  place  and  manner  of  service,  must  be  filed  in  the  Sur- 
rogate's office. 

Service  upon  Non-Residents  by  Publication. 

The  practice  upon  the  service  of  non-residents  by  publica- 
tion is  to  issue  citations  to  such  non-residents,  and  have  the 
same  returned  by  the  Sheriff  not  found;  or  proof  of  the  non- 
residence  of  the  parties  may  be  made  by  affidavit.  The  court 
thereupon  will  make  its  order  directing  such  absent  defendant 
to  appear  at  a  certain  time  not  less  than  thirty  days  from  the 
date  of  said  order,  or  that  such  proceedings  will  be  had  against 
the  said  absent  defendant  as  if  he  had  appeared  in  such  suit 
or  proceeding. 

Notice  of  such  order  must  within  twenty  days  thereafter  be 
served  personally  upon  such  absent  defendant  by  the  delivery 
of  a  copy  thereof  to  him,  or  be  published  in  one  or  more  news- 
papers, designated  in  such  order,  for  four  consecutive  weeks, 
at  least  once  in  each  week ;  and  in  case  of  such  publication, 
a  copy  of  such  notice  must  be  mailed  to  such  defendant, 
prepaid,  and  directed  to  him  at  his  residence  or  post-office  ad- 
dress, unless  such  residence  or  post-office  address  is  unknown 
and  cannot  be  ascertained. 

The  notice  to  be  published  is  entitled  in  the  court  only,  and 
addressed  to  the  absent  defendant  l)y  name.  It  is  required  to 
state  the  date  of  the  order,  the  name  of  the  petitioner,  and  the 
time  within  which  the  absent  defendants  are  required  to  ap- 
pear, and  shall  also  state  briefly,  in  general  terms,  the  object 
of  the  suit  and  why  the  persons  to  whom  it  is  addressed  are 
made  parties. 

In  all  cases  where  the  residence  and  post-office  address  of 
an  absent  defendant  not  actually  served  with  a  notice  to  appear 
is  not  known,  the  petitioner,  his  proctor  or  agent  is  required  to 
make  diligent  and  careful  inquiry  therefor,  which  inquiry  must 
be  made  of  the  nearest  relatives  of  the  defendanl.  if  known,  or. 
if  not  known,  of  any  person  known  to  be  connected  with  such 
party  by  marriage  or  in  business,  or  of  any  person  whom  the 
])etitioner  or  his  proctor  has  reason  to  believe  possesses  knowl- 
edge of  the  residence  or  i)ost-office  address  of  such  partv. 
S7 


88o  Probatk  Law  and  Practice. 

CONTEMPT  PROCEEDINGS. 

General  Remarks. 

The  Orphans'  Court  has  power  to  punish  as  for  a  contempt 
any  person  who  disobeys  or  does  not  comply  with  any  order  or 
decree  made  by  it. 

Practice. 

The  practice  upon  application  to  hold  a  person  as  for  a 
contempt  is  to  present  the  matter  to  the  court  by  a  petition 
(see  form  237  infra).  The  court  will  thereupon  issue  an 
order  directed  to  such  person,  requiring  him  to  appear  before 
the  court  at  a  day  therein  fixed,  to  show  cause  why  he  should 
not  be  punished  for  his  contempt,  which  order  should  be  served 
personally.  Upon  the  return  day  of  the  order  to  show 
cause,  the  court  will  inquire  into  the  matter;  and  if  the 
person  to  whom  such  order  is  directed  does  not  appear,  or, 
in  case  he  does  appear,  if  he  does  not  purge  himself  of  the 
contempt,  the  court  may  inflict  punishment  by  way  of  fine,  or 
may  order  that  he  be  committed  to  jail  until  the  further  order 
of  the  court,  which  order  is  delivered  to  the  Sherifif  and  exe- 
cuted by  him.  An  order  holding  a  person  in  contempt  may 
be  executed  by  a  Sheriff  of  any  county  of  this  state  in  which 
such  person  may  be   found. 


APPEAL. 


Who  May  Appeal. 

Any  person  aggrieved  by  any  order  or  proceeding  of  a 
Surrogate  in  proving  an  inventory,  granting  letters  of  admin- 
istration or  guardianship  or  in  admitting  a  will  to  probate, 
may  appeal  therefrom  to  the  Orphans'  Court.  Appeals  from 
all  other  orders  or  decrees  of  the  Surrogate  are  to  the  Pre- 
rogative Court. 


Appeals.  88  i 

When  Appeal   Must  be  Taken. 

An  appeal  from  any  {)roceeding  of  a  Surrogate  in  proving 
an  inventory  or  granting  letters  of  administration  or  guardian- 
ship, must  be  taken  within  twenty  days  after  such  order  or 
proceeding.  Appeal  from  a  decree  of  the  Surrogate  admitting 
a  will  to  probate  must  be  taken  within  three  months  from  the 
entry  of  such  decree,  or  within  six  months  in  cases  where  the 
person  appealing  resides  out  of  this  state  at  the  death  of  the 
testator. 

Petition  of  Appeal. 

In  a  recent  case,  the  Prerogative  Court  has  held  that  the 
proper  method  of  taking  an  appeal  from  the  Surrogate  is  by 
petition  filed  with  the  Surrogate  as  Surrogate,  and  not  as 
clerk  of  the  Orphans'  Court.  The  appeal  should  therefore  be 
addressed  to  the  Surrogate  (see  forms  355  and  356  infra).  A 
copy  of  the  petition  of  appeal  is  required  to  be  served  within 
ten  days  from  the  filing  thereof,  unless  the  court,  in  its  dis- 
cretion, grant  further  time,  upon  the  executor,  administrator 
or  guardian  in  case  of  an  appeal  from  the  probate  of  a  will  or 
from  an  order  granting  letters  of  administration  or  guardian- 
ship, and  in  other  cases,  upon  the  adverse  party. 

Issue  of  Citations. 

It  is  the  duty  of  the  appellant,  within  ten  days  after  filing 
the  petition  of  appeal,  unless  the  court  shall  grant  further 
time,  to  cause  the  Surrogate  to  issue  citations  to  all  the  i)ersons 
concerned  and  to  cause  the  same  to  be  duly  served. 

Hearing  of  Appeal. 

On  an  appeal  from  a  decree  of  tiie  Surrogate  the  matter 
is  tried  de  novo  by  tbe  Orphans'  Court,  which  ])roceeds  as 
though  no  jjroceedings  had  been  had  l)cfore  the  Surrogate,  and 
the  petitioner  before  the  Surrogate  were  the  moving  party. 

The  i^ractice  in  case  of  an  appeal  from  the  ])robate  of  a  will 
has  l^een  consirlercd  under  tbe  subject  of  contested  ])r(tbates 
(supra  ). 


882  Probate  Law  and  Practice;. 

ADOPTION  OF  INFANTS. 

General  Remarks. 

Applications  for  the  adoption  of  minors  fall  into  three 
classes.  First,  where  it  is  possible  to  obtain  the  consent  of 
the  parents.  Second,  where  the  care  and  custody  of  the  child 
has  been  surrendered  by  the  parents  to  an  orphanage,  chil- 
dren's home  or  society  to  care  for  children  incorporated 
under  the  laws  of  this  state.  Third,  where  the  child  has 
been  abandoned,  and  there  is  no  legal  guardian  to  give  con- 
sent to  its  adoption. 

Practice  Where  Consent  to  Adoption  Can  be  Obtained. 

Proceedings  for  the  adoption  of  minors  are  initiated  by  pe- 
tition of  the  adopting  parties  (see  form  342  infra).  If  the 
petition  is  made  by  husband  and  wife,  both  must  join  in  the 
petition,  which  may  be  presented  to  the  Orphans'  Court  either 
of  the  county  where  the  child  resides,  or  of  the  county  where 
the  petitioners  reside. 

Annexed  to  the  petition  is  the  written  consent  of  the 
parents  of  such  child,  acknowledged  or  proved  as  deeds  ot 
land  are  required  to  be.  If,  however,  either  parent  be  dead, 
unknown,  insane  or  habitually  intemperate,  the  consent  of 
the  other  is  sufficient. 

If  the  parent  or  parents  have  granted  custody  and  con- 
trol of  the  child  to  any  orphanage  or  childrens'  home  or  society 
incorporated  under  the  laws  of  this  state  to  care  for  children, 
or  if  such  a  society  has  legally  acquired  the  custody  and  con- 
trol of  such  child,  the  written  consent  jaf  such  society  under 
its  common  seal  must  be  annexed.  It  is  to  be  observed  that 
only  childrens'  aid  societies  incorporated  under  the  laws  of 
this  state  are  authorized  to  consent  to  the  adoption  of  minors 
under  their  control. 

If  the  child  be  over  the  age  of  fourteen  years,  its  consent, 
acknowledged  or  proved  as  deeds  of  land  are  required  to  be, 
must  be  annexed  to  the  petition. 

The  petition  should  be  filed  with  the  Surrogate  before  pre- 
senting the  same  to  the  court.  When  the  petition  is  presented 
to  the  court,  an  order  will  be  made  appointing  a  day  not  less 


Adoption  of  Minors.  883 

than  ten  nor  more  than  thirty  days  from  the  filing  of  the 
petition  for  hearing  the  matter.  Adoption  proceedings  are 
lieard  in  open  court,  and  the  testimony  is  taken  as  in  other 
cases.  It  is  necessary  to  produce  both  of  the  adopting  parents, 
who  are  called  as  witnesses  to  verify  by  their  testimony  each 
allegation  of  the  petition.  It  is  the  better  practice,  where 
possible,  also  to  call  the  parent  or  parents  of  the  child,  and 
to  examine  them  as  to  their  reasons  for  consenting  to  its 
adoption.  This,  however,  is  not  indispensable,  if  they  have 
properly  executed  their  consent.  The  presence  of  the  child 
at  the  hearing  is  not  indispensable,  although  customary.  At 
least  one  witness  should  also  be  called  to  establish  the  good 
character  of  the  adopting  })arents. 

Practice     Where     Consent     to     Adoption     Cannot     be 
Obtained. 

Where  a  child  has  been  abandoned  and  has  no  legal  guardian 
who  can  consent  to  its  adoption,  the  proceedings  in  regard  to 
the  filing  and  presentation  of  the  petition  are  similar  to  those 
upon  the  adoption  of  a  child  whose  parents  have  consented  to 
the  adoption,  except  that  upon  the  presentation  of  the  pe- 
tition to  the  court,  the  court  will  make  its  order  fixing  a 
day  when  it  will  appoint  a  next  friend  for  such  minor.  Notice 
of  the  filing  of  the  petition  and  the  making  of  such  order  is 
given  by  publishing  the  same  in  two  newspapers  circulating 
in  the  county  where  such  court  is  located,  once  a  week  for 
three  weeks  successively;  and  upon  the  day  fixed  by  the 
order,  upon  proof  of  such  publication,  the  court  will  appoint 
some  suitable  person  as  next  friend  for  such  minor,  and  will 
also  fix  a  day,  not  less  than  ten  nor  more  than  thirty  days 
thereafter,    for  hearing  the   petition. 

Upon  the  day  fixed  for  hearing,  the  consent  in  writing 
by  the  next  friend  to  the  adoption  of  such  minor,  and  also 
the  consent  of  the  child,  if  over  fourteen  years,  acknowledged 
or  proved  as  is  required  of  deeds  of  land,  is  presented  to  the 
court. 

The  i)etitioner  is  required  to  call  witnesses  to  prove  the 
abandonment  of  the  child,  after  which  the  testimony  of  the 


884  Probate  Law  and  Practice. 

adopting  parents  and  of  witnesses  to  prove  their  good  char- 
acter is  taken.  The  presence  of  the  child  at  the  hearing  is 
not  indispensable,  although  customary. 


RULES 

OF  THE 

ORPHANS'  COURTS 

OF  THE 
STATE  OF  NEW  JERSEY. 

Promulgated  December  i,  1915,  to  Take  Effect  April  i,  1916. 


I.  PROBATE    OF    WILL    OR    ADMINISTRATION. 

1.  APPLICATION  FOR  PROBATE  OR  LETTERS   OF 

ADMINISTRATION. 

The  application  for  probate  of  a  will,  for  letters  of  adminis- 
tration, for  letters  of  administration  with  the  will  an- 
nexed, for  substitutionary  administration,  or  for  substitution- 
ary administration  with  the  will  annexed,  shall  be  in  writing, 
verified  by  affidavit ;  such  application  shall  state  the  residence 
of  the  applicant,  the  names  of  the  heirs  and  next  of  kin  of 
the  deceased,  so  far  as  the  same  are  known,  with  their  resi- 
dences or  post-office  addresses,  and  the  manner  or  degree  in 
which  they  severally  stand  related  to  him  or  her ;  and  shall 
also  state  the  ages  of  any  of  said  heirs  or  next  of  kin  who 
may  be  minors ;  which  application  shall  be  recorded  by  the 
Surrogate  in  a  book  to  be  kept  by  him  for  that  purpose. 

2.  RENUNCIATION  BY  OR  NOTICE  TO  NEXT  OF 

KIN. 

Where  application  for  administration,  for  administration 
with  the  will  annexed,  for  substitutionary  administration,  or 
for  substitutionary  administration   with  the   will   annexed,   is 

885 


886  Probate  Law  and  Practice. 

made  by  any  person  other  than  the  next  of  kin  or  party  first  en- 
titled, or  by  one  of  several  equally  entitled  to  letters  of  ad- 
ministration, the  person  making  such  application  shall  produce 
to  the  Surrogate  the  renunciation  and  request  of  the  persons 
so  entitled  that  letters  be  issued  according  to  the  application, 
or  proof  that  at  least  ten  days  notice  has  been  given  to  all  of 
the  next  of  kin  or  parties  by  law  entitled  to  such  administration 
who  reside  in  this  State,  and  that  not  less  than  ten  nor  more 
than  sixty  days'  notice,  as  the  Surrogate  may  by  order  direct, 
has  been  given  to  the  said  next  of  kin  or  parties  by  law  entitled 
to  such  administration  who  shall  reside  without  this  State. 
Notice  to  non-residents  of  the  State  of  New  Jersey  may  be 
sent  by  mail,  with  the  postage  thereon  prepaid,  addressed  to 
the  last  known  residence  of  such  next  of  kin  or  parties  by 
law  entitled  to  such  administration ;  which  application  and  the 
renunciation  and  request,  if  any,  shall  be  recorded  in  a  book 
to  be  kept  for  that  purpose. 

3.  ADMINISTRATION  AFTER  FORTY  DAYS  FROM 

DEATH. 

If  the  executor  named  in  any  last  will  shall  not  apply  for 
the  probate  of  said  will  and  for  letters  testamentary  thereon 
within  forty  days  from  the  death  of  his  testator,  or  if  the 
next  of  kin  of  any  person  dying  intestate  shall  not  apply  for 
administration  within  forty  days  from  the  death  of  such  in- 
testate, the  Surrogate  may  grant  letters  testamentary,  or  let- 
ters of  administration,  as  the  case  may  be,  to  any  fit  person 
who  will  accept  the  same. 

4.  NOTICE  OF  APPLICATION  UNDER  RULE  THREE. 

In  all  cases  where  application  for  letters  testamentary  or 
letters  of  administration  is  made  under  the  provisions  of  rule 
three,  the  applicant  shall  give  at  least  ten  days'  notice  to  the 
executor  if  any  and  also  to  the  heirs,  widow,  next  of  kin  or 
persons  entitled  to  administration  who  are  residents  of  the 
State  of  New  Jersey,  and  not  less  than  ten  nor  more  than 
sixty -days'  notice,  as  the  Surrogate  may  by  order  direct,  to 
the  executor  if  any  and  also  to  the  heirs,  widow,  next  of  kin  or 
persons  entitled  to  administration  who  reside  without  the  State 


Orphans'  Court  Rules.  887 

of  New  Jersey,  or  to  those  of  them  whose  residences  or 
addresses  he  can  ascertain,  of  his  intention  to  make  such  ap- 
pHcation,  which  notices  may  be  sent  by  mail  with  the  postage 
thereon  prepaid.  Proof  of  service  of  the  aforesaid  notices 
shall  be  filed  with  the  Surrogate. 

5.  AFFIDAVIT  OF  VALUE  OF  ESTATE. 

All  applications  to  the  Surrogate  for  letters  of  adminis- 
tration, administration  with  the  will  annexed,  substitutionary 
administration  or  substitutionary  administration  with  the  will 
annexed,  shall  be  accompanied  by  an  affidavit  of  the  value  of 
the  estate  for  the  administration  of  which  the  application  is 
made. 

6.  RESIDENTS      PREFERRED      OVER      NON-RESI- 

DENTS. 

Where  upon  an  application  for  letters  of  administration, 
administration  with  the  will  annexed,  substitutionary  admin- 
istration, or  substitutionary  administration  with  the  will  an- 
nexed, it  shall  appear  that  some  of  the  next  of  kin  or  persons 
entitled  to.  administration  are  residents  of  the  State  of  New- 
Jersey  and  that  others  of  said  next  of  kin  or  persons  entitled 
to  administration  reside  without  the  State  of  New  Jersey,  the 
Surrogate,  in  granting  letters  of  administration,  shall  give 
preference  to  residents  of  the  State  of  New  Jersey. 

7.  PROCEEDINGS   WHERE  WILL   IS   DISCOVERED 

AFTER  ADMINISTRATION  GRANTED. 

Where  administration  has  been  granted  of  an  estate,  and 
afterwards  a  will  shall  be  produced  to  the  Surrogate,  or 
where  probate  of  a  will  has  been  granted,  and  afterwards  a 
later  will  shall  be  produced,  the  Surrogate  shall  issue  a  cita- 
tion to  all  persons  interested,  returnable  to  the  Orphans' 
Court,  to  show  cause  why  probate  of  such  will  should  not  be 
granted  ;  and  upon  admitting  to  probate  such  will,  the  court 
shall  require  the  administrator  or  prior  executor  to  make  final 
settlement  of  his  account,  and  shall  make  such  order  in  rela- 
tion to  his  commissions  as  shall  be  just  and  eciuitable. 


888  Probate  Law  and  Practice. 

SUBSTITUTIONARY  ADMINISTRATION. 

8    SUBSTITUTIONARY    ADMINISTRATION    AFTER 

FORTY  DAYS  FROM  DEATH  OF  EXECUTOR 

OR  ADMINISTRATOR. 

If  any  executor  or  administrator,  administrator  with  the 
will  annexed,  substituted  administrator,  or  substituted  admin- 
istrator with  the  will  annexed,  shall  die  before  fully  ad- 
ministering the  estate  of  his  testator  or  intestate,  and  the  next 
of  kin,  residuary  legatees  or  persons  by  law  entitled,  shall  not 
apply  for  substitutionary  administration  with  the  will  annexed, 
or  for  substitutionary  administration,  as  the  case  may  re- 
quire, for  forty  days  after  the  death  of  such  executor  or  ad- 
ministrator, the  Surrogate  may  grant  letters  of  substitution- 
ary administration  with  the  will  annexed,  or  letters  of  sub- 
stitutionary administration,  as  the  case  may  require,  to  any  fit 
person  who  will  accept  the  same. 

9.  NOTICE  OF  AMPLICATION  UNDER  RULE  EIGHT. 

In  all  cases  where  application  for  letters  of  substitutionary 
administration  is  made  under  the  provisions  of  rule  eight  the 
applicant  shall  give  at  least  ten  days'  notice  to  the  heirs, 
widow,  next  of  kin,  residuary  legatees  or  persons  by  law  en- 
titled to  substitutionary  administration  with  the  will  annexed, 
or  substitutionary  administration,  as  the  case  may  be,  who 
are  residents  of  the  State  of  New  Jersey,  and  not  less  than 
ten  nor  more  than  sixty  days'  notice,  as  the  Surrogate  may 
by  order  direct,  to  the  heirs,  widow,  next  of  kin,  residuary 
legatees  or  persons  by  law  entitled  to  such  substitutionary 
administration  with  the  will  annexed,  or  substitutionary  ad- 
ministration, as  the  case  may  be,  who  shall  reside  without 
the  State  of  New  Jersey,  or  to  those  of  them  whose  residences 
or  addresses  he  can  ascertain,  of  his  intention  to  make  such 
application  ;  which  notices  may  be  sent  by  mail  with  the  postage 
thereon  prepaid.  Proof  of  service  of  the  aforesaid  notices 
shall  be  filed  with  the  Surrogate. 


OupiiAxs'  Court  Rules.  889 

10.  FORM    OF    LETTERS    OF    SUBSTFrUTIONARV 

ADMINISTRATION. 

To  all  to  whom  these  presents  shall  come,  greeting: 
Whereas,  A.  B.,  late  of  the  County  of  E.,  in  the  State  of 
New  Jersey,  departed  this  life  intestate,  of  whose  goods,  chat- 
tels and  credits  administration  was  duly  committed  to  C.  D., 
and  the  said  C.  D.,  after  taking  upon  himself  the  burden  of 
said  administration,  departed  this  life  (or  was  removed  or 
discharged  from  the  said  office  by  ,  as  the 

case  may  be).  Therefore  I,  F.  G.  S.,  Jr..  Surrogate  of  the 
County  of  E..  do  in  the  place  and  stead  of  the  said  C.  D., 
hereby  substitute  and  appoint  E.  F.,  administrator  of  all  and 
singular  the  goods,  chattels  and  credits  of  said  intestate,  who 
is  duly  authorized  as  such  substituted  administrator  to  admin- 
ister the  same  agreebly  to  law. 

11.  FORM    OF    LETTERS    OF    SUBSTITUTIONARY 
ADMINISTRATION  WITH  THE  WTLL  ANNEXED. 

To  all  to  whom  these  presents  shall  come,  greeting: 
Whereas,  A.  B.,  late  of  the  County  of  E.,  in  the  State  of 
New  Jersey,  died,  having  made  and  executed  a  last  will  and 
testament,  which  has  been  duly  proved  according  to  law  be- 
fore the  Surrogate  of  the  County  of  E. ;  and,  whereas  the  said 
testator  appointed  C.  D.  executor  thereof,  who,  after  taking 
upon  himself  the  burden  of  administration,  departed  this  life 
(or    was    removed    or    discharged    from    his    said    office    by 

,  as  the  case  may  be).  Therefore  I. 
F.  G.  S.  Jr.,  Surrogate  of  the  County  of  E.,  do,  in  the  place 
and  stead  of  the  said  C.  D.,  hereby  substitute  and  appoint 
E.  F.  administrator  of  all  and  singular  the  goods,  chattels  and 
credits  of  the  said  testator,  who  is  duly  authorized  as  such 
substituted  administrator  to  administer  the  same  agreeably  to 
said  will. 

12.  FORM  OF  LETTERS  TO  BE  CHANGED  TO  AC- 

CORD TO  FACTS. 

If  the  appointment  is  in  substitution  of  an  administrator 
with  the  will  annexed  who  has  died,  been  removed,  or  dis- 
charged, the  form  is  to  be  made  to -accord  with  the  fact. 


Sgo  Probate  Law  and  Practice. 

II.     GUARDIANSHIP. 

13.  APPLICATION    FOR   LETTERS    OF   GUARDIAN- 

SHIP. 

Application  for  letters  of  guardianship  shall  be  in  writing, 
verified  by  affidavit ;  such  application  shall  state  the  age  and 
residence  of  the  minor,  the  names  and  residences  of  his  near- 
est of  kin,  the  names  and  residences  of  all  persons  standing  in 
loco  parentis  to  such  minor,  if  any,  and  the  names  and  resi- 
dences of  the  persons  with  whom  he  resides,  and  shall  have 
annexed  thereto  an  affidavit  of  the  value  of  the  personal  es- 
tate of  said  minor  and  the  amount  of  the  income  from  any 
real  estate  belonging  to  him.  In  the  case  of  applications  by 
orphans  over  the  age  of  fourteen  the  foregoing  affidavit  shall 
be  made  by  some  person  having  personal  knowledge  of  the 
value  of  the  personal  estate  of  said  minor  and  the  amount  of 
the  income  from  any  real  estate  belonging  to  him. 

14.  NOTICE  OF  APPLICATION  FOR  GUARDIANSHIP. 

Where  application  for  letters  of  guardianship  of  an  orphan 
under  fourteen  or  for  guardianship  upon  the  estate  of  a 
minor  whose  father  is  living,  is  made  by  any  person  other 
than  the  next  of  kin  or  party  first  entitled,  or  by  one  of  several 
equally  entitled  to  receive  letters  of  guardianship,  the  person 
making  such  application  shall  produce  to  the  Surrogate  or 
Orphans'  Court  the  renunciation  and  request  of  such  persons 
so  entitled  and  of  the  person  or  persons  standing  in  loco 
parentis  to  said  minor,  if  any,  and  also  of  the  persons  with 
whom  said  minor  resides,  that  letters  be  issued  according  to 
the  application,  or  proof  that  at  least  ten  days'  notice  has 
been  given  to  all  of  the  next  of  kin  or  parties  by  law  entitled 
to  such  guardianship,  and  to  all  persons  standing  in  loco 
parentis  to  said  minor,  if  any,  and  also  to  the  persons  with 
whom  said  minor  resides,  who  resides  in  this  State ;  or  that 
not  less  than  ten  nor  more  than  sixty  days'  notice,  as  the 
court  or  Surrogate  may  by  order  direct,  has  been  given  to 
the  said  next  of  kin  or  parties  by  law  entitled  to  such  guard- 
ianship, and  to  any  person  standing  in  loco  parentis  to  said 
minor,  and  to  the  persons  with  whom  the  said  minor  may  re- 


Orphans'  Court  Rules.  891 

side,  who  shall  reside  without  this  State.  Notice  to  non-resi- 
dents of  the  State  of  New  Jersey  may  be  sent  by  mail,  with 
the  postage  thereon  prepaid,  addressed  to  the  last  known  resi- 
dence of  such  next  of  kin,  person  standing  in  loco  parentis. 
person  with  whom  said  minor  may  reside,  or  persons  by  law 
entitled  to  such  guardianship.  The  application  and  the  re- 
nunciation and  request,  if  any,  shall  be  recorded  by  the  Sur- 
rogate in  a  book  to  be  kept  for  that  purpose. 

15.  APPOINTMENT    OF    GUARDIAN    FOR    INFANT 

OVER  FOURTEEN  FOR  WHOM  GUARDIAN 

HAS  BEEN  APPOINTED  WHILE  UNDER 

FOURTEEN. 

In  case  any  orphan,  for  whom,  while  under  the  age  of  four- 
teen years,  a  guardian  has  been  appointed,  desires,  upon  ar- 
riving at  the  age  of  fourteen  years,  to  choose  another  guard- 
ian, application  may  be  made  to  the  Orphans'  Court  of  the 
county  wherein  the  original  letters  of  guardianship  were 
granted,  which  application  shall  be  signed  by  the  minor  in  the 
presence  of  the  Surrogate,  Deputy-Surrogate,  or  a  special 
master  in  chancery  of  New  Jersey,  and  shall  be  in  conformity 
with  the  requirements  of  rule  thirteen. 

The  same  notice  of  such  application  shall  be  given  to  the 
existing  guardian,  and  also  to  the  next  of  kin,  persons  stand- 
ing in  loco  parentis  and  persons  with  whom  such  minor  may 
reside,  as  is  prescribed  in  rule  fourteen  ;  upon  such  applica- 
tion, the  court  shall  inquire  into  the  circumstances  of  the  case, 
and  shall  take  such  action  in  respect  to  the  appointment  of  a 
guardian,  or  guardians  for  such  minor,  as  shall  seem  to  be 
for  his  best  interest  and  advantage. 

III.  INQUIRY    FOR   ABSENT   NEXT   OF   KIN. 

16.  NATURE  OF  INQUIRY  FOR  ABSENT  NEXT  OF 

KIN. 

Wherever  it  shall  appear  by  any  petition  for  letters  of  ad- 
ministration or  guardianship  that  the  residence  or  post-ofificc 
address  of  any  next  of  kin  or  other  person  entitled  to  notice 
of  such  application  is  not  known,  the  applicant,  or  his  proctor, 
shall  make  diligent  and  careful  inquiry  therefor ;   such  inquiry 


892  Probate  Law  and  Practice. 

shall  be  made  of  the  nearest  relatives  of  the  decedent  or 
minor,  if  known  or  if  not  known,  such  inquiry  shall  be 
made  of  any  person  known  to  be  connected  with  the  said 
decedent  or  minor,  by  marriage  or  in  business,  or  of  any  per- 
son who  the  applicant,  or  his  proctor,  making  the  inquiry,  has 
reason  to  believe  possesses  knowledge  of  the  residence  or 
post-office  address  of  such  absent  next  of  kin  or  person  en- 
titled to  notice  of  such  application;  such  inquiries  may  be 
made  in  person  or  by  letter,  and  shall  state  that  application 
has  been  made  for  letters  of  administration  upon  the  estate 
of  the  decedent  (naming  him),  or  for  letters  of  guardianship 
of  the  minor  (naming  him),  and  that  the  next  of  kin  or  per- 
son entitled  to  notice,  whose  residence  is  sought  to  be  ob- 
tained, is  interested  in  such  application,  and  that  the  object 
of  the  inquiry  is  to  give  him  notice  of  such  application,  that 
he  may  appear  and  protect  his  interests,  and,  in  the  case  of 
an  application  for  guardianship,  the  interests  of  said  minor. 
When  such  inquiry  is  made  by  letter  a  proper  postage  stamp 
for  the  return  of  an  answer  shall  be  enclosed. 

Proof  of  such  inquiry  shall  be  made  by  the  affidavit  of  the 
applicant,  or  his  proctor,  that  such  inquiry  has  been  made  in 
good  faith  and  without  success. 

IV.  SETTLEMENT  OF  ACCOUNTS. 

17.  VOUCHERS  TO  P.E  LODGED  \\'ITH  SURROGATE. 
Executors,  administrators,  guardians  and  trustees  who  have 

noticed  their  accounts  for  settlement  shall  lodge  with  the 
Surrogate  the  vouchers  and  receipts  for  payments  and  dis- 
bursements claimed  therein,  at  least  twenty  days  previous  to 
the  day  on  which  said  account  is  noticed  for  settlement,  which 
said  vouchers  shall  be  open  to  the  inspection  of  all  interested 
persons.  The  Surrogate  shall  not  report  any  account  to  the 
Orphans'  Court  for  allowance  and  settlement  unless  the  said 
vouchers  and  receipts  have  been  lodged  with  him  in  compli- 
ance with  this  rule. 

18.  NOTICE  OF  SETTLEMENT  OF  ACCOUNTS  TO 

BE  MAILED. 
In  addition  to  the  posting  and  publication  of  notices  of  set- 
tlement of  the  accounts  of  executors,  administrators,  guardians 


Orphans'  Court  Rules.  803 

and  trustees  prescribed  by  law,  one  month's  notice  of  the  set- 
tlement of  all  accounts  of  executors,  administrators,  guardians 
and  trustees,  together  with  a  statement  as  to  whether  counsel 
fees  and  commissions  will  be  applied  for  by  said  accountant  on 
the  allowance  of  said  account  by  the  court,  shall  be  given  by 
said  accountant  to  all  persons  interested  therein,  which  notice 
may  be  sent  by  mail  with  the  postage  thereon  prepaid.  In  case 
any  person  interested  in  the  settlement  of  such  account  be  a 
minor,  such  notice  shall  be  mailed  to  the  guardian  of  such 
minor,  if  any;  if  there  be  no  guardian  then  to  the  parent  or 
other  person  standing  in  loco  parentis  to  said  minor.  Proof  of 
such  mailing  shall  be  by  affidavit  filed  in  the  office  of  the  Sur- 
rogate on  or  before  the  day  on  which  said  account  is  noticed 
for  settlement. 

19.  PETITION    TO    BE    ANNEXED    TO    ACCOUNTS. 

All  accounts  of  executors,  administrators,  guardians  or 
trustees  shall  have  annexed  thereto  a  petition  which  shall  l)e 
addressed  to  the  Orphans'  Court  and  which  shall  contain  the 
names  and  addresses  of  all  persons  interested  in  said  account- 
ing, and  shall  specify  which  if  any  of  such  persons  in  interest 
are  minors.  In  case  any  of  such  persons  in  interest  be  minors 
the  said  petition  shall  give  the  names  and  addresses  of  the 
guardians  of  such  minors  if  any,  or  if  there  be  no  guardian 
then  the  names  and  addresses  of  the  parents  or  other  persons 
standing  in  loco  parentis  to  said  minor ;  said  j)etition 
shall  also  contain  a  summary  of  the  account  and,  in  the  case 
of  a  first  accounting,  shall  recite  the  amount  of  the  inventory, 
the  amount  shown  by  the  account  to  have  been  collected  in 
addition  thereto,  the  amount  of  expeditures,  and  shall  state  the 
balance  in  the  hands  of  the  accountant.  In  the  case  of  a 
second  or  other  accounting,  said  petition  shall  recite  the  balance 
remaining  in  the  hands  of  accountant  as  sliown  in  his  last 
])revious  account,  the  amount  received  during  the  period 
covered  by  the  account,  the  amount  of  disbursements  shown  In- 
the  account,  and  the  balance  in  the  hands  of  the  accountant. 
Such  petition  annexed  to  trustees'  accounts  shall  also  state  the 
receipts  and  disbursements  on  account  of  corpus  and  income 
separately.     The  pctiticjn  and  account   shall  be  verified  l)v  the 


894  Probate  Law  and  Practice. 

oath  of  the  accountant,  and  shall  pray  for  the  allowance  of  said 
account,  and  also  for  the  allowance  of  commissions  and  coun- 
sel fees  if  the  accountant  intends  to  apply  therefor. 

20.  EXCEPTIONS  TO  BE  IN  WRITING  AND  SPECIFIC. 

When  exceptions  are  made  to  the  account  of  an  executor, 
administrator,  guardian  or  trustee,  such  exceptions  shall  be 
in  writing;  and  where  the  objections  are  to  disbursements, 
they  shall  state  specifically  the  item  or  items  and  particulars 
objected  to,  and  the  reasons  therefor. 

21.  STATEMENT  OF  ASSETS  TO  BE  ANNEXED  TO 

ACCOUNT. 

In  the  settlement  of  the  accounts  of  executors,  administra- 
tors, guardians  or  trustees,  the  accountant  shall  annex  to 
the  account  a  full  statement  or  list  of  the  securities,  invest- 
ments and  assets  of  which  the  balance  of  the  estate  in  his 
hands  consists,  and  a  statement  of  all  changes  made  in  the 
securities  since  the  filing  of  the  inventory  or  since  the  last 
settlement. 

22.  NOTICE   OF   RE-SETTLEMENT   OF   ACCOUNTS. 

In  proceedings  for  the  re-settlement  of  the  account  of  an 
executor,  administrator,  guardian  or  trustee,  at  least  five  days' 
notice  of  the  intended  application  shall  be  given  to  such  ex- 
ecutor, administrator,  guardian  or  trustee. 

V.  COMMISSIONS. 

23.  APPLICATION      FOR      COMMISSIONS     WHERE 

ESTATE    IS    LARGE. 

Applications  for  commissions  in  all  cases  where  the  sums 
which  shall  come  into  the  hands  of  executors,  administrators 
or  trustees  shall  exceed  fifty  thousand  dollars  or  where,  in 
the  case  of  guardians,  such  sums  shall  exceed  twenty  thou- 
sand dollars,  shall  be  accompanied  by  an  affidavit  stating  fully 
the  pains,  trouble  and  risk  of  such  applicant  in  settling  such 
estate. 


Orphans'  Court  Rules.  895 

24.  NOTICE   OF   ADJUSTMENT   OF   COMMISSIONS. 

Upon  the  adjustment  of  commissions  between  executors, 
administrators,  guardians  or  trustees,  the  Orphans"  Court  shall 
not  determine  the  matter  upon  the  application  of  some  or  one 
of  them  without  proof  that  not  less  than  five  days'  notice  of 
such  application  has  been  given  to  the  other  or  others. 

VI.  INVESTMENT    OF    MONEYS. 

25.  EXECUTORS,    &c.,    TO    REPORT    FAILURE    TO 

INVEST. 

Executors,  administrators,  guardians  or  trustees  required 
to  retain  money  in  their  hands  shall  put  it  out  at  interest,  or 
apply  to  the  Orphans'  Court  for  an  order  so  to  do ;  and  in 
case  they  shall  not  be  able  to  find  proper  investment  therefor 
they  shall  report  the  fact  to  the  court  within  sixty  days  after 
they  shall  have  received  it,  or  after  they  shall  be  required  to 
retain  it  or  to  invest  it ;  and  in  case  of  their  neglect  so  to  do 
they  shall  be  accountable  for  interest  thereon. 

VII.  DISTRIBUTION. 

26.  PROOF  OF  NEXT  OF  KIN  ON   DISTRIBUTION. 

The  Orphans'  Court,  before  decreeing  the  distribution  of 
the  estate  of  any  person  dying  intestate,  shall  require  proof 
in  writing,  under  oath,  of  the  names  of  the  wife  and  children, 
if  any,  or  other  next  of  kin  of  the  intestate,  and  how  and  in 
what  degree  such  other  next  of  kin  are  related ;  which  proof 
mav  1)6  made  by  affidavit  of  the  administrator,  or  of  any  one 
having  knowledge  of  the  family  and  next  of  kin  of  the  de- 
ceased unless  the  court  shall  require  further  or  other  proof. 

27.  DISTRIBUTION  IN  CASE  OF  A  WILL. 

All  applications  by  executors,  substitutionary  administrators 
with  the  will  annexed,  or  administrators  with  the  will  an- 
nexed, for  a  decree  of  distribution,  shall  be  by  verified  peti- 
tion addressed  to  the  Orphans'  Court,  which  i)etition  shall 
recite  the  grant  of  letters  to  ])etitioner,  the  names  and  ad- 
dresses of  all  persons  interested,  the  allowance  of  petitioner's 
58 


896  Probate  Law  and  Practice. 

account  by  the  Orphans'  Court  and  the  balance  in  petitioner's 
hands  for  distribution,  and  shall  pray  for  an  order  of  dis- 
tribution in  accordance  with  the  terms  of  the  will,  a  copy 
whereof  shall  be  annexed  to  the  said  petition. 

28.  NOTICE  OF  APPLICATION. 

Five  days'  notice  of  any  application  for  distribution  under 
the  provisions  of  rule  twenty-seven  shall  be  given  by  such 
executor,  substitutionary  administrator  with  the  will  annexed, 
or  administrator  with  the  will  annexed,  to  all  persons  inter- 
ested therein  who  are  residents  of  the  State  of  New  Jersey, 
and  not  less  than  hve  nor  more  than  sixty  days'  notice,  as  the 
court  may  by  order  direct,  to  all  persons  interested  therein 
who  reside  without  the  State  of  New  Jersey,  which  last  men- 
tioned notice  may  be  sent  by  mail  with  the  postage  thereon 
prepaid. 

VIII.  DISCHARGE       OF       EXECUTORS,       ADMINISTRA- 
TORS, GUARDIANS  AND  TRUSTEES. 

29.  NOTICE  OF  APPLICATION. 

An  executor  or  administrator  seeking  to  be  discharged 
from  the  further  duties  of  his  office  shall  give  to  all  the  par- 
ties interested  in  the  estate  of  which  he  is  such  executor  or 
administrator,  or  to  such  of  them  as  the  court  shall  direct,  at 
least  thirty  days'  notice,  in  writing,  of  his  intended  applica- 
tion to  the  Orphans'  Court  for  such  discharge,  unless  the 
Orphans'  Court,  for  good  cause  appearing  shall  otherwise 
order ;  and  where  any  of  the  said  parties  shall  reside  outside 
of  this  State,  such  notice  may  be  given  by  mailing  the  same 
to  their  post-office  addresses.  Guardians  seeking  to  be  dis- 
charged from  their  trust  shall  give  like  notice  in  like  manner 
to  their  wards,  to  the  nearest  of  kin  of  their  said  wards,  to 
any  person  standing  in  loco  parentis  to  their  said  wards  and 
also  to  the  persons  with  whom  their  said  wards  may  reside, 
or  to  such  of  them  as  the  court  shall  direct.  Trustees  seeking 
to  be  discharged  from  their  trust  shall  give  like  notice  in  like 
manner  to  their  cestui  que  trust  or  cestuis  que  trustent.  If  a 
cestui  que  trust  be  a  minor  or  nan  compos  mentis,  notice  shall 


Orphans'  Court  Rules.  897 

Ije  given  to  the  guardian,  if  any.  and  if  none,  to  the  nearest  of 
kin,  persons  standing  i'.i  loco  parentis  to  said  minor,  if  any, 
and  also  to  the  persons  with  whom  said  minor  shall  reside,  or 
to  such  of  them  as  the  court  shall  direct. 

IX.  SALE  OF  LANDS. 

30.  APPLICATION   TO   SELL  LANDS   IN   COUNTIES 
OTHER  THAN  THAT  IN  WHICH  LETTERS  ARE 

GRANTED. 

Where  applications  for  the  sale  of  lands  to  pav  dehts  shall 
be  made  to  the  Orphans'  Court  of  any  county  other  than  the 
county  in  which  letters  of  administration  or  probate  of  the 
will  shall  have  been  granted,  the  executor  or  administrator 
making  such  application  shall  present  to  said  Orphans'  Court  a 
certified  copy  of  the  will  and  of  the  letters  testamentary  issued^ 
thereon,  or  of  the  letters  of  administration,  as  the  case  may 
require,  and  also  a  certified  copy  of  the  inventory  of  the  per- 
sonal estate  of  the  testator  or  intestate:  which  copy  of  letters 
testamentary  and  will  and  inventory,  or  of  letters  of  adminis- 
tration and  inventory,  shall  be  filed  with  the  Surrogate  of  the 
county  in  which  such  api)lication   is  made. 

31.  PROSECUTION     OF     BOND     OF     HEIRS     AND 

DEVISEES. 

Where  the  heirs  of  an  intestate,  or  the  heirs  or  devi.sees  of 
a  testator,  shall  have  given  bond  to  the  executor  or  adminis- 
trator, with  the  approval  of  the  court,  upon  the  return  of  the 
rule  to  show  cause  for  the  sale  of  lands  for  the  ])avment  of 
debts,  the  court  shall,  before  making  any  order  for  the  prose- 
cution of  the  bond  or  for  the  sale  of  the  lands,  require  proof 
of  the  service  of  a  notice  u[)on  such  lieirs  or  devisees  and  their 
sureties,  if  they  be  still  living  and  rc^ident  in  ibis  State,  or.  if 
dead,  on  their  executors  or  administrators,  if  any  they  Iiavc- 
in  this  State,  of  the  intended  application  for  such  order. 

32.  NOTICE  BY  CREDITOR  OF  APPLICATION   FOR 

ORDER  TO  SELL  LANDS  TO  PAY  DEBTS. 
The  notice  to  an  executor  or  administrator  of  an  applica- 
tion, by  a  creditor,  requiring  him  to  take  proceedings  to  sell 


S98  Probate  Law  and  Practice. 

lands  to  pay  debts,  shall  be  served  on  such  executor  or  admin- 
istrator at  least  five  days  before  the  day  therein  named  for 
making  the  said  application ;  and  the  Orphans'  Court  may,  by 
citation  or  other  process,  require  the  executor  or  administra- 
tor to  appear  before  it  and  testify  as  to  the  amount  of  the 
personal  estate  and  debts  of  the  deceased. 

33.  APPLICATION    AND   REPORTS    TO    BE   UNDER 

OATH. 

All  applications  to  the  Orphans'  Court  for  the  sale  of 
lands,  all  petitions  by  substitutionary  administrators  with  the 
will  annexed  or  administrators  with  the  will  annexed  for  con- 
firmation of  sales  of  land,  and  all  reports  of  such  sales  to  said 
court  shall  be  verified  by  the  oath  or  affirmation  of  the  party 
making  the  same. 

34.  AFFIDAVITS  AS  TO  VALUE  OF  PROPERTY  TO 

BE  ANNEXED  TO  REPORTS  OF  SALES. 

Reports  of  sales  and  petitions  for  the  confirmation  of  sales 
by  substitutionary  administrators  with  the  will  annexed  or  ad- 
ministrators with  the  will  annexed,  shall  state  the  names  and 
addresses  of  all  parties  in  interest  and  shall  have  annexed 
thereto  affidavits  of  at  least  two  persons  familiar  with  the 
value  of  property  in  the  neighborhood  where  the  lands  so  sold 
are  located,  giving  the  fair  market  value  of  the  lands  and 
premises  so  sold. 

35.  NOTICE  OF  INTENTION  TO  REPORT  SALE  FOR 
CONFIRMATION. 

Notice  of  the  intention  of  any  executor,  administrator. 
guardian  or  trustee  to  make  report  of  any  sale  to  the  Orphans' 
Court,  or  of  any  application  by  a  substitutionary  administrator 
with  the  will  annexed  or  an  administrator  with  the  will  an- 
nexed for  the  confirmation  of  a  sale  of  lands  made  by  him 
shall,  unless  the  court  shall  otherwise  direct,  be  given  to  all 
persons  in  interest.  Five  days'  notice  of  such  application  shall 
be  given  to  all  persons  in  interest  who  are  residents  of  the 
State  of  New  Jersey,  and  not  less  than  five  nor  more  than 
sixty  days'  notice,  as  the  court  may  by  order  direct,  to  all  such 


Orphans'  Court  Rules.  S99 

persons  in  interest  who  shall  reside  without  the  State  of  Xew 
Jersey,  which  last  mentioned  notice  nia\-  he  sent  l)y  mail  with 
the  postage  thereon  prepaid. 

X.  SALE  OF  LANDS  BY  GUARDIANS. 

36.  BOND  OF  c;UARDIAX  Ox\  SALE  OF  LAND. 

The  Orphans'  Court  on  granting  an  order  to  a  guardian  to 
sell  land,  or  timher  on  the  land  of  his  ward,  shall  examine  as 
to  the  sufSciency  of  the  bond  of  the  guardian  previously  given, 
and  if.  in  its  judgment,  said  bond  is  insuf^cient,  it  shall  re- 
quire the  guardian  to  give  such  additional  bond  for  the  faith- 
ful execution  of  his  office  as,  in  its  judgment,  shall  be 
adequate. 

XI.  PARTITION. 

3;.  NOTICE  OF  APPLICATION. 

The  notice  of  application  upon  proceedings  in  partition, 
where  there  is  a  minor  or  minors  not  having  a  guardian,  shall 
be  served  upon  the  father  or  mother,  and  if  there  be  no  father 
or  mother,  then  on  one  or  more  of  the  nearest  of  kin  of  full 
age,  if  any  residing  in  this  State,  of  such  minor  or  minors  : 
and  it  shall  be  the  duty  of  the  court,  in  all  such  cases,  to  ap- 
point a  guardian  ad  litem   for  every  such  minor. 

XII.  DOWER. 

38.  NOTICE    TO    MINORS    ON    APPLICATION    FOR 

DOWER. 

The  notice  of  the  intended  apj)lication  to  the  Orphans" 
Court  for  the  appointment  of  commissioners  to  assign  dower 
to  a  widow  in  any  lands  or  real  estate  in  which  any  minor  or 
minors,  residing  in  this  State,  and  not  having  a  guardian,  may 
be  interested,  shall  be  served  on  the  father  or  mother,  and  if 
there  be  no  father  or  mother,  then  on  one  or  more  of  the 
nearest  of  kin  of  full  age,  of  the  minor  or  minors,  if  there  be 
any  residing  in  this  vState ;  and  if  such  a])plication  is  made  by 
the  mother  of  such  minor  or  minors,  then  the  notice  shall  be 


900 


Pkobatk  Law  axu  I^ractice. 


served  on  one  or  more  of  the  nearest  of  kin  of  the  minor  or 
minors,  of  the  blood  of  the  father,  if  any  such  there  be  resid- 
ing in  this  State,  and  if  none,  then  on  one  or  more  of  the 
nearest  of  kin  on  the  side  of  the  mother ;  and  it  shall  be  the 
duty  of  the  court,  in  all  such  cases,  to  appoint  a  guardian 
ad  litem   for  such  minor  or  minors. 

XIII.  NOTICES. 

39.  FIVE  DAYS'  SERVICE  OF  RULES,  NOTICES,  &c. 

There  shall  be  at  least  five  days'  service  of  all  notices  and 
rules  to  show  cause  and  process,  except  where  otherwise 
provided  or  where  the  court  otherwise  directs. 

40.  NOTICE  OF  ORDER  OF  PUBLICATION. 

The  notice  required  to  be  given  by  sections  67  and  lOO  of 
the  Orphans'  Court  Act  shall  be  given  by  setting  up  and  pub- 
lishing a  notice  stating  that  the  order  has  been  made,  at  what 
time  (its  date),  on  whose  application,  in  what  court  and  what 
directions  are  thereby  given,  and  not  by  setting  up  and  pub- 
lishing a  copy  of  the  order. 

XIV.  CORPORATIONS  AS  TRUSTEES,  &c. 

41.  CORPORATIONS  REQUIRED  TO  DEPOSIT  FUND 

WITH  REGISTER  BEFORE  ACTING. 

No  corporation  entitled  by  law  to  execute  trusts  or  to  act 
as  assignee,  administrator,  guardian,  receiver  or  trustee  shall 
be  appointed  to  such  office  until  it  shall  have  created  a  fund 
to  be  specifically  set  apart  for,  and  devoted  to  specially  se- 
curing its  liability  in  such  capacities  of  trust  and  confidence,  in 
accordance  with  the  provisions  of  the  act  entitled  "An  Act  con- 
cerning trust  companies  (Revision  of  1899)"  approved  March 
twenty-fourth,  one  thousand  eight  hundred  and  ninety-nine 
(Laws  of  1899,  page  450 ;  4  C.  S.  page  5658,  sec.  9),  and  shall 
have  deposited  with  the  Register  of  the  Prerogative  Court,  ac- 
cording to  the  scheme  prescribed  by  rules  thirty-eight,  forty- 
one  and  forty-two  of  that  court  securities  which  shall  repre- 
sent the  said  fund. 


Orphans'  Court  Rulks.  <-)oi 

42.  NO  DEPOSIT  REQUIRKD  IF  TRUST  COMPANY 

GIVES  SECURITY  IN  SAME  MANNER  AS 
NATURAL  PERSON. 

Nothing  in  these  rules  contained  shall  require  the  deposit  of 
any  such  fund  when  the  trust  company  appointed  gives  se- 
curity in  the  manner  prescribed  by  law  in  such  behalf  for 
natural  persons,  or  in  cases  where  the  trust  company  shall 
have  been  appointed  as  executor  or  trustee  by  any  will  or  deed. 

43.  AFFIDAA'IT.    STATEMENT    AND    CERTIFICATE 
OF  REGISTER  TO  ACCOMPANY  APPLICATION 

FOR  APPOINTMENT. 

Every  application  for  the  appointment  of  such  corporation 
to  act  as  such  assignee,  administrator,  guardian,  receiver  or 
trustee  shall  be  accompanied  by  an  affidavit  of  the  president, 
secretary  or  trust  officer  of  said  corporation  setting  forth  the 
matters  specihed  in  section  9  of  the  act  referred  to  in  rule 
forty-one  and  a  copy  of  the  latest  published  general  state- 
ment of  the  resources  and  liabilities  of  the  corporation,  such 
statement  in  no  case  to  be  of  a  date  more  than  six  months 
previous  to  the  application ;  there  shall  also  be  appended  to 
the  application  a  certificate  signed  by  the  Register  of  the 
Prerogative  Court,  showing  that  the  special  fund  required  by 
said  section  9  of  the  above  mentioned  act  remains  on  deposit 
with  him,  in  approved  securities,  stating  the  amount  thereof. 
The  said  affidavit  shall  be  filed  with  the  Surrogate,  and,  with- 
in thirty  days  after  such  appointment,  a  copy  thereof  shall  be 
transmitted  by  him  to  the  Register  of  the  Prerogative  Court. 
Such  corporation  shall  present  to  the  Court  or  Surrogate  on 
such  application  (but  need  not  file)  the  certificate  of  the  Com- 
missioner of  Banking  and  Insurance  issued  under  the  pro- 
visions of   section   5  of  the  above  mentioned  act. 

44.  BOND  REQUIRED  FROM  CORPORAI^ION. 

Upon  being  a])]jointed  to  any  such  office  as  is  mentioned  in 
rule  forty-one,  the  corporation  shall  give  l)on(l,  ])ut  without 
surety,  similar  to  the  bond  that  a  natural  ])erson  would  be 
obliged  to  give  if  he  or  she  were  appointed  to  sucli  office. 


902  Probate  Law  and  Practick. 

XV.  APPOINTMENT  OF  TRUSTEES. 

45.  NOTICE  OF  APPLICATION. 

When  any  trustee,  heretofore  or  hereafter  appointed  hy 
any  will,  shall  neglect  or  refuse  to  act,  or  shall  die  before  the 
execution  and  completion  of  the  trust  committed  to  him,  and 
any  interested  person  shall  intend  to  apply  to  the  Orphans' 
Cotirt  of  the  county  where  the  testator  resided  at  the  time  of 
his  death,  for  the  appointment  of  a  suitable  person  or  suitable 
persons  to  execute  such  trust,  the  person  intending  to  make 
such  application  shall  give  to  all  persons  interested  in  the 
execution  of  such  trust,  or  to  such  of  them  as  the  Court  shall 
by  its  order  direct,  when  they  reside  in  this  State,  at  least  five 
days'  notice  in  writing  of  such  intended  application ;  when 
any  of  said  parties  shall  reside  out  of  this  State,  the  notice 
shall  be  given  by  personal  service,  either  within  or  without 
this  State,  or  by  mailing  the  same  to  said  parties,  at  their  re- 
spective post-ofifice  addresses,  at  least  thirty  days  before  the 
day  designated  in  the  notice  for  making  such  application.  If 
any  cestui  que  trust  be  a  minor  or  nou  compos  mentis,  notice 
shall  be  given  to  his  or  her  guardian,  if  any,  and  if  none  to  his 
or  her  nearest  of  kin,  to  any  person  standing  in  loco  parentis 
to  said  minor  or  non  compos  and  also  to  the  persons  with 
whom  said  minor  or  non  compos  resides,  or  to  such  of  them 
as  the  court  shall  by  its  order  direct. 

XVI.  APPOINTMENT  OF  GUARDIANS  AD  LITEM. 

46.  PRACTICE   ON   APPLICATION    ON   BEHALF   OF 

INFANT  OR  INCOMPETENT. 

Whenever  it  shall  be  necessary,  in  any  cause  or  proceed- 
ing in  the  Orphans'  Court,  that  a  guardian  ad  litem  for  any 
infant  or  incompetent  party  thereto  should  be  appointed,  a  pe- 
tition may  be  presented,  by  the  infant  if  above  the  age  of  four- 
teen years,  or,  if  under  that  age,  by  his  guardian  aj^pointed  by 
the  Surrogate  or  Orphans'  Court,  his  father,  or  some  other 
friend  in  his  behalf,  praying  such  appointment.  In  the  case 
of  an  incompetent  party  the  petition  shall  be  by  his  guardian 
appointed  by  the  Orphans'  Court  or  some  next  friend  in  his 


(3ri'haxs'  Court  RuLE^i.  903 

behalf.  Annexed  to  the  petition  there  shall  be  an  agreement, 
by  the  person  petitioned  for  as  guardian,  to  accept  the  appoint- 
•  nient,  and  also  an  affidavit  that  the  petition  and  agreement 
were  duly  signed  by  the  persons  purporting  to  sign  them,  and 
verifying  the  age  of  the  infant. 

47-  WHERE  NO  APPLICATION  IS  MADE  ON  BEHALF 
OF  INFANT  OR  INCOMPETENT. 
If  no  ai:)plication  shall  be  made  by  or  on  behalf  of  the 
infant  or  incompetent  party  within  five  days  after  the  service 
upon  him  of  the  citation  or  other  authoritative  command  of 
the  court  to  appear,  &c.,  the  Orphans'  Court  may,  on  applica- 
tion on  behalf  of  the  party  instituting  or  prosecuting  the  \>vo- 
ceedings,  by  its  order  assign  a  guardian  ad  litem  for  said 
infant  or  incompetent  party ;  but  ten  days'  notice  of  such  api)li- 
cation  must  be  given  to  the  infant,  if  of  the  age  of  fourteen 
years  and  resident  within  this  State,  or,  if  under  that  age  or 
not  a  resident  in  this  State,  to  his  guardian  appointed  by  the 
Surrogate  or  Orphans'  Court,  if  any  there  be,  and  if  no  such 
guardian,  to  the  father  of  such  infant,  or,  if  no  father,  then  to 
the  mother,  or,  if  no  mother,  to  the  person  standing  in  loco 
parentis  to  the  infant  provided  such  guardian,  father  or  mother. 
&c.,  be  resident  in  this  State,  which  notice  may  be  served  at  the 
time  of  service  of  the  process  of  citation  or  at  any  time  there- 
after. If  such  guardian,  father  or  mother,  &c.,  be  not  resident  in 
this  State,  such  notice  shall  be  given  as  the  court  may  by  order 
direct.  In  the  case  of  an  incompetent  person,  ten  days'  notice 
of  such  application  shall  be  served  upon  him  and  also  upon  his 
guardian  appointed  by  the  Orphans'  Court,  if  any  there  be.  and 
if  no  such  guardian,  then  upon  such  persons  as  the  court  may 
by  order  direct. 

XVII.  AFFIDAVITS. 

48.  PROCTORS  OR  COUNSEL  NOT  TO  TAKE 
AFFIDAVITS. 
No  proctor  or  coun.sellor  .shall  take  any  affidavit  for  u>c  in 
any  proceeding  before  the  C:)rphans'  Court  or  Surrogate  in 
which  he  or  any  firm  of  which  he  is  a  mcmljcr  appears  as 
proctor  or  counsel  of  record. 


904  Probate  Law  and  Practice. 

XVIII.  APPEAL   FROM    SURROGATE. 

49.  PETITION  OF  APPEAL. 

In  all  cases  of  an  appeal  from  any  order  or  decree  of  the 
Surrogate,  the  party  appealing  shall  file  with  the  Surrogate  a 
petition  of  appeal,  addressed  to  the  Surrogate,  in  which  shall 
be  briefly  stated  the  order  or  decree  complained  of,  the 
grounds  of  appeal  and  the  names  of  all  persons  concerned; 
and  a  copy  thereof  shall,  within  ten  days  thereafter,  unless 
the  Orphans'  Court  shall  in  its  discretion  grant  further  time, 
be  served  upon  the  executor,  administrator  or  guardian,  in 
case  of  an  appeal  from  the  probate  of  a  will  or  from  an  order 
granting  letters  of  administration  or  guardianship,  and  in 
other  cases  upon  the  adverse  party. 

50.  APPELLANT   TO   CAUSE   ISSUE   OF   CITATION. 

The  appellant  shall,  within  ten  days  after  filing  any  petition 
of  appeal  with  the  Surrogate,  unless  the  Orphans'  Court  shall 
for  good  cause  grant  further  time,  cause  the  Surrogate  to  is- 
sue citations  to  all  the  persons  concerned,  named  in  said  peti- 
tion of  appeal,  to  appear  before  the  Orphans'  Court  of  the 
same  county  on  a  day  therein  to  be  named  and  shall  cause 
said  citation  to  be  duly  served  ;  and  the  said  Orphans'  Court 
shall  at  the  time  and  place  mentioned  in  said  citation,  or  at 
such  other  time  or  place  as  it  may  then  appoint,  hear  and 
determine  the  matter  in  controversy. 

51.  DISMISSAL  OF  APPEAL. 

If  appellant  shall  fail  to  serve  a  copy  of  the  petition  of  ap- 
peal as  provided  in  rule  forty-nine,  or  shall  fail  to  cause  cita- 
tion to  be  issued  by  the  Surrogate  as  provided  in  rule  fifty, 
or  shall,  after  citations  are  issued,  fail  to  cause  the  same  to  be 
duly  served  or  fail  to  diligently  prosecute  his  appeal,  any  party 
interested  in  the  proceedings  may  thereupon  apply  to  the 
Orphans'  Court,  upon  five  days'  notice  to  the  appellant,  to 
dismiss  the  said  appeal,  and  that  court,  may,  in  its  discretion, 
dismiss  the  said  appeal  with  costs. 


RULES 

OF  THE 

PREROGATIVE  COURT 

OF  THE 
STATE  OF  NEW  JERSEY. 

Promulgated  December  i,  1915,  to  Take  Effect  April  i,  1916. 

I.  OF    PROCTORS. 

1.  SOLICITORS  TO  BE  PROCTORS. 

All  solicitors  of  the  Court  of  Chancery  shall  be  proctors  of 
this  court. 

II.     OF  PLEADINGS. 

2.  PETITIONS  TO  BE  ADDRESSED.  TO  ORDINARY. 
All  petitions  shall  be  addressed  to  the  Ordinary. 

3.  CHARACTER    OF    PAP^R    AND    TYPEWRITING. 

Every  petition  and  other  pleading,  and  all  orders  and 
])apers  of  every  nature  intended  to  be  filed  in  any  proceeding 
shall  be  printed,  or  fairly  and  legibly  written  by  pen,  or  by 
typewriter  with  what  is  known  as  a  "black  record  ribbon,"  and 
the  ])aper  upon  which  said  pleadings  or  orders  are  printed  or 
written  shall  weigh  at  least  seven  jiounds  to  the  ream  of  five 
hundred  sheets. 

III.   PROBATE  OF  WILL  OR  ADMINISTRATION. 

4.  APiMJCATIOX   FOR   PKOBATh:  OK   LETTERS   OF 

ADMINISTR.ATION. 

'i'hc  applicat!(jn  for  probate  of  a  will,  for  letters  of  adminis- 
tration,   letters    oi    administration     with     the     will    annexed, 

905 


9o6  Probate  Law  and  Practice. 

for  substitutionary  administration,  or  for  substitutionary  ad- 
ministration with  the  will,  annexed,  shall  be  in  writing, 
verified  by  affidavit ;  such  application  shall  state  the  residence 
of  the  applicant,  the  names  of  the  heirs  and  next  of  kin  of  the 
deceased,  so  far  as  the  same  are  known,  with  their  residences 
or  post-office  addresses,  and  the  manner  or  degree  in  which 
they  severally  stand  related  to  him  or  her ;  and  shall  also  state 
the  ages  of  any  of  said  heirs  or  next  of  kin  who  may  be 
minors,  which  application  shall  be  recorded  by  the  Register 
in  a  book  to  be  kept  for  that  purpose. 

5.  RENUNCIATION     BY     OR     NOTICE     TO     NEXT 

OF  KIN. 
Where  application  for  administration,  for  administration 
with  the  will  annexed,  for  substitutionary  administration,  or 
for  substitutionary  administration  with  the  will  annexed  is  made 
by  any  person  other  than  the  next  of  kin  or  i)arty  tirst  enti.tled, 
or  Iw  one  of  several  equally  entitled  to  letters  of  administra- 
tion, the  person  making  such  application  shall  produce  to  the 
Court  the  renunciation  and  request  of  the  persons  so  entitled 
that  letters  be  issued  according  to  the  a]ii)lication.  or  proof  that 
at  least  ten  days'  notice  has  been  given  to  all  of  the  next  of 
kin  or  parties  by  law  entitled  to  such  administration  who  re- 
side in  this  State,  and  that  not  less  than  ten  nor  more  than 
6ixty  days'  notice,  as  the  Court  may  by  order  direct,  has  been 
given  to  the  said  next  of  kin  or  parties  by  law  entitled  to  such 
administration  who  shall  reside  without  this  State.  Notice  to 
non-residents  of  the  State  of  New  Jersey  may  be  sent  by  mail, 
with  the  postage  thereon  prepaid,  addressed  to  the  last  known 
residence  of  such  next  of  kin  or  parties  by  law  entitled  to 
such  administration  ;  which  application,  and  the  renunciation 
and  request,  if  any,  shall  be  recorded  in  a  book  to  be  kept  for 
that  purpose. 

6.  ADMINISTRATION  AFTER  FORTY  DAYS  FROM 

DEATH. 

If  the  executor  named  in  any  last  will  shall  not  apply  for 

probate  of  said  will  and  for  letters  testamentary  thereon  for 

forty  days  from  the  death  of  his  testator,  or  the  next  of  kin 

of  any  person  dying  intestate  shall  not  apply  for  administra- 


Prerogativk  Coi'RT  RuLi'S.  907 

tioii  for  forty  days  from  the  cleatli  of  the  intestate,  this  Court 
may  grant  letters  testamentary,  or  letters  of  administration,  as 
the  case  may  he.  to  any  fit  person  who  will  accept  the  same. 

7.  NOTICE  OF  APPLICATION  UXDKR  RULK  SIX. 

In  all  cases  where  application  for  letters  testamentary  or 
letters  of  administration  is  made  under  the  provisions  of  rule 
six.  the  petitioner  shall  give  at  least  ten  days'  notice  to  the 
executor,  if  any,  and  also  to  the  heirs,  widow,  next  of  kin 
or  persons  entitled  to  administration  who  are  residents  of  the 
State  of  New  Jersey,  and  not  less  than  ten  nor  more  than 
sixty  days'  notice,  as  the  Court  may  hy  order  direct,  to  the 
executor,  if  any.  and  also  the  heirs,  widow,  next  of  kin  or 
persons  entitled  to  administration  who  shall  reside  without  the 
State  of  New  Jersey,  or  to  those  of  them  whose  residences 
or  addresses  he  can  ascertain,  of  his  intention  to  make  such 
application  ;  which  notices  may  he  sent  hy  mail  with  the  postage 
thereon  prepaid.  Proof  of  service  of  the  aforesaid  notices 
shall  he  filed  with  the  register  of  this  court. 

8.  AFFIDAVIT  OF  VALUE  OF  ESTATE. 

Upon  application  to  this  Court  for  letters  of  administration, 
administration  with  the  will  annexed,  suhstitutionary  adminis- 
tration or  suhstitutionary  administration  with  the  will  annexed. 
the  applicant  shall  file  an  affidavit  of  the  value  of  the  estate 
for  administration  of  which  the  application  is  made. 

9.  RESIDENTS  PREFERRED  OVER  NON-RESIDENTS. 

Where  upon  an  ai)plication  for  letters  of  administration, 
administration  with  the  will  annexed,  suhstitutionary  ad- 
ministration, or  suhstitutionary  administration  with  the  will 
annexed,  it  shall  apj)ear  that  some  of  the  next  of  kin  or 
l>ersons  entitled  to  administration  are  residents  of  the  vState 
of  New  Jersey,  and  that  others  of  said  next  of  kin  or  persons 
entitled  to  administration  reside  without  the  State  of  New 
Jersey,  this  Court,  in  granting  letters  of  administration,  shall 
give  preference  to  the  residents  of  the  State  of  New  Jersev. 


9o8  Probatk  Law  and  Practice. 

10.  PROOF    REQUIRED    THAT    NO    CAVEAT    HAS 

BEEN  FILED  OR  DISPUTE  HAS  ARISEN. 

Probate  of  any  will  .shall  not  be  granted  by  this  Court,  nor 
shall  letters  of  administration  l)e  granted  by  it  in  any  case, 
until  proof  be  made  to  its  satisfaction  that  no  caveat  against 
proving  such  will  has  been  tiled  and  that  no  dispute  has  arisen 
as  to  the  right  of  administration,  in  the  ofiftce  of  the  Surrogate 
of  the  county  where  the  testator  or  intestate  resided  at  the 
time  of  his  death,  or  that  notice  has  been  given  to  all  persons 
concerned  of  the  application  to  this  Court  for  the  probate  of 
.said  will  or  for  letters  of  administration. 

11.  PROCEEDINGS  WHERE  WILL   IS   DISCOVERED 

AFTER  ADMINISTRATION  GRANTED. 

Where  administration  of  an  estate  has  been  granted  by  this 
Court,  and  afterwards  a  will  shall  1)e  produced  to  this  Court, 
or  where  probate  of  a  will  shall  have  been  granted  in  this 
Court  and  afterwards  a  later  will  shall  be  produced,  the  Regis- 
ter shall  issue  a  citation  to  all  persons  interested,  returnable  to 
this  Court,  to  show  cause  why  probate  of  such  will  should  not 
be  granted ;  and  upon  admitting  to  probate  such  will,  the 
Court  shall  require  the  administrator  or  prior  executor  to  make 
final  settlement  of  his  account,  and  shall  make  such  order  in 
relation  to  his  commissions  as  shall  be  just  and  equitable. 

SUBSTITUTIONARY  ADMINISTRATION. 

12.  SUBSTITUTIONARY  ADMINISTRATION   AFTER 
FORTY  DAYS  FROM  DEATH  OF  EXECUTOR  OR 

ADMINISTRATOR. 

In  all  cases  where  any  will  has  been  admitted  to  proljate  by 
this  Court  or  letters  of  administration,  administration  with  the 
will  annexed,  substitutionary  administration  or  substitutionary 
administration  with  the  will  annexed,  has  been  granted  by  it, 
and  the  executor  or  administrator  shall  die  before  fully  admin- 
istering the  estate  of  his  testator  or  intestate,  and  the  next  of 
kin,  residuary  legatee  or  persons  by  law  entitled  shall  not  apply 
for  substitutionary  administration  with  the  will  annexed  or  for 
substitutionary  administration,  as  the  case  may   require,   for 


Prerogative  Court  Rules.  909 

fortv  days  after  the  death  of  such  executor,  this  Court  may 
grant  letters  of  suhstitutionary  a(hninistration  with  the  wiU 
annexed  or  letters  of  suhstitutionary  administration,  as  the 
case  may  require,  to  any  fit  person  who  will  accept  the  same. 

13.  NOTICE     OF     APPLICATION     UNDER     RULE 

TWELVE. 

In  all  cases  where  application  for  letters  of  substitutionary 
administration  is  made  under  the  provisions  of  rule  twelve, 
the  petitioner  shall  give  at  least  ten  days'  notice  to  the  heirs, 
widow,  next  of  kin.  residuary  legatees  or  persons  hy  law  en- 
titled to  suhstitutionarv  administration  with  the  will  annexed 
or  to  substitutionary  administration,  as  the  case  may  be,  who 
are  residents  of  the  State  of  New  Jersey,  and  not  less  than 
ten  nor  more  than  sixty  days'  notice,  as  the  Ordinary  may  by 
order  direct,  to  the  heirs,  widow.' next  of  kin.  residuary  legatees 
or  persons  by  law  entitled  to  such  sul)stitutionary  administra- 
tion with  the  will  annexed  or  to  substitutionary  administra- 
tion, as  the  case  may  be,  who  shall  reside  without  the  State 
of  New  Jersey,  or  to  those  of  them  whose  residences  or  ad- 
dresses he  can  ascertain,  of  his  intention  to  make  such  ap- 
])lication,  which  notices  may  be  sent  by  mail,  with  the  postage 
thereon  ])repaid.  Proof  of  service  of  the  aforesaid  notices 
shall  be  filed  with  the  Register  of  this  Court. 

LETTERS     TESTAMENTARY     AND     LETTERS     OF     AD- 
MINISTRATION. 

14.  FORM  OF  LETTERS  OF  SUBSTITUTIONARY  AD- 

MINISTRATION. 

To  all  to  whom  these  presents  shall  come,  greeting: 
Whereas,  A.  B.,  late  of  the  County  of  M.,  in  the  State  of 
New  Jersey,  departed  this  life  intestate,  of  whose  goods,  chat- 
tels and  credits  administration  was  duly  committed  to  C.  D. : 
and  the  said  C.  D.,  after  taking  upon  himself  the  burden  of 
said  administration,  departed  this  life,  (or  was  removed  (or 
discharged)   from  the  said  office  by  .  as  the 

case  may  be).  Therefore  T.  E.  R.  W..  Ordinary  or  v'^urrogate- 
General  and  Judge  of  the  Prerogative  Court  of  the  State  of 
New   Jersey,   do   in   the   place   and   stead   of   the   said   C.    D., 


9IO  Probate  Law  and  Practice. 

hereby  substitute  and  appoint  E.  F.,  administrator  of  all  and 
singular  the  goods,  chattels  and  credits  of  said  intestate,  who 
is  duly  authorized  as  such  substituted  administrator  to  ad- 
minister the  same  agreebly  to  law. 

15.  FORM    OF    LETTERS    OF    SUBSTITUTIONARY 
ADMINISTRATION  WITH  THE  WILL  ANNEXED. 

To  all  to  whom  these  presents  shall  come,  greeting : 
Whereas  A.  B.,  late  of  the  County  of  M..  in  the  State  of 
New  Jersey,  died,  having  made  and  executed  a  last  will  and 
testament,  which  has  been  duly  proved  according  to  law  be- 
fore the  Ordinary  of  the  State  of  New  Jersey  ;  and.  whereas, 
the  said  testator  appointed  C.  D.  executor  thereof,  who,  after 
taking  upon  himself  the  burden  of  administration,  departed 
this  life  (or  was  removed  (or  discharged)  from  his  said  office 
by  ,  as  the  case  may  be).    Therefore  I, 

E.  R.  W.,  Ordinary  or  Surrogate-General  and  Judge  of  the 
Prerogative  Court  of  the  State  of  New  Jersey,  do  in  the  place 
and  stead  of  the  said  C.  D..  hereby  substitute  and  appoint 
E.  F.  administrator  of  all  and  singular  the  goods,  chattels,  and 
credits  of  the  said  testator,  who  is  duly  authorized  as  such 
substituted  administrator  to  administer  the  same  agreebly  to 
said  will. 

16.  FORM  OF  LETTERS  TO  BE  CHANGED  TO  AC- 

CORD TO  FACTS. 

If  the  appointment  is  in  substitution  of  an  administrator 
with  the  will  annexed  who  has  died,  been  removed,  or  dis- 
charged, the  form  is  to  be  made  to  accord  with  the  fact. 

17.  REGISTER  TO  SIGN  LETTERS. 

Letters  testamentary  and  letters  of  administration  shall  be 
signed  by  the  Register  of  the  Prerogative  Court. 

IV.  GUARDIANSHIP. 

18.  APPLICATION   FOR   LETTERS    OF   GUARDIAN- 

SHIP. 

Application  for  letters  of  guardianship  shall  be  in  writing, 
verified  by  affidavit ;    such  application  shall  state  the  age  and 


Prerogative  Court  Rules.  911 

residence  of  the  minor,  the  names  and  residences  of  his  near- 
est of  kin,  the  names  and  residences  of  all  persons  standing  in 
loco  parentis  to  such  minor,  if  any,  and  the  names  and  resi- 
dences of  the  persons  with  whom  he  resides,  and  shall  have 
annexed  thereto  an  affidavit  of  the  value  of  the  personal 
estate  of  said  minor  and  the  amount  of  the  income  from  any 
real  estate  belonging  to  him.  In  the  case  of  applications  by 
orphans  over  the  age  of  fourteen  years,  the  foregoing  affi- 
davit shall  be  made  by  some  person  having  personal  knowl- 
edge of  the  value  of  the  personal  estate  of  said  minor  and 
the  amount  of  the  income  from  any  real  estate  belonging  to 
him. 

19.  NOTICE  OF  APPLICATION  FOR  GUARDIANSHIP. 

W  here  application  for  letters  of  guardianship  of  an  orphan 
under  fourteen  or  guardianship  upon  the  estate  of  a  minor 
whose  father  is  living  is  made  by  any  person  other  than  the 
next  of  kin  or  party  first  entitled,  or  by  one  of  several  equally 
entitled  to  receive  letters  of  guardianship,  the  person  making 
such  application  shall  produce  to  this  Court  the  renunciation 
and  request  of  such  persons  so  entitled,  and  of  the  person 
or  persons  standing  in  loco  parentis  to  said  minor,  if  any, 
and  also  of  the  persons  with  whom  said  minor  resides,  that 
letters  be  issued  according  to  the  application,  or  proof  that 
at  least  ten  days'  notice  has  been  given  to  all  of  the  next  of 
kin  or  parties  by  law  entitled  to  such  guardianship,  and  to  all 
persons  standing  in  loco  parentis  to  said  minor,  if  any,  and 
also  to  the  persons  with  whom  said  minor  resides,  who  re- 
side in  this  State ;  or  that  not  less  than  ten  nor  more  than 
sixty  days"  notice,  as  this  Court  may  by  order  direct,  has  been 
given  to  the  said  next  of  kin  or  parties  by  law  entitled  to 
such  guardianship,  and  to  any  ])erson  standing  in  loco  parentis 
to  said  minor,  and  to  the  persons  with  whom  the  said  minor 
may  reside,  who  shall  reside  without  this  State.  Notice  to 
non-residents  of  the  State  of  New  Jersey  may  be  sent  by 
mail  with  tiie  postage  thereon  jircpaid,  addressed  to  the  last 
known  residence  of  such  next  of  kin.  persons  standing  in  loco 
parentis,  persons  with  whom  said  minor  mav  reside  or  par- 
ties by  law  entitled  to  such  guardianship.  'I'lie  application 
59 


912  Probate  Law  and  Practice. 

and  the  renunciation  and   request,  if  any,   shall  be   recorded 
by  the  Register  in  a  book  to  be  kept  for  that  purpose. 

20.  APPOINTMENT    OF    GUARDIAN    FOR    INFANT 

OVER  FOURTEEN  FOR  WHOM  A  GUARDIAN 

HAS  BEEN  APPOINTED  WHILE  UNDER 

FOURTEEN. 

In  case  any  orphan,  for  whom,  while  under  the  age  of 
fourteen  years,  a  guardian  has  been  appointed  by  this  Court, 
desires,  upon  arriving  at  the  age  of  fourteen  years,  to  choose 
another  guardian,  application  may  be  made  to  this  Court, 
which  application  shall  be  signed  by  the  minor  in  the  pres- 
ence of  the  Ordinary,  a  vice-ordinary,  or  a  special  master 
in  chancery  of  New  Jersey,  and  shall  be  in  conformity  with 
the  requirement  of  rule  eighteen. 

The  same  notice  of  such  application  shall  be  given  to  the 
existing  guardian,  and  also  to  the  next  of  kin,  persons  stand- 
ing in  loco  parentis  and  persons  with  whom  such  minor  may 
reside,  as  is  prescribed  in  rule  nineteen  ;  upon  such  applica- 
tion, the  Court  shall  inquire  into  the  circumstances  of  the 
case,  and  shall  take  such  action  in  respect  to  the  appointment 
of  a  guardian,  or  guardians,  for  such  minor  as  shall  seem  to 
be  for  his  best  interest  and  advantage. 

21.  PROOF  REQUIRED  THAT  NO  DISPUTE  AS  TO 

GUARDIANSHIP  HAS  ARISEN. 

Letters  of  guardianship  shall  not  be  granted  by  this  Court 
until  proof  be  made  to  its  satisfaction  that  no  dispute  has 
arisen  with  respect  to  the  right  of  guardianship  in  the  office 
of  the  Surrogate  of  the  county  where  the  minor  resides,  or 
that  such  notice  of  the  application  to  this  Court  for  such  let- 
ters of  guardianship  has  been  given  to  all  persons  concerned 
as  is  prescribed  in  rule  nineteen. 

22.  REGISTER  TO  SIGN  LETTERS. 

Letters  of  guardianship  shall  be  signed  by  the  Register  of 
the  Prerogative  Court. 


PrKrogativk  Court  Rulks.  913 

V.  INQUIRY  FOR  ABSENT  NEXT  OF  KIN. 

23.  NATURE  OF  INQUIRY  FOR  ABSENT  NEXT  OF 

KIN. 

Wherever  it  shall  appear  hy  any  petition  for  letters  of  ad- 
ministration or  guardianship  that  the  residence  or  post-office 
address  of  any  next  of  kin  or  other  i)ersons  entitled  to  notice 
of  such  application  shall  not  be  known,  the  applicant,  or  his 
proctor,  shall  make  diligent  and  careful  inquiry  therefor. 
Such  inquiry  shall  be  made  of  the  nearest  relatives  of  the  de- 
cedent or  minor,  if  known;  or  if  not  known,  such  inquiry 
shall  be  made  of  any  person  known  to  be  connected  with  the 
said  decedent  or  minor  by  marriage  or  in  business,  or  of  any 
person  who  the  applicant,  or  his  proctor,  making  the  inquiry, 
has  reason  to  believe  possesses  knowledge  of  the  residence 
or  post-office  address  of  such  absent  next  of  kii\  or  person 
entitled  to  notice  of  such  application ;  such  inquiries  may  be 
made  in  person  or  by  letter,  and  shall  state  that  application 
has  been  made  for  letters  of  administration  upon  the  estate 
of  such  decedent  (naming  him),  or  for  letters  of  guardian- 
ship for  such  minor  (naming  himj,  and  that  the  next  of  kin 
or  person  entitled  to  notice,  whose  residence  is  sought  to  be 
obtained,  is  interested  in  such  application,  and  that  the  ob- 
ject of  the  inquiry  is  to  give  him  notice  of  such  application, 
that  he  may  appear  and  protect  his  interests,  and,  in  the 
case,  of  an  ap])lication  for  guardianship,  the  interests  of  said 
minor.  When  such  inquiry  is  made  by  letter,  a  proper  post- 
age stamp  for  the  return  of  an  answer  shall  be  enclosed. 

Proof  of  such  inquiry  shall  be  made  by  the  affidavit  of  the 
ai)plicant,  or  his  proctor,  that  such  inquiry  has  l)een  made  in 
good  faith  and  without  success. 

VI.   SETTLEMENT  OF  ACCOUNTS. 

24.  VOUCHERS   TO   BE  LODGED  WITH   REGISTER. 

Executors,  administrators,  guardians  and  trustees  who  have 
noticed  their  accounts  for  settlement  in  this  Court  shall  lodge 
with  the  Register  the  vouchers  and  receipts  for  payments  and 
disbursements  claimed  therein  at   least   twenty   days  ])revious 


914  Probate  Law  and  Practice. 

to  the  day  on  which  said  account  is  noticed  for  settlement, 
Avhich  said  vouchers  shall  be  open  to  the  inspection  of  all 
interested  persons.  The  Register  shall  not  report  any  ac- 
count to  this  Court  for  allowance  and  settlement  unless  the 
said  vouchers  and  receipts  have  been  lodged  with  him  in 
compliance  with  this  rule. 

25.  NOTICE  OF  SETTLEMENT  OF  ACCOUNTS  TO 
BE  MAILED. 

In  addition  to  the  posting  and  publication  of  notices  of  set- 
tlement of  the  accounts  of  executors,  administrators,  guardians 
and  trustees  prescribed  by  law,  one  month's  notice  of  the  settle- 
ment of  all  accounts,  of  executors,  administrators,  guardians 
and  trustees,  together  with  a  statement  as  to  whether  counsel 
fees  and  commissions  will  be  applied  for  by  said  accountant 
on  the  allowance  of  said  account  by  the  Court,  shall  be  given 
by  said  accountant  to  all  persons  interested  therein,  which  no- 
tice may  be  sent  by  mail  with  the  postage  thereon  prepaid. 
In  case  any  person  interested  in  the  settlement  of  such  ac- 
count be  a  minor,  such  notice  shall  be  mailed  to  the  guardian 
of  such  minor  if  any,  if  there  be  no  guardian  then  to  the 
parent  or  other  person  standing  in  loco  parentis  to  said  minor. 
Proof  of  such  mailing  shall  be  filed  in  the  office  of  the  Register 
of  the  Prerogative  Court  before  the  day  on  which  the  said 
account  is  noticed   for  settlement. 

26.  PETITION  TO  BE  ANNEXED  TO  ACCOUNTS. 

All  accounts  of  executors,  administrators,  guardians  or 
trustees  shall  ha\e  annexed  thereto  a  petition,  which  shall  be 
addressed  to  the  Ordinary,  and  which  shall  contain  the  names 
and  addresses  of  all  persons  interested  in  said  accounting, 
and  shall  specify  which  if  any  of  such  persons  in  interest  are 
minors.  In  case  any  of  such  persons  in  interest  be  minors 
the  said  petition  shall  give  the  names  and  addresses  of  the 
guardians  of  such  minors  if  any,  or  if  there  be  no  guardian 
then  the  names  and  addresses  of  the  parents  or  other  persons 
standing  in  loco  parentis  to  such  minors ;  said  petition  shall 
also  contain  a  summary  of  the  account  and.  in  the  case 
of    a    first    accounting,    shall    recite    the    amount    of    the    in- 


Preroc.ative  Court  Rules.  915 

ventory.  the  amount  shown  hy  the  account  to  have  Ijcen 
collected  in  addition  thereto,  the  amount  of  expenditures  and 
the  balance  in  the  hands  of  the  accountant.  In  the  case  of  a 
second  or  other  accounting,  said  petition  shall  recite  the  bal- 
ance remaining;  in  the  hands  of  accountant  as  shown  in  his 
last  previous  account,  the  amount  received  during  the  jieriod 
covered  by  the  account,  the  amount  of  disbursements  shown 
by  the  account,  and  the  balance  in  the  hands  of  accountant. 
Such  petition  annexed  to  trustees'  accounts  shall  also  state 
the  receipts  and  disbursements  on  account  of  corpus  and  in- 
come separately.  The  petition  and  account  shall  be  verified 
by  the  oath  of  the  accountant,  and  shall  pray  for  the  allow- 
ance of  said  account,  and  also  for  the  allowance  of  commis- 
sions and  counsel  fees,  if  accountant  intends  to  apply  therefor. 

27.  EXCEPTIONS  TO  BE  IN  WRITING  AND  SPBXIFIC. 

When  exceptions  are  made  to  the  account  of  an  executor, 
administrator,  guardian  or  trustee,  such  exceptions  shall  be 
in  writing;  and  where  the  objections  are  to  disbursements, 
they  shall  state  specifically  the  item  or  items  and  particulars 
objected  to,  and  the  reasons  therefor. 

28.  STATEMENT  OF  ASSETS  TO  BE  ANNEXED  TO 

ACCOUNT. 

In  the  settlement  of  the  accounts  of  executors,  administra- 
tors, guardians  or  trustees,  the  accountant  shall  annex  to  the 
account  a  full  statement  or  list  of  the  securities,  investments 
and  assets  of  which  the  balance  of  the  estate  in  his  hands 
consists,  and  a  statement  of  all  changes  made  in  the  securities 
since  the  filing  of  the  inventory  or  since  the  last  settlement. 

29.  NOTICE   OF   RESETTLEMENT   ()F   ACCOUNTS. 

In  proceedings  for  the  re-settlemcnl  of  the  account  of  an 
executor,  administrator,  guardian  or  trustee,  at  least  five  days' 
notice  of  the  intended  apj^lication  shall  be  given  to  the  execu- 
tor, administrator,  guardian   or  trustee. 


gi6  Pkobatk  Law  axd  Pkactick. 

VII.  COMMISSIONS. 

30.  APPLICATION     FOR     COMMISSIONS     WHERE 

ESTATE  IS  LARGE. 

Application  for  commissions  in  all  cases  where  the  sums 
which  shall  come  into  the  hands  of  executors,  administrators 
or  trustees  shall  exceed  fifty  thousand  dollars,  or  where,  in 
the  case  of  guardians,  such  sums  shall  exceed  twenty  thou- 
sand dollars,  shall  be  accompanied  by  an  affidavit,  stating 
fully  the  pains,  trouble  and  risk  of  such  applicant  in  settling 
such  estate. 

31.  NOTICE   OF   ADJUSTMENT   OF   COMMISSIONS. 

Upon  the  adjustment  of  commissions  between  executors, 
administrators,  guardians  or  trustees,  this  Court  shall  not  de- 
termine the  matter  upon  the  application  of  some  or  one  ot' 
them  without  proof  that  not  less  than  five  days'  notice  of  such 
application  has  been  given  to  the  other  or  others. 

VIII.  INVESTMENT  OF  MONEYS. 

32.  EXECUTORS,    &c.,    TO    REPORT    FAILURE    TO 

INVEST. 

Executors,  administrators,  guardians  or  trustees  required 
to  retain  money  in  their  hands  shall  put  it  out  at  interest,  or 
apply  to  this  Court  for  an  order  so  to  do ;  and  in  case  they 
shall  not  be  able  to  find  proper  investment  therefor,  they  shall 
report  the  fact  to  the  Court  within  sixty  days  after  they  shall 
have  received  it,  or  after  they  shall  be  recjuired  to  retain  it 
or  to  invest  it ;  and  in  case  of  their  neglect  so  to  do,  they  shall 
be  accountable  for  interest  thereon. 

IX.  DISTRIBUTION. 

33.  PROOF  OF  NEXT  OF  KIN   ON   DISTRIBUTION. 

The  Ordinary,  ■  before  decreeing  the  distribution  of  the 
estate  of  any  person  dying  intestate,  shall  require  proof  in 
writing,  under  oath,  of  the  names  of  the  wife  and  children, 
if  any,  or  other  next  of  kin  of  the  intestate,  and  how  and  in 


Prerogativk  Court  Rulks.  917 

what  degree  such  other  next  of  kin  are  related  ;  which  proof 
niav  he  made  by  affidavit  of  the  administrator,  or  of  anyone 
having  knowledge  of  the  family  and  next  of  kin  of  the  de- 
ceased, unless  the  Court  shall  require  further  or  other  proof. 

34.  DISTRIBUTION  IN  CASE  OF  A  WILL. 

All  applications  by  executors,  substitutionary  administrators 
with  the  will  annexed,  or  administrators  with  the  will  annexed, 
for  a  decree  of  distribution,  shall  be  by  verified  petition  ad- 
dressed to  the  Ordinary,  which  petition  shall  recite  the  grant 
of  letters  to  petitioner,  the  names  and  addresses  of  all  per- 
sons interested,  the  allowance  of  petitioner's  account  by  this 
Court  and  the  balance  in  petitioner's  hands  for  distribution, 
and  shall  pray  for  an  order  of  distribution  in  accordance  with 
the  terms  of  the  will,  a  copy  whereof  shall  be  annexed  to  the 
said  petition. 

35.  NOTICE  OF  APPLICATION. 

Five  days'  notice  of  any  application  for  distribution  under 
the  provisions  of  rule  thirty-four  shall  be  given  by  such  execu- 
tor, substituted  administrator  with  the  will  annexed,  or  ad- 
ministrator with  the  will  annexed,  to  all  persons  interested 
therein  who  are  residents  of  the  State  of  New  Jersey,  and 
not  less  than  five  nor  more  than  sixty  days'  notice,  as  the 
Court  may  by  order  direct,  to  all  persons  interested  therein 
who  reside  without  the  State  of  New  Jersey,  which  last  men- 
tioned notice  may  be  sent  by  mail  with  the  postage  thereon 
prepaid. 

X.  DISCHARGE     OF     EXECUTORS.     ADMINISTRATORS, 
GUARDIANS   AND   TRUSTEES. 

36.  NOTICE  OF  APPLICATION. 

An  executor  or  administrator  seeking  to  be  discharged 
from  the  further  duties  of  his  office  shall  give  to  all  the 
jjarties  interested  in  the  estate  of  which  he  is  e.xecutor  or 
administrator,  or  to  such  of  them  as  the  Court  shall  direct, 
at  least  thirty  days'  notice,  in  writing,  of  his  intended  api)li- 
cation    to    the    Court    for    such    discharge,    unless    the    Court 


pig  PRiiROGATivE  Court  Rulks. 

for  good  cause  appearing,  shall  otherwise  order;  and  where 
any  of  the  said  parties  shall  reside  outside  of  this  State,  such 
notice  may  be  given  by  mailing  the  same  to  their  post-office 
addresses. 

Guardians  seeking  to  be  discharged  from  their  trust  shall 
give  like  notice  in  like  manner  to  their  wards,  to  the  nearest 
of  kin  of  their  wards,  to  any  persons  standing  in  loco  parentis 
to  their  wards  and  to  the  ])ersons  wdth  whom  their  wards  may 
reside,  or  to  such  of  them  as  the  Court  shall  direct :  and  trus- 
tees seeking  to  be  discharged  from  their  trust  shall  give  like 
notice  in  like  manner  to  their  cestui  que  trust  or  cestuis  que 
trustent.  If  the  cestui  que  trust  be  a  minor  or  }ion  compos 
mentis,  notice  shall  be  given  to  his  or  her  guardian,  if  any. 
and  if  none,  to  the  nearest  of  kin,  to  any  person  standing  in 
loco  parentis  to  such  minor  or  lunatic  and  to  the  persons  with 
whom  such  minor  or  lunatic  resides,  or  to  such  of  them  as 
the  Court  shall  direct. 

XI.  NOTICES. 
Z7.  FIVE  DAYS'  SERVICE  OF  RULES,  NOTICES,  &c. 

There  shall  be  at  least  live  days'  service  of  all  notices  and 
rules  to  show  cause  and  process,  except  where  otherwise  pro- 
vided. 

38.  NOTICES  OF  MOTIONS. 

Notices    of   motions    shall    designate    the   place   of   hearing 

either  as  "the  chancery  chambers  at "    (naming  a 

place  other  than  Trenton),  or  the  "State  House  at  Trenton," 
according  to  where  the  motions  shall  be  intended  to  be  made, 
and  they  shall  also  state  that  the  motion  will  be  made  before 
"the  Ordinary"  unless  the  case  shall  theretofore  have  been 
specially  referred  to  a  Vice  Ordinary,  in  which  case  the  no- 
tice shall  state  that  the  motion  will  be  made  before  the  Vice 
Ordinary  to  whom  such  reference  shall  have  been  made. 


Prkkogative  Court  Rules.  919 

XII.  CORPORATIONS  AS  TRUSTEES,  &c. 

39.  CORPORATIONS  TO  DEPOSIT  SECURITIES  BE- 

FORE APPOINTMENT. 

No  corporation  entitled  by  law  lo  execute  trusts  or  lo  act 
is  assignee,  administrator,  guardian,  receiver  or  trustee  shall 
be  appointed  to  such  office  until  it  shall  have  created  a  fund 
to  be  specifically  set  apart  for,  and  devoted  to  speciallv  se- 
curing its  liability  in  such  capacities  of  trust  and  confidence, 
in  accordance  \vith  the  provisions  of  the  act  entitled  "An  act 
concerning  trust  companies  (Revision  of  1899),"  approved 
March  twenty-fourth,  one  thousand  eight  hundred  and  ninety- 
nine  (Laws  of  1899,  page  450;  4  C.  S.  page  5658,  Sec.  9), 
and  shall  have  deposited  with  the  Register  of  this  Court  se- 
curities which  shall  rejjresent  the  fund. 

40.  NO  DEPOSIT  REQUIRED  IF  TRUST  CO.  GIVES 
.      SECURITY  IN  SAME  MANNER  AS  NATURAL 

PERSON. 

Nothing  in  these  rules  contained  shall  require  the  deposit 
of  any  such  fund  when  the  trust  company  appointed  gives 
security  in  the  manner  prescribed  by  law  in  such  behalf  for 
natural  persons,  or  in  cases  where  the  trust  company  shall 
have  been  appointed  as  executor  or  trustee  bv  anv  will  or 
deed. 

41.  AFFIDAVIT,    STATEMENT,   AND  CERTIFICATE 
TO  ACCOMPANY  APPLICATION  FOR  APPOINT- 
MENT. 

Every  appHcation  for  the  appointment  of  such  cori)oration 
to  act  as  such  assignee,  administrator,  guardian,  receiver  or 
trustee  shall  be  accompanied  by  an  affidavit  of  the  president, 
secretary  or  trust  officer  of  said  corporation,  setting  forth  the 
matters  specified  in  section  9  of  the  act  referred  to  in  rule 
thirty-nine,  and  a  copy  of  the  latest  published  general  state- 
ment of  the  resources  and  liabilities  of  the  corporation,  such 
statement  to  be  in  no  case  of  a  date  more  than  six  months 
previous  to  the  application  ;  there  shall  also  be  appended  to 
the   application   a   certificate   signed   by   the   Register   of   this 


920  Probate  Law  and  Practice. 

Court  showing  that  the  special  fund  required  by  said  section 
nine  of  the  above  mentioned  act,  remains  on  deposit  with  him, 
in  approved  securities,  stating  the  amount  thereof.  Such  cor- 
poration shall  present  to  the  Ordinary  on  such  application 
(but  need  not  file)  the  certificate  of  the  commissioner  of 
banking  and  insurance  issued  under  the  provisions  of  section 
five  of  the  above  mentioned  act. 

42.  CHARACTER     OF     SECURITIES     TO     BE     DE- 

POSITED. 

The  said  securities  shall  be  of  the  character  of  securities  in 
which  trust  funds  may,  by  law,  be  invested,  and  at  the  time 
of  the  deposit  thereof,  the  president  or  cashier  of  the  com- 
paii}-  making  such  deposit  shall  make  oath  in  writing,  which 
shall  be  filed  with  the  Register  of  this  Court,  as  to  the  in- 
trinsic value  of  any  property  upon  which  such  securities  shall 
then  be  a  lien. 

43.  MORTGAGES  DEPOSITED  TO  BE  ASSIGNED  TO 

REGISTER. 

In  case  any  securities  deposited  as  aforesaid  are  bonds  se- 
cured by  mortgages  upon  real  estate,  of  the  character  in 
which  trust  funds  may  by  law  be  invested,  said  mortgages, 
together  with  the  said  bonds,  shall  be  assigned  to  the  Regis- 
ter in  a  manner  to  be  approved  by  the  Ordinary,  but  until  de- 
fault by  the  trust  company  depositing  the  same  occurs,  by 
reason  of  which  recourse  may  be  had  to  said  fund,  said  com- 
pany shall  be  entitled  to  the  beneficial  interest  in  and  income 
from  said  bonds  and  mortgages  so  assigned,  and  the  Register 
of  this  Court  may  execute  a  power  of  attorney  in  favor  of 
said  trust  company,  in  a  form  to  be  approved  by  the  Ordinary, 
authorizing  said  company  to  receive  and  retain  for  its  own 
use  the  interest  or  income  arising  from  said  bonds  or  the 
mortgage  securing  the  same. 

44-  REGISTER  TO  RECEIVE  DEPOSIT  OF  SECURI- 
TIES. 

The  Register  of  this  Court  shall  receive  the  deposits  of 
securities  made  under  the  requiremeets  of  the  preceding  rules. 


Prerogativk  Court  Rules.  921 

and  shall  keep  the  same  in  such  nianucr  as  the  Ordinary  may. 
from  time  to  time,  by  order  direct. 

45.  REGISTER  TO  FILE  AFFID.W  ITS. 

The  Register  shall  hie  together  all  affidavits  contemplated 
by  rule  forty-one  of  this  Court,  rule  forty-three  of  the  Or- 
phans' Court  and  rule  two  hundred  and  fourteen  of  the  Court 
of  Chancery. 

46.  BOND  REQUIRED  FROM  CORPORATION. 

Upon  being  appointed  to  any  such  office  as  is  mentioned 
in  rule  thirty-nine,  the  corporation  shall  give  bond,  but  with- 
out surety,  similar  to  the  bond  that  a  natural  person  would 
be  obliged  to  give  if  he  or  she  were  ap])ointed  to  such  office. 

XIII.   PRACTICE    ON    APPLICATION    FOR    DIVISION    OF 
REAL   ESTATE. 

47.  FORM  AND  CONTENTS  OF  PETITION. 

All  applications  to  the  Ordinary  for  the  division  of  real 
estate  shall  l)e  by  petition,  and  the  allegations  of  the  said  peti- 
tion shall  be  verified  by  affidavit. 

48.  NOTICE  OF  APPLICATION  TO  RESIDENTS. 

Four  weeks'  notice  in  w^riting  of  any  intended  application 
for  the  division  of  real  estate  shall  be  served  on  all  parties 
interested  in  such  real  estate  who  shall  not  join  in  the  said 
petition  and  shall  reside  in  this  State,  or  on  the  guardians  or 
fathers  of  such  of  the  said  parties  as  are  minors,  and  who 
reside  in  this  State. 

49.  SERVICE  OF  NOTICE  ON  XOK-RESIDENTS. 

In  case  any  of  the  ])arties  concerned  in  such  application 
shall  reside  out  of  this  State,  or  cannot  be  found  therein, 
the  application  shall  be  advertised  for  thirtv  days,  in  such 
public  newspaper  or  newsi)apcrs  as  the  C^rdinar^•  shall  direct, 
before  Commissioners  shall  be  appointed  to  make  division  of  the 
estate ;  but  in  case  notice  shall  be  served  on  the  parties  with- 
out this  State  pursuant  tg  the  provisions  of  rule  forty-seven, 


922  Probate  Law  and  Practice. 

the  publication  as  aforesaid  shall  be  unnecessary ;  and  the 
order  appointing  commissioners  to  make  such  division  shall 
specify  the  day  and  date  on  which  they  shall  file  their  report 
in  the  Register's  office. 

50.  OATH  OF  COMMISSIONERS. 

The  commissioners  appointed  to  make  division  of  any  real 
estate  as  aforesaid  shall,  before  they  proceed  to  make  such 
division,  be  severally  sworn  or  affirmed,  as  the  case  may  re- 
quire, that  they  will  honestly,  faithfully  and  impartially  exe- 
cute the  trust  reposed  in  them  and  will  make  division  of  the 
estate  to  the  best  of  their  skill,  knowledge  and  judgment. 

51.  CONFIRMATION     OF     REPORT     OF     COMMIS- 

SIONERS. 

A  report  of  a  division  of  real  estate,  made  to  the  Ordinary 
and  filed  with  the  Register  as  aforesaid,  shall  not  be  approved 
and  made-  conclusive  until  five  days  after  such  report  shall 
have  been  so  made  to  the  Court. 

XIV.  AFFIDAVITS    AND    DEPOSITIONS. 

52.  BEFORE    WHOM     AFFIDAVITS     AND     DEPOSI- 

TIONS MAY  BE  TAKEN. 

The  Register  of  this  Court,  the  Surrogate  of  each  county 
and  the  masters  of  the  Court  of  Chancery  shall  have  full 
power  and  authority  to  take  affidavits  and  depositions  to  be 
used  in  this  Court ;  and  every  affidavit  and  deposition  which 
shall  be  made  or  taken  before  the  Register,  or  before  the 
Surrogate  of  any  county  in  this  State  or  a  master  of  the 
Court  of  Chancery,  shall  and  is  hereby  declared  to  be  as 
good  and  effectual,  to  all  intents  and  purposes,  as  if  the  same 
were  made  or  taken  before  the  Ordinary  himself. 

53.  PROCTORS  OR  COUNSEL  NOT  TO  TAKE  AFFI- 

DAVITS. 
No  proctor  or  counsellor  shall  take  any  affidavit   for  use 
in  any  proceeding  in  this  Court  in  which  proceeding  he,  or 
any  firm  of   which   he  is   a   member,   appears  as   proctor  or 
counsel  of  record. 


Prerocativk  Court  Rulks.  923 

XV.  APPOINTMENT     OF     GUARDIANS     AD     LITEM. 

54.  PRACTICE   ON   APPLICATIOX    OX    BEHALF   OF 

INFANT  OR  INCOMPETENT. 

Whenever  it  shall  be  necessary,  in  anv  cause  or  proceed- 
ing in  this  Court,  that  a  guardian  (7^  litem  for  any  infant 
or  incompetent  party  thereto  should  be  iippointed,  a  petition 
may  be  presented,  by  the  infant  if  above  the  age  of  fourteen 
years,  or,  if  under  that  age,  by  his  guardian  appointed  by  the 
Surrogate  or  Orphans'  Court,  his  father,  or  some  other  friend, 
in  his  behalf,  praying  such  appointment.  In  the  case  of  an  in- 
competent party  the  petition  shall  be  by  his  guardian  appointed 
by  the  Orphans'  Court  or  some  next  friend  in  his  behalf.  An- 
nexed to  the  petition  shall  be  an  agreement,  by  the  person 
petitioned  for  as  guardian,  to  accept  the  appointment,  and  also 
an  affidavit  that  the  petition  and  agreement  were  duly  signed 
by  the  persons  purporting  to  sign  them,  and  verifying  the  age 
of  the  infant. 

55.  WHERE    NO   APPLICATION    IS    MADE   ON    BE- 

■    HALF  OF  INFANT  OR  INCOMPETENT. 

If  no  application  shall  be  made  by  or  on  behalf  of  the 
infant  or  incompetent  party  within  five  days  after  the  service 
upon  him  of  the  citation  or  other  autlioritatixe  command  of  the 
Court  to  appear,  &c.,  this  Court  may,  on  ai)plication  on  behalf 
of  the  party  instituting  or  prosecuting  the  proceedings,  by  its 
order  assign  a  guardian  ad  litem  for  said  infant  or  incom- 
petent party ;  but  ten  days'  notice  of  such  application  must  be 
given  to  the  infant,  if  of  the  age  of  fourteen  years  and  resi- 
dent within  this  State,  or,  if  under  that  age,  or  not  a  resident 
in  this  State,  to  his  guardian  appointed  by  the  Surrogate  or 
Orphans'  Court,  if  any  there  be,  and  if  no  such  guardian,  to 
the  father  of  such  infant,  or,  if  no  father,  then  to  the  mother, 
or,  if  no  mother,  to  the  person  standing  in  loen  parentis  to  tlic 
infant  provided  such  guardian,  father  or  mother,  (K:c.,  be  resi- 
dent in  this  State,  wliich  notice  mav  be  served  at  the  time  of 
service  of  the  process  of  citation  or  at  any  time  thereafter. 
If  such  guardian,  father  or  mother,  &c.,  be  not  resident  in  this 
State,  such  notice  shall  be  given  as  the  Court  may  l)v  order 


924  Probate  Law  and  Practice. 

direct.  In  the  case  of  an  incompetent  person,  ten  days'  no- 
tice of  such  application  shall  be  served  upon  him  and  also 
upon  his  guardian  appointed  by  the  Orphans'  Court,  if  any 
there  be,  and  if  no  such  guardian,  then  upon  such  persons  as 
the  court  may  by  order  direct. 

XVI.  OF    THE    VICE    ORDINARIES. 

56.  GENERAL  REFERENCE  TO  VICE  ORDINARIES. 

Motions  and  applications  in  the  Prerogative  Court,  includ- 
ing applications  for  the  probate  of  wills  and  for  the  granting 
of  administration  or  guardianship,  may  be  made  to  the  vice 
ordinaries ;  and  the  same  are  hereby  referred  to  them  to  hear 
and  advise  orders  thereon  without  special  reference. 

57.  REFERENCES  OF  CAUSES  ON  FINAL  HEARING. 

The  tinal  hearing  of  causes  in  the  Prerogative  Court,  in- 
cluding appeals  from  the  Orphans'  Court,  may,  at  the  dis- 
cretion of  the  Ordinary,  be  referred  to  the  vice  ordinaries 
upon  motion  and  on  notice,  the  same  as  references  to  vice 
chancellors  are  made  in  chancery  ;  and  when  so  referred,  the 
proceedings  before  the  vice  ordinaries  shall,  as  nearly  as 
may  be,  be  the  same  as  on  references  by  the  Chancellor  to 
vice  chancellors. 

XVII.  APPEALS    TO    PREROGATIVE    COURT. 

58.  HOW  CONDUCTED. 

On  Appeal  to  the  Prerogative  Court  from  the  order,  sen- 
tence or  decree  of  the  Orphans'  Court,  or  from  proceedings 
of  any  Surrogate,  the  proceedings  in  this  Court  shall  be  con- 
ducted by  proctor  and  counsel,  and  by  guardians  ad  litem  of 
minors,  according  to  the  practice  of  the  Court  of  Chancery, 
except  as  hereinafter  specified. 

59.  NOTICE  OF  APPEAL. 

Notice  of  appeal  from  the  order,  sentence  or  decree  of  the 
Orphans'  Court,  or  from  proceedings  of  any  Surrogate,  to 
this  Court,  shall  be  filed  with  the  Surrogate ;    said  notice  shall 


Pri:roc.ativk  Court  Ruli'S.  925 

state  shortly  the  parts  of  the  order  or  decree  appealed  from, 
and  a  copy  thereof  shall,  within  five  days  from  the  hlino^ 
thereof,  unless  the  court  shall  in  its  discretion  grant  further 
time,  be  served  upon  the  adverse  party,  or  upon  his  proctor 
if  he  appeared  by  proctor  in  the  court  below. 

60.  PETITION  OF  APPEAL. 

In  all  cases  of  appeal  to  this  Court  from  any  order,  sen- 
tence or  decree  of  the  Orphans'  Court,  or  from  the  proceedings 
of  any  Surrogate,  the  party  appealing  shall,  within  thirty  days 
after  filing  his  notice  of  appeal  with  the  Surrogate,  unless  this 
Court  shall  in  its  discretion  grant  further  time,  file  his  ]:)eti- 
lion  of  appeal  with  the  Register  of  this  Court,  and  shall 
within  five  days  after  filing  the  same  serve  a  copy  thereof 
on  the  adverse  party,  or  upon  his  proctor  if  he  appeared  by 
proctor  in  the  court  below,  or  the  appeal  shall  be  considered 
as  waived  ;  and  any  party  interested  in  the  proceedings  in  the 
court  below  may  thereupon  apply  to  this  Court  to  dismiss  the 
appeal  with  costs. 

61.  FORM     AND     CONTENTS     OF     PETITION     OF 

APPEAL. 

The  petition  of  appeal  shall  be  addressed  to  this  Court, 
shall  briefly  state  the  general  nature  of  the  proceedings  in 
the  court  below,  and  shall  specify  the  part  or  parts  thereof 
complained  of  as  erroneous,  except  where  the  whole  sentence, 
order  or  decree  is  alleged  to  be  erroneous,  in  wliich  case  it 
shall  be  sufficient  to  state  that  the  same  and  every  part  thereof 
is  erroneous. 

62.  PETITION    OF    APPEAL    FROM    DECREE    ON 

ACCOUNT. 

Where  the  appeal  is  from  the  sentence  or  decree  of  the 
0"phans'  Court  on  the  settlement  of  the  account  of  an  execu- 
tor, administrator,  guardian  or  trustee,  if  the  appellant  wishes 
to  review  the  decision  of  the  Orphans'  Court  as  to  the  allow- 
ance or  rejection  of  any  particular  items  of  the  account,  such 
items  shall  be  specified  in  the  petition  of  a]ipcal,  or  the  .allow- 
ance or  disrillowance  of  any  such   items  shall   not   be  consid- 


926  Probate  Law  and  Practice. 

ered  a  sufficient  ground  for  reversing  or  modifying  the  sen- 
tence or  decree  appealed  from.  The  respondent,  in  his  an- 
swer to  the  petition  of  appeal  in  such  cases,  may  also  specify 
any  items  in  the  account  as  to  which  he  supposes  the  sentence 
or  decree  is  erroneous  as  against  him  and  in  favor  of  the 
appellant;  and  upon  the  hearing  of  the  parties  upon  such  ap- 
peal, the  sentence  or  decree  of  the  Orphans'  Court  may  be 
modified,  as  to  any  such  items,  in  the  same  manner  as  if  a 
cross-appeal  had  been  brought  by  such  respondent. 

63.  DEPOSIT  ON  APPEAL. 

In  all  cases  of  appeal  from  any  order,  sentence  or  decree 
of  the  Orphans'  Court  or  from  the  proceedings  of  any  Sur- 
rogate, the  party  appealing  shall,  within  ten  days  after  filing 
his  petition  of  appeal  in  this  Court,  deposit  with  the  Register 
one  hundred  dollars,  to  answer  the  costs  of  the  appeal  if  the 
appellant  shall  not  prosecute  the  same  with  efifect ;  and  in 
default  thereof,  the  said  appeal  may  be  dismissed  by  this 
Court  with  costs. 

64.  APPELLANT  TO  FILE  TRANSCRIPT. 

The  party  appealing  shall  cause  a  transcript  of  all  the  pro- 
ceedings before  the  Orphans"  Court  or  Surrogate  to  be  made, 
authenticated  and  returned  to  this  Court  within  thirty  days 
from  the  time  of  filing  the  notice  of  appeal  in  the  court  be- 
low, unless  further  time  is  allowed  by  this  Court,  and  in  de- 
fault thereof,  the  court  may  dismiss  the  appeal. 

65.  WHEN   TRANSCRIPT   REQUIRED   TO   BE 

PRINTED  AND  SERVED. 

In  case  of  appeal  to  the  Prerogative  Court  from  a  sentence 
or  decree  of  the  Orphans'  Court,  the  party  appealing  shall 
cause  the  evidence  which  has  been  reduced  to  writing  in  the 
court  below  and  all  exhibits,  decrees,  orders,  petitions,  •  .ac- 
counts and  other  paper  necessary  to  the  presentation  of  the 
question  at  issue,  if  they  together  exceed  one  hundred  folios 
in  length,  to  be  printed,  or  typewritten  if  the  court  shall  so 
order,  and  shall  deliver  a  copy  thereof  to  the  Ordinary,  and 
a  copy  to  each  opposing  party,  at  least  twenty  days  before 


Prerogativk  Court  Rulks.  927 

the  time  of  hearing  the  appeal ;    and  on   laikire  thereof,  the 
appeal  may  he  dismissed. 

66.  ANSWER  TO  PETITION  OF  APPEAL. 

The  respondent  shall  file  an  answer  to  the  petition  of  ap- 
peal within  fifteen  days  after  the  service  of  a  copy  of  said 
petition  of  appeal;  and  in  default  thereof,  upon  proof  by 
aflfidavit  of  the  service  of  the  petition  of  appeal  upon  re- 
spondent, or  his  proctor  if  he  has  appeared,  either  in  this 
Court  or  the  court  below,  by  a  proctor  of  this  Court,  the  ap- 
pellant may  have  an  order  of  course  that  the  appeal  be  heard 
ex  parte  as  against  such  respondent. 

67.  APPOINTMENT  OF  GUARDIAN  AD  LITEM  FOR 

INFANT  PARTY. 

Where  any  respondent  is  a  minor,  if  he  does  not  procure 
a  guardian  ad  litem  upon  the  appeal  to  be  appointed  within 
five  days  after  the  service  upon  him  of  the  notice  of  appeal, 
the  appellant  may  apply  to  this  Court  ex  parte  for  the  ap- 
pointment of  such  guardian,  which  application  shall  be  pur- 
suant to  the  provisions  of  rule  fifty-four. 

68.  NOTICE  OF  MOTION  TO  DISMISS  APPEAL. 

No  motion  to  dismiss  an  appeal  in  this  Court  shall  be 
heard  unless  five  days'  notice  of  such  motion  has  been  given, 
or  unless  moved  in  the  presence  of  the  appellant  or  his 
proctor. 


60 


928 


Probate  Law  and  Practice;. 


MORTALITY    TABLES. 

Present  value  at  four  per  cent,  interest  of  an  annuity  of  $i  during 
life,  first  payment  to  be  made  at  the  end  of  the  year;  also 
showing  the  widow's  percentage  of  the  net  proceeds  arising 
from  the  sale  of  land  in  which  she  is  entitled  to  dower,  her 
age  at  the  time  of  sale  being  given. 


AGK. 

Present  value  of -.$1 
per    annum.         "      | 

Widow's    percentage 
of  sale. 

AGE. 

Present  value  of  fl  ' 
per  annum.              | 

t 

Widow's    percentage 
of  sale. 

AGE. 

Present  value  of  $1 
per    annum. 

Widow's    percentage 
of  sale. 

V, 

19.0283 

1 
25.3711 

43 

14.7494 

.19.66.39 

71 

5.9928 

7.9904 

16 

18.9417 

25.25.56 

.44 

14.. 5025 

19. 3367 

72 

5.6849 

7.5799 

17 

18.8.515 

25.1353 

45 

14.2477 

18.WJ69 

73 

5.3829 

7.1772 

18 

18.7.574 

25.0099 

46 

13.9849 

18.6465 

74 

5.0862 

6.7816 

19 

18.6596 

24.8795 

•17 

13.7144 

18.2859 

75 

4.7938 

6.3917 

■20 

18.5.579 

24.7439 

48 

13.4362 

17.9149 

76 

4.5051 

6.0068 

21  \ 

18.4520 

24.6027 

49 

13.1507 

17.5343 

77 

4.2198 

5.6257 

,^2    . 

.,,  18.3420 

24.4.560 

50 

12.8583 

17.1444 

7S 

3.9363 

5.2484 

23 

''  18.2277 

24.3036 

51 

12.5595 

16.7460 

79 

3.6564 

4.87.52 

24  . 

■    18.1089 

24.14.52 

52 

12.2546 

16.3395 

■80  . 

!tfR79e 

;;     4.5061 

2.5 

17.9854 

23.9805 

53 

11.9440 

15.92S3 

81 

.^.lo83 

4.1444 

26 

17.8568 

23.8091 

54 

11.6280 

15.5040 

82" 

2.8420' 

'  3.7893 

27  , 

17.7233 

23.6311 

55 

11.3072 

15.0763 

83 

2;.  57.96 

3.4395 

28 

17.5846 

23.4461 

56 

10.9820 

14.6427 

84 

■2.3184 

3.0&12 

.29    . 

J7.4404 

23.2539 

57 

10.6530 

14.2040 

85 

2.0574 

2  7432 

'  30    '■ 

=  ■•17.2900 

23.0541 

.58 

10.3207 

13.7609 

86 

1.7989 

2.d9S5 

31  ; 

17.13.51 

22.8468 

.59 

9,9855 

.13.3140 

87 

1.5478 

2.0637 

.32 

16,9735 

22.6313 

60 

9.6481 

12.8641 

88 

1.3096 

1.7461 

33 

'  ■  1G.8056 

22.4075 

61 

■      9.3092 

12A123 

89 

1.0847 

1.4463 

34 

16:6316 

22.17.55 

62 

8.9695 

11.9593 

90 

0.8673 

1.1564 

35 

16.4.510 

21.9347 

63 

8.6296 

11.5061 

91 

0.6536 

0.8715 

3© 

16.2634 

21.6845 

64 

8.2901 

11.0535 

92 

0.4539 

0.6052 

37 

16.0691 

21.4255 

65 

7.9318 

10.6024 

93 

0.2907 

0.3876 

38 

15.8676 

21.1568 

66 

7.61.56 

10.1541 

94 

0.1374 

0.183" 

39 

15.6591 

20.8788 

67 

7.2822 

9.7096 

40 

15.4431 

20.5908 

68 

6.9524 

9.2699 

41 

15.2196 

20.2928 

69 

6.6272 

8.8363 

42 

14.9884 

19.9845 

70 

6.3070 

8.4093 

]yl()RTALiTv  Tablks. 


929 


Present  value  of  $1  per  annum,  to  be  received  during  the  life  of  a 
person  whose  age  is  given;  also  showing  the  widow's  per- 
centage of  the  net  proceeds  arising  from  the  sale  of  land  in 
.  which  she  is  entitled  to  dower,  her  age  at  the  time  of  the  sale 
being  given.  Calculated  by  the  Carlisle  Table  of  Mortality, 
and  interest  at  six  per  cent. 


C    of   !fl 

,  or  No. 
liase. 

0 

a 

ZJ 

^  c  2 

u 

SO 

OS 

a 
0 

AOK. 

3    r-    D 

=  35 
>a  ft 

=  «£ 
S?  t.  a 
0I  «  i> 
Sft>> 

0  " 

1°, 

AGK. 

5  —  t- 
«  3  5 

C)  ^  w 
aj  <U  0/ 

C 
0 

AGK. 

■5  2  '^ 

S  3  5 
>  a  ft 

S!  '-'  * 
£  ft  >> 

0  " 

.=    0 

ir, 

$14,126 

$28.2r.2 

44 

$11,551 

$23,102 

1 
73 

$5,170 

$10,340" 

16 

14.067 

28.134 

.45 

11.428 

22.856 

74 

4.944 

9.888 

]7 

14.012 

28.024 

40 

11.296 

22.. 592 

75 

4.760 

9.520 

18 

13.9.-.6 

27.912 

47 

11.1.54 

22.308 

76 

4.579 

•  9.1.58 

19 

13.897 

27.794 

48 

10.998 

21.996 

77 

4.410 

S.820 

20 

13.83) 

27.670 

49 

10.823 

21.646 

78 

4.238 

8.476 

•21 

13.769 

27.r,.38 

50 

10.631 

21.262 

i     79 

4.040 

s.oso- 

•'2 

13.697 

27.394 

.51 

10.422 

20.844 

80 

3.8.58 

7. 716 

23 

13.621 

27.242 

52 

10.208 

20.416 

i     81 

3.6.56 

7.312 

24 

13.-)41 

27^082 

:<s 

9.988 

19.976 

i     82 

3.474 

6. 948 

'2t 

13.4.-)6 

26.912 

54 

9.761 

19.522 

83 

3.286 

6.-572 

26 

13.368 

26.736 

00 

9.524 

19.048 

84 

3.102 

6.204 

27 

13.27.1 

26.550    1 

;56 

9.280 

18.. 560 

85 

2.909 

5.818 

28 

13.182 

26.364    ! 

57 

9.027 

18.054 

!    86 

2.739 

5.478 

29 

13.096 

26.192 

58 

8.772 

17.544 

I     87 

2.599 

5.198 

30 

13.(120 

26.040 

59 

8.529 

17.0.58 

1    m 

2.. 515 

5.030 

■.'A 

12.942 

2.5.884 

60 

8.304 

16.608 

89 

2.417 

4.834 

32 

12.860 

25.720 

61 

8.108 

16.216 

!     90 

2.266 

4.532 

33 

12.771 

25.542 

62 

7.913 

15.826 

91 

2.248 

4.49G 

34 

12.675 

25.350    ■ 

63 

7.714 

15.428 

'     92 

2.337 

4.674 

3.'. 

]2..>73 

2.5.146    : 

64 

7.502,. 

15.004 

1     93 

2.440 

4.880 

?,C 

12.46.-) 

24.9,30 

65 

7.281 

14.562 

94 

2.492 

4.9W 

37 

12. 3 -.4 

24.706     ' 

66 

7.049 

14.098 

95 

2.. 522 

5.044 

.38 

12.2.39 

24.478    i 

67 

6.803 

13.606 

96 

■     2.486 

4.972' 

39 

12.120 

24.240 

68 

6., 546 

13.002 

97 

2.368 

4.736 

40 

12.002 

24.004     i 

69 

6.277 

12.554 

;     98 

2.227 

4.4.54 

41 

11.890 

23.780    ! 

70 

5.998 

11.996 

!  99 

2.004 

4.0O8 

42 

11.779 

23.558    ; 

71 

5.704 

11.408 

i  100 

l.,596 

3.192 

43 

11.668 

23.3.36    , 

72 

5.424 

10.848 

10! 

1.175 

2.3.-|0 

Rule  for  Computing  the  Value  of  the  Life  Estate  or  Annuity. 

Calculate  the  inlcrcsL  at  six  per  cent.,  fur  one  year,  upun  the  .sum  to 
the  income  of  which  the  per.SQii  is  entitled  ;  multiply  this  interest  by  the 
number  of  years'  purchase  set  opppsitc  the  person's  age  in  the  table, 
and  the  product  is  the  gross  value  of  the  life  estate  of  such  person  iu 
said  sum. 

Example. 

Suppose  a  widow's  age  is  2p,  and  she  is  entitled  to  dower  in  real 
estate -worth  $350.75;  one-third  of  this  is  $116.91  2-3;  interest  on 
$116.91,  one  year,  at  six  i)er  cent.,  is  $7.01;  the  number  of  years'  pur- 
chase, which  an  annuity  of  $1  is  worth,  at  the  age  of  y],  as  appears  b\ 
the  table,  is  12  years  and  354.1000  parts  of  a  year,  which,  multiplied  by 
$7.01,  the  income  for  one  year,  gives  $86.60  and  a  fraction,  as  the  gro.s's. 
\alue  of  her  right  of  dower. 


930 


Probate  Law  and  Practicf.. 


Showing  the  present  value  of  a  life-right  in  the  income  of  $ioo,  at 
every  age,  calculating  the  interest  at  five  and  at  six  per 
cent.,  according  to  Dr.  Wigglesworth's  Table  of  Mortality. 


Age 


1 

a 

a      ! 

^      1 

c. 

p. 

o 

f 

X 

S 

OS 

Age 


Age 


Age 


0 

49.01 

51.50 

24 

68.08 

72.31 

48 

50.02 

W.24 

72 

31.64 

3.J.9-. 

1 

64.39 

67.61 

25 

67.87 

72.14 

49 

58.25 

63.50 

73 

30.32 

34.. 51 

2 

68.13 

71.51 

26 

67.62 

71.92 

50 

57.44 

62.72 

74 

29.04 

33.11 

3 

70.78 

74.30 

27 

67.30 

71.63 

51 

56.60 

61.90 

75 

27.76 

31.70 

4 

72.55 

76.19 

28 

66.98 

71.34 

52 

55.73 

61.05  ; 

76 

26.42 

30.23 

5 

73.34 

77.06 

29 

66.66 

71.06 

53 

54.83 

60.16 

77 

25.09 

28.76 

6 

73.56 

77.32 

30 

66.35 

70.78 

54 

53.89 

59.23 

78 

23.78 

27.30 

7 

73.73 

77.55 

31 

66.04 

70.51 

55 

52.91 

58.25 

79 

22.52 

25.89 

8 

73.72 

77. .59 

32 

65.74 

70.25 

56 

51.88 

57.23 

80 

21.33 

24.56 

9 

73.53 

77.44 

33 

65.45 

69.99 

57 

50.82 

56.15 

81 

20.08 

23.16 

10 

73.23 

77.17 

34 

65.17 

69.75 

58 

49.70 

55.08 

82 

18.88 

21.80 

11 

72.69 

76.65 

35 

64.89 

69.52 

59 

48.53 

53.83 

83 

17.84 

20.63 

12 

72.10 

76.07 

36 

64.51 

69.17 

60 

47.31 

52.58 

84 

17.11 

19.81 

13 

71.48 

75.47 

37 

64.13 

68.83 

61 

46.03 

51.25 

85 

16.90 

19.60 

14 

70.84 

74.82 

38 

63.75 

68.50 

62 

44.68 

49.^ 

86 

15.53 

18.03 

15 

70.16 

74.14 

39 

63.37 

68.16 

63 

43.27 

48.36 

87 

14.33 

16.66 

16 

69.88 

73.89 

40 

62.99 

67.84 

64 

41.78 

46.78 

88 

13.48 

15.69 

17 

69.64 

73.67 

41 

62.63 

67.52 

65 

40.21 

45.10 

89 

13.09 

15.25 

18 

69.41 

73.46 

42 

62.26 

67.21 

66 

39.07 

43.90 

90 

14.03 

16.39 

19 

69.18 

73.27 

43 

61.91 

66.91 

67 

37.90 

42.66 

91 

12.41 

14.53 

20 

68.96 

73.07 

44 

61.57 

66.63 

68 

36.70 

41.39 

92 

10.49 

12.31 

21 

68.75 

72.89 

45 

61.19 

66.31 

69 

35.48 

40.08 

93 

8.58 

10.10 

22 

68.51 

72.68 

46 

60.49 

65.65 

70 

34.22 

38.74 

94 

6.75 

7.96 

23 

68.29 

72.49 

47 

.59.77 

64.96 

^71 

32.95 

37.36 

95 

5.19 

6.13 

This  table  exhibits  the  value  of  a  life-right  in  the  income  of  $ioo. 
supposing  the  rate  of  interest  to  be  five  or  six  per  cent.  Thus,  the 
value  of  the  life-right  of  a  person  aged  50,  interest  being  six  per  cent.. 
is  62.72  per  cent.  Subtracting  this  from  $100,  leaves  the  present  value 
of  the  reversion  37.28  per  cent.  Hence,  if  the  estate  was  worth  $10,000, 
the  present  value  of  the  life-right  would  be  $6,272,  and  the  present 
value  of  the  reversion  $3,728. 


Mortality  Tables. 


931 


Showing  the  value  of  a  widow's  dower  in  the  income  of  $100,  at 
every  age,  calculating  the  interest  at  five  and  six  per  cent., 
according  to  Dr.  Wigglesworth's  Table  of  Mortality. 


Age 

a 

0 

^       1 
B. 

Age 

1 

> 

s   i 

Age 

1 

a. 

3     1 
u     1 

4)           ■ 

"=•       i: 
>'•         ■ 

-     -11 

Age 

& 

a 
a, 

c; 

u, 

u 

C. 

JK 

00 

0 

16.34 

17.17 

1 
24 

22.69 

24.10 

vt 

19.67 

21.41 

72 

10.55 

11.98 

1 

21.46 

22.54 

25 

22.62 

24.05 

!   49 

19.42 

21.17 

73 

!     10.11 

11.. 50 

2 

22.71 

23.84 

26 

22.54 

23.97 

5C 

19.15 

20.91 

!  74 

9.68 

11.04 

3 

23.59 

24.77 

27 

22.43 

23.88 

51 

18.87 

20.63 

75 

9.25 

10.. 57 

i 

24.18 

25.40 

28 

22.33 

23.78 

52 

18.58 

20.35 

76 

8.81 

10.08 

0 

24.45 

25.69 

29 

22.22 

23.69 

53 

18.28 

20.05 

1  77 

8.36 

9.59 

6 

24.52 

25.77 

30 

22.12 

23.59 

i     ^ 

17.96 

19.74 

'78 

7.93 

9.10 

7 

24.58 

25.85 

31 

22.01 

23.50 

55 

17.e4 

19.42 

79 

7.51 

8.03 

8 

24.57 

25.86 

32 

21.91 

23.42 

50 

17.29 

19.08 

80 

7.11 

8.19 

9 

24.51 

25.81 

33 

21.82 

23.33 

57 

16.94 

18.72 

:    81 

6.69 

7.72 

10 

24.41 

25.72 

34 

21.72 

23.25 

58 

16.57 

18.34 

82 

6.29 

7.27 

11 

24.23 

25.55 

35 

•21.63 

23.17 

59 

16.18 

17.94 

83 

5.95 

6.88 

12 

24.03 

25.36 

36 

21.50 

23.06 

60 

15.77 

17.53 

|84 

5.70 

6.60 

13 

23.83 

25.16 

37 

21.38 

22.94 

61 

15.34 

17.08 

I  8» 

5.63 

6.53 

14 

23.61 

24.94 

38 

21.25 

22.83 

62 

14.89 

16.61 

(  86 

5.18 

6.01 

15 

23.39 

24.71 

39 

21.12 

22.72 

6:i 

14.42 

16.12 

87 

4.78 

5.55 

16 

23.29 

24.63 

40 

21.00 

22.61 

I      04 

13.93 

15.59 

88 

4.49 

5.23 

17 

23.21 

24.56 

41 

20.88 

22.51 

i     65 

13.40 

15.03 

89 

4.36 

5.08 

18 

23.14 

24.49 

42 

20.75 

22.40 

i     66 

13.02 

14.63 

90 

4.68 

5.46 

19 

23.06 

24.42 

43 

20.64 

22.30 

67 

12.63 

14.22 

91 

4.14 

4.84 

20 

22.99 

24.36 

44 

20.52 

22.21 

68 

12.23 

13.80 

92 

3.50 

4.10 

21 

22.92 

24.30 

45 

20.40 

22.10 

69 

11.83 

13.36 

1  93 

2.86 

3.37 

22 

22.84 

24.23  ' 

40 

20.16 

21.88 

70 

11.41 

12.91 

94 

2.25 

2.6-. 

23 

22.76 

24.16 

47 

19.92 

21.65 

71 

10.98 

12.45 

95 

1.73 

2.04 

This  table  exhibits  the  value  of  a  widow's  dower  in  the  income  of 
$100.  It  is  exactly  one-third  of  the  value  given  by  preceding  table. 
Thus,  if  a  widow  has  a  right  of  dower  in  an  estate  worth  $3,000,  her 
age  being  40  years,  and  the  rate  of  interest  five  per  cent.,  we  should 
find  by  the  table  the  present  value  of  her  life  right  to  be  worth  21  per 
cent. ;  hence  we  get  the  present  value  of  her  dower,  $630.  We  get 
nearly  the  same  result  from  preceding  table,  where  the  life-right  is 
62.99  per  cent,  on  her  third  part  of  $3,000,  or  $1,000  set  off  to  her  for 
dower,  making  its  present  value  $629.90. 


932 


Prolsativ  Law  and  Practice. 

.-.  VALUE  OF  THE 


Table  Showing  the   Present  Value  of  the   Right  of   Dower  of  a 

Her 

In  the  following  table,  as  given  by  Mr.  Bowditch,  the  age  of  the 
husband  like  that  of  the  wife,  begins  with  i6  years,  and  embraces  all 
the  even  numbers  to  the  age  of  90  years,  mclusive  ;  but  with  respect 
to  the  husband,  the  ages  16.  18,  20,  24,  28,  78.  82,  86,  88  and  90  are  here 
omitted,  in  order  to  reduce  the  table  to  the  width  of  the  page.  The  ages 
near  to  the  two  extremes  are  those  which  will  be  most  rarely  wanted 
in  such  a  table. 


1 

••                                              AGK   OF 

i'HI^   HUSBAND. 

. 

0 

Si 
0 
<1 

22 

26. 

30 

'    1 
32 

34 

36 

3S 

40 

42 

44 

46 

1 

48 

50 

•52 

.54'  ' 

'  56 

< 

16:3.68 

4  .'10 

4.58 

4.85 

5.14 

5.43 

5.73 

6.06 

6.42 

6.81 

7.25; 

7.74 

8.42 

9.18 

9.93 

10.69 

16 

1813^57 

3.99 

4.51 

4.76 

5.03 

5.29 

5.65 

5.99 

6.35 

6.73 

7.081 

7.57 

8.21  I  8.96| 

9.71 

10.51  1« 

20  3!45 

3.88 
3.77 

4.38 

4.64 

4.92 

4.74 

505 

5.00 

5.49 



5.33 

5.86 
5.69 

6.22 
6.03 

6.60 
6.43 

6.90' 

7.38 

8.00 
7.79 

8.74| 

9.49 

10.30  ~ 

2U 

■li  3  33 

4.25   4.46 

G.72    7.19 

'  8.52 

9.27 

10.09 

22 

54,3.23 
2613.12 

3.65 

4.U    4.32 

4.57 

4.85 

5.17 

5.521 

5.85 

6.18 

6.54 

6.99 

7.58'    8.30 

9.05 

9.86 

24 

3.53 

3.97   4.18 

4.42 

4.70 

5.01 

5.35, 

5.66 

5.98 

6.36 

6.79 

7.37|i  8.08 

8.83 

9.62 

20 

2SJJ3.01 
302.00 

3.41 

3.83  ;4.03 

4.26 

4.54 

4.84 

5.17 

5.47 

5.78 

6.17 

6.59 

7.15  1  7.85 

8.60 

9.37 

28 

3.28 
3.15 

3.69  3.88 

3.55  3.73 

4.10 
3.94 

4.38 
4.21 

4.66 



4.48 

4.99 

4.80 

5.28 
5.09 

5.58 
5.38 

5.96 
5.74 

6.38 
6.16 

6.93 
6.70 

7.61 

8.35 

9.11 

30 

32I2-.79 

7.36 

8.0s 

8.84 

32 

:Mi2.68 

3.02 

3.40  ,3.57 

3.78  4.03 

4.30 

4.60, 

4.88 

5.17 

5.51 

5.92 

6.45!|  7.10 

7.80 

8.56 

34 

36,2. S6  2.89 

3.25  3.41 

3.61 

3.85  4.11 

4.40 

4.66    4.94 

5.26 

5.66 

6.18il  6.83 

7.51 

8.26 

30 

382.44  2.76 

3.10  3.25 

3.44 

3.67  3.92 

4.19i 

'   4.44    4.70 

5.00 

5.39 

5.90;    6.53 

7.21 

7.95 

38 

40i2.32 

2.62 

2.48 

2.95  3.09 
2.79  '2.93 

3.27 
3.10 

3.49  3.72 
3.30  3.52 

3.98 
3.76 

;   4.22^  4.46 
3.99'  4.22 

4.74 

4.48 

5.11 



4.83 

5.61 
5.31 

]!  6.22 

1 

6.89 

7.62 

40 

4212.20 

1:  5.90 

6.56 

7.27 

42 

44 '2. 07 

2.34 

2.63  2.76  2.92 

3.113.32  3.54 

3.75 

3.98 

4.22 

4.55 

4.99:    5.57 

6.21 

6.91 

I44 

461.94 

2.21 

2.47  2.59  2.73 

2.92  3.12 

3.32 

3.50 

3^.71 

3.96 

4.26 

4.67;  1  5.22 

5.84 

6.53 

l46 

48!l.85 

2. 10!2.3l'  2.42  2.54 

2.76 

2.91 

3.10 

i   3.25 

3.44 

3.71 

3.97 

4.35II  4.85 

5.45 

6.10 

;48 

aO|l.71 

1.922.15  ;2.24  2.35  2.56 
1.7411.95  2.06  2.18  2.31 

2.71 
2.45 

2.87 
2.60 

j   3.00 
1   2.76 

3.17 
2.90 

3.49 
3.18 

3.75 
3.46 

4.03 
3. 78 

1!  4-48 

i>.05 

5.64 

;50 

521.54 

!j  4.12 

4.63 

5.28 

52 

54 

[1.40 

1.58,1.77,;i.S7  1.97  2.08 

2.21 

2.. 34 

2.48 

2.63 

2.81 

3.05 

3.37ii  3.77 

4.21 

4.78 

54 

56 

11. ,30 

1.44  1.61   1.70  1.79  1.89 

l!99  2.10 

2.22 

2.35 

2.50 

2.72 

3.00     3.36 

3.80 

4.30 

56 

.'JS 

1.17 

1.321.48  1.561.64  1.72 

1.81 

1.90 

2;oo 

2.11 

2.24 

2.39 

;  2.59;!  2.87 

3.27 

3.78 

l58 

CC 

jl.03 

!0.91 

1.17  1.32  11.404. 48  1.56 
l.O3il.l0'll.23  1..3O1.37 

1.65 
1.45 

1.74 
1.54 

;   1.84 
1.63 

1.95 
1.73 

2.07 
1.85 

2.20 
1.99 

2.3£ 
2.17 

'1  2.57 

2.89 

3.31 

60 

62 

*il 

2.38 

2.64 

2.97 

«H 

|0.82 

0.92il. 031  1.09 

1.161.23 

1.30 

1.37 

1.44 

1.51 

1.61 

:  1.75 

1.93  1  2.15 

2.41 

2.70  64 

<J6l0.74 

O.82I0.92   0.97 

:i. 02, 1.08 

1.13 

1.19 

1.25 

1.31 

1.37 

1  1.47 

1.63:i  1.85 

2.12 

2.43,66 

<J8,0.65J0.73'i0.82  0.86 

, 0.9110.96 

1.01 

1.06 

1.10 

1  1.15 

1.20 

1.25 

1.36     1.54 

1.79 

2.09|68 

70  0.54]0.62,0.70'|0.74 

0.7810.83 
0.65  0.69 

0.87 
0.73 

0.92 
0.77 

!  0.97 

'   0.81 

j  1.02 
0.85 

1.07 
0.90 

1  1-12 

0.96 

1.0: 

1.27 

1.43 

1.6- 

72I0.44I0.5OO.57  '0.61 

1.11 

1     1.22 

:   i.se 

74'0. 38,0.43  0.49  l0'.52  0.55  0.58 

lo.oi 

0.64 

0.68 

0.71 

0.75 

0.86 

0.89!  0.98 

l!08 

1.20,74 

VeO.SSiO. 38:0.42  10.45:0.48  0.51 

10.53 

k).56 

0.58 

0.60 

0.63 

0.67 

0.73':  0.82 

i     0.94 

1.09,76 

780.3C 

0.34'0.38  10.40  0.43  0.45 

0.47 

0.49 

0.50 

0.52 

0.53 

0.5E 

0.60,1  0.68 

1     0.79 

0.^78 

80:0.24 

0.28  0.32   0.34^0.36  0.38 

0.41 

0.43 

0.44 

0.46 

0.47 

0.4g 

:  0.50  1  0.55 

0.64 

0.77  80 

82  0.2t 

>0.22  0.251,0.27  0.29,0.32 

;o.34 

iO.36 

1    0..3C 

0.32 

0.34 

0.3" 

0.40  ,  0.42 

I     0.45 

0.50  84 

840.r 

0.18  0.2l''0.23  0.24  0.25 

I0.27 

I0.29 

0.3C 

0.32 

0.34 

1  0.3" 

0.40     0.42 

i     0.45 

0.50  84 

86  0.14 

0.16  0.18  0.19  0.20  0.21 

0.22 

0.23 

0.2;: 

0.2£ 

0.2- 

0.29    0.32     0.36 

O.40 

0.45  86 

SSjO.lC 

0.15,0.17  0.18  0.19  0.20 

0.21 

0.21 

0.22 

0.22 

!  0.2s 

0.24    0.26     0.30 

0.35 

0.4188 

90  0.110.13  0.15  0.16  0.17  0.18  0.19  0.20 

0.21    0.21    0.2: 

0.22    0.23     0.25 

0.29 

0.35  90 

.Moin'ALiTv   Taulk^ 


933 


RIGHT  OF  DOWER. 

Married  Woman  in  an  Estate  Worth  $ioo,  Provided  She  Survives 
Husband.* 

The  table  is  to  be  entered  at  the  top  with  the  age  of  the  husband,  and 
at  the  side  with  the  age  of  the  wife;  under  the  former  is  tlie  present 
vakie  of  the  dower  right  in  an  estate  worth  $ioo. 

Thus — if  the  age  of  tlie  husband  be  50  years,  and  tliat  of  the  wife  32 
years,  the  present  vahie  of  the  dower  in  $100  is  $6.70;  so  that  if  the 
estate  be  worth  $10,000,  the  present  vahie  of  the  dower  right  would  be 
$670. 


•By  the  Carlisle  Tables. 


PAKT  VII. 


Forms  of  Procedure. 


'^t'-^ 


FORMS. 


I.  PROBATE  OF  WILLS  AND  GRANT  OF  LETTERS 
TESTAMENTARY  BY  SURROGATE. 

Form  I.     Application  for  Probate. 

[See  Orphans'  Court  Act,  Sections  13,  14  and  15,  pages  196  and  JOi. 
supra;   and  Orphans'  Court  Rule  i.  page  201,  supra.] 

MssEx  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of"^ 

the  alleged  will  of  John  Doe,  V()n    Petition    for    Probate, 
deceased.  J 

Pctiiion. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  A.  B.,  who  resides  at  No.   .  .  .,   ....   Street, 

in    the    ....    of    in   the    County    of    and 

State  of   respectfully  shows  that : 

1.  John  Doe,  late  of  the of in  the  County  of 

Essex  and  State  of  New  Jersey,  departed  this  life  on  the 

day  of ,  19.  ..  and  more  than  ten  days  ago,  having  first 

duly  made  and  executed  a  pai)er  writing  purporting  to  be  his 

last  will  and  testament,  bearing  date  the  .  .  .  day  of , 

19..,  wherein  yotir  ])etitioner,  is  named  as  the  sole  executor 
thereof. 

2.  The  said  John  Doe  left  him  surviving  as  his  next  of  kin 
and   heirs   at   law,   a   widow,   Jane    Doe,   who   resides   at   and 

whose  post-office  address  is  No ,  ....   Street,  in  the  .... 

of ,  and  State  of and  two  children,  to  wit : 

William  Doe  and  John  Doe,  both  of  wliom  reside  at  and  whose 

I)OSt-office   address   is    Xo vStreet,   in   the    ....    of 

,  in  the  Count}-  of    and  State  of    

All  of  the  above-named  next  of  kin  and  heirs  at  law  are  of 

937 


938  Pkobate  Law  and  Practice. 

full  age,  with  the  exception  of  John  Doe  who  is  a  minor  of 
the  age  of  ....  years. 

3.  No  caveat  against  the  probate  of  the  will  of  the  said 
John  Doe  has  been  filed. 

Your  petitioner  therefore  prays  that  the  said  w^riting  be 
admitted  to  probate  as  and  for  the  last  will  and  testament  of 
said  John  Doe,  deceased,  and  that  letters  testamentary  thereon 
be  granted  to  your  petitioner. 

Dated  Newark,  N.  J.,  A.  B. 

,  ••••.  I9--- 

State  oe  New  Jersey, 


'•! 


ss. 
County  of  Essex. 

A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this^ 

.  .  .  .day  of ig.  .  .,  a.t>  A.   B. 

Newark,  N.  J.,  before  me.  J 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  2.    Proof  of  Will  by  Deposition  of  Subscribing  Witness. 

Essex  County  Surrogate's  Court 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate, 
deceased. 


Deposition    of  Sithscribiiuj 
IVitness. 


State  oe  New  Jersey 


0  c 

County  of  Essex.       ^ 


1 


A.  B.,  one  of  the  witnesses  to  the  annexed  writing  purport- 
ing to  be  the  last  will  and  testament  of  John  Doe,  deceased, 
being  duly  sworn  according  to  law  upon  his  oath  deposes  and 


Probate  of  Wills.  939 

says  that  he  saw  John  Doe,  the  said  testator,  sign  and  seal  the 
said  annexed  writing  and  heard  him  pubHsh,  pronounce  and 
declare  the  same  to  be  his  last  will  and  testament. 

Deponent  further  says  that  at  the  time  of  the  doing  thereof 
the  said  testator  was  over  the  age  of  twenty-one  years,  of 
sound  and  disposing  mind  and  memory  and  not  under  any 
restraint,  so  far  as  this  deponent  knows  and  as  he  verily 
believes ;  and  that  the  other  sub- 
scribing witness  to  the  said  will  was  present  at  the  same  time 
with  deponent  when  the  said  will  was  signed  l)y  the  said  testator 
and  by  him  published  and  declared  as  and  for  his  last  will  and 

testament  as  aforesaid,  and  that  the  said 

and  deponent  both  subscribed  their  names  to  said  will  as 
witnesses  at  the  request  of  and  in  the  presence  of  the  said 
testator  and  in  the  presence  of  each  other. 

Subscribed  and  sworn  to  this 

day  of   , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

F.  G.  S.,  Jr., 
vSurrogate. 

This  deposition  must  be  taken  before  the  surrogate. 


A.  B. 


Form  3.     Proof  of  Will  by  Proof  of  Signature  of  Testator  and 
Subscribing  Witness. 

Essex  County  Surrogate's  Court. 
In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate, 
deceased.  J 

Proof  of  Signature 
of  Testator. 

State  oe  New  Jersey, 
County  of  Essex. 


''  I  ss. 


A.  B..  of  full  age,  being  duly  sworn  uj)on  his  oath  accord- 
ing to  law  deposes  and  says  that  he  has  examined  the  annexed 
writing  ]nir])orting  to  be  the  last  will  of  John  Doe,  deceased, 


.940  Probate  Law  and  Practice. 

and  particularly  the  signature  of  John  Doe  appended  thereto. 
Deponent  further  says  that  he  was  well  acquainted  with  one 

John  Doe  who  died  in  the   of   in 

the  County  of   and  State  of   

on   or  al)Out   the    day   of    , 

19....,  and  that  he  is  famihar  with  Ins  liand-writing,  having 
often  seen  him  write;  and  deponent  further  says  that  he  is 
of  opinion  and  verily  Ijelieves  that  the  said  signature  is  the 
proper  hand-writing  of  the  said  John  Doe,  with  whom  de- 
ponent was  so  acquainted,  .and:that  the  same  was  written  hy 
him.  !  .  :,  I.  .  ' 

Subscribed  and  sworn  to  this~^ 

day  of , 

19.  .  .,  at  Newark,  N.  ].,  before 
me, 

F.  G.  S.,  Jr., 
Surrogate. 


>-  A. 


Essex  Couxtn'  Surrogate's  Court. 
In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate, 
deceased.  J 

Proof   of   Signature    of 
-''^■-  .  Subscribing     Witness. 

State  oe  New   Tersey,  ) 
County  of  Essex.       J 

C.  D.,  of  full  age,  being  duly  sworn  upon  his  oath  deposes 
and  says  that  he  has  examined  the  annexed  writing  purport- 
ing to  be  the  last  will  of  John  Doe,  deceased,  and  ]^articularlv 
the  signature  X.  Y..  appended  thereto  as  an  attesting  witness. 
Deponent  furtlier  says  that  he  was  well  acquainted  with  one 
X.  Y.,  who  died  since (date  of  execu- 
tion of  will),  and  that  he  is  familiar  with  his  handwriting, 
having  often  seen  him  write,  and  that  deponent  is  of  opinion 
and  verily  lielieves  that  the  said  signature  is  the  proper  hand- 
^writing  of  the  said  X.  Y.,  with  whom  deponent  was  so  ac- 
irjuainted,  and  that  the  same  was  written  by  him. 


Probate  op  Wills.  941 


>  C.  D. 


Subscribed  and  sworn  to  this^ 

day  of    , 

19.  .  .,  at  Xewark.  N.  J..  l:)efore 
me, 

F.  O.  S..  Jr., 
Surrogate. 
Annex  a  like  deposition  proving  the  signature  of  the  other 
subscribing  witness.     These  depositions  must  be  taken  before 
the  surrog^ate. 


Form  4.     Order  for  Probate. 

[See  Orphans'  Court  Act.  sections  i.^,  14  and  15,  pages  196  and  201. 
supra,  and  Orphans'  Cotirt  Rule  i.  page  201,  supra.] 

Essex  County  Sukkog.ate's  CoLMrr. 
In  the  matter  of  tiie  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate, 
deceased.  J 

Order  for  Pmhatc. 

On  reading  and  tiling  the  ])etition  of  A.  B.,  for  ])robate  of 
the  last   will   and  testament  of   John   Doe.   deceased,   bearing 

date  the  ....  day  of T9.  .  . ,  and  for  letters 

testamentary  thereon,  and  the  Surrogate  having  inquired  into 
tlie  circumstances  and  taken  proof,  and  being  satisfied  of  the 
genuineness  of  the  will  produced,  the  validity  of  its  execu- 
tion and  the  competency  of  the  testator,  and  it  further  ap- 
])earing  that  the  said  testator  died  more  tlian  ten  davs  ago, 
and  that  no  caveat  has  been  filed  against  the  i)robate  of  said 
will : 

It  is  on  this day  of ,  A.D.,  19.  .  .. 

okDERKi)  and  adjudged  that  the  instrument  ofifered  for  probate 
in  this  matter  be  and  the  same  hereby  is  established  as  the 
last  will  and  testament  of  John  Doc,  deceased,  and  that  the 
same  be  and  hereby  is  admitted  to  j^robate. 

And  it  is  further  or^lered  that  letters  testamentary  be  issued 
tliereon  to  A.  B.,  the  executor  named  in  said  will,  upon  In's 
duly  qualif}ing  as  such. 

F.  G.  S.,  Jr., 
Surrogate. 


942  Probate  Law  and  Practice. 

Form  5.     Oath  of  Executor  on  Grant  of  Letters  Testamentary. 

State  of  New  Jersey,  ") 
County  oe  Essex.      j 

A.  B.,  the  executor  in  the  annexed  writing  named,  being 
duly  sworn  according  to  law  upon  his  oath,  deposes  and  says, 
that  the  annexed  writing  contains  the  true  last  will  and  testa- 
ment of ,  the  testator  therein  named,  so  far 

as  he  knows,  and  as  he  verily  believes ;  that  he  will,  as  execu- 
tor thereof,  well  and  truly  perform  the  same  by  paying  first 
the  debts  of  said  testator,  and  then  the  legacies  therein  speci- 
fied, so  far  as  the  goods,  chattels  and  credits  of  deceased  will 
thereunto  extend ;  and  that  he  will  make  and  exhibit  into  the 
Surrogate's  office  of  the  County  of  Essex  a  true  and  perfect 
inventory  of  all  and  singular  the  goods,  chattels  and  credits 
of  the  said  deceased,  that  have  or  shall  come  to  his  knowledge 
or  possession,  or  to  the  possession  of  any  other  person  for  his 
use,  and  that  he  will  render  a  just  and  true  account,  when 
thereunto  lawfully  required. 

Subscribed  and  sworn  to  this"^ 

day  of   

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

F.  G.  S.,  Jr., 
Surrogate. 

This  affidavit  must  be  taken  before  the  surrogate  or  deputy- 
surrogate. 


A.  B. 


Form  6.     Bond  of  Non-Resident  Executor. 

[See  Orphans'  Court  Act,  section  51,  page  311  supra.] 

Know  aee  men  by  these  presents,  that  we  A.  B..  C.  D. 

and  E.   F.,  all  of   the    of    in  the   County  of 

Essex  and  the  State  of  New  Jersey,  are  held  and  firmly  bound 
unto  the  Ordinary  of  the  State  of  New  Jersey  in  the  sum  of 

dollars,  lawful  money  of  the  United  States,  to  be  paid 

to  the  said  Ordinary  as  aforesaid,  his  successors  or  assigns,  to 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves 


Pkobatk  of  Wills.  943 

our  heirs,  executors  and  administrators,  jointl}-  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

one  thousand  nine  hundred  and   

Whereas,  the  said  A.  B..  the  executor  named  in  the  will  of 

John  Doe,  late  of  the  of   in  the  County  of 

,  and  State  of ,  who  resides  out  of  the  State  of 

New  Jersey,  to  wit.,  in  the  City,  County  and  State  of  New 
York,  has  applied  to  the  Surrogate  of  the  County  of  Essex  for 
the   probate   of    said   will   and    letters    testamentary   thereon. 

Now,  the  condition  of  this  obligation  is  such  that  if  the 
above  bounden  A.  B.,  executor  as  aforesaid,  shall  faithfully 
perform  the  duties  devolving  upon  him  as  such  executor,  ac- 
cording to  law,  and  shall  make  a  just  and  true  account  of  his 
administration  within  twelve  calendar  months  from  the  date 
of  this  obligation,  and  all  the  rest  and  residue  of  the  goods, 
chattels  and  credits  which  shall  be  found  remaining  in  his 
hands  upon  the  account  of  the  said  administration,  the  same 
being  first  examined  and  allowed  by  the  Orphans'  Court  of 
the  county  or  other  competent  authority,  shall  deliver  and  pay 
unto  such  person  or  persons  respectively,  as  is,  are,  or  shall, 
by  law  be  entitled  to  receive  the  same,  then  this  obligation  to 
be  void  or  else  to  remain  in  full  force  and  virtue. 


Signed,    sealed   and    delivered 
in    the   presence   of 
X.  Y. 


A.  B.   [L.  s.] 

}-  CD.   [l.  s.l 

E.  F.   [L.S.J 


The  within  bond  is  approved  as  to  form  and  sureties  this 
day  of  19. . . . 

F.  G.   S..- 
Surrogate. 
Add  justification  of  sureties  as  in  Form  7. 

This  bond  is  not  necessary  if  the  will  provides  that  no  secur- 
ity shall  be  required  of  the  person  named  as  executor  therein. 
Orphans'  Court  Act,  section  51,  page  311.  supra. 


Form  7.     Justification  of  Sureties  on  Bond. 
Statk  of  Nkw  Jkrskv,  I 

County  of  Iv^srx.      j  '^'^' 

....,   beiuij-   dulv    sworn   accorrling   to   law    upon    his   oath, 
61 


c)44  Probate  Law  and  Practice. 

deposes  and  says  that  he  resides  a^  No , Street, 

in  the   of    ,  in  the  County  of    and 

State  of  New  Jersey.    That  he  is  a  freeholder  in  the  State  of 
New  Jersey,  and  the  sole  owner  in  his  own  right  of  the  land 

and  premises  No , Street,  in  the of , 

in  the  County  of ,  and  State  of  New  Jersey.    That  the 

value  of  said  land  and  premises  is  ....  dollars,  and  that  they 
are  encumbered  by  mortgage    (or  jndginent)   to  the  amount 

of dollars,  and  that  he  is  worth  in  real  estate,  over  and 

above  all  liabilities  of  any  kind  whatsoever,  the  sum  of   .... 
dollars. 

Subscribed  and  sworn  to  this" 

day  of    

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Pul)lic  of  N.  J. 


Form  8.     Power  of  Attorney  from  Non-Resident  Executor,   etc. 

[See  P.  L.  1912.  page  551,  section  i,  page  208.  supra.] 

Essex  County  Surrogate's  Court. 


In  the  matter  of   the   estate 
John  Doe,  deceased. 


■'1 


Power  of  Attorney  from  Nou- 
Residcnt  Executor,  etc. 


Know  all  men   v>v  these  presents,  That   I,   Jane   Doe. 

residing  at  Number , Street,  in  the of 

in  the  County  of ,  and  State  of   

pursuant  to  the  provisions  of  an  Act  entitled  "A  supplement  to 
an  Act,  entitled  'an  Act  respecting  the  Orphans'  Court  and 
relating  to  the  powers  and  duties  of  the  Ordinary  and  the 
Orphans'  Court  and  Surrogates  (Revision  of  1898).  approved 
June  14th,  1898,'"  which  Act  was  approved  April  ist.  1912. 
being  Chapter  213  of  the  Laws  of  191 2,  do  hereby  make,  consti- 
tute and  appoint  F.  G.   S.,  Jr.,   Surrogate  of  the  County  of 


PROBATii:  OF  Wills.  045 

r^ssex,  in  the  State  of  New  Jerse}'.  and  his  successors  in  office, 
my  true  and  lawful  attorney  upon  whom  may  he  served  all 
original  process  in  any  action  at  law  or  in  equity  against  the 
aforesaid  estate  of  John  Doe,  deceased,  whereof  1  have  heen 
duly  appointed  the 

And  I  do  further  agree  that  any  original  process  against  the 
aforesaid  estate  of  John  Doe.  deceased  served  upon  my  at- 
torney herein  appointed,  shall  he  of  the  same  force  and  eftect 
as  if  duly  served  upon  me  within  the  State  of  New  Jersey. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 

this day  of ,  in  the  year  of  our  I^ord,  one 

thousand  nine  hundred  and 

Signed,  sealed  and  delivered  in  1  ^         _ 

^,  .  >  lane  Doe. 

the  presence  of  I 


Form  8^.  Acknowledgement. 

State  of  New  Jersey,  ) 
County  of  Essex.     (     ' 

Be  it  remembered,  That  on  this    day  of , 

19.  ... ,  hefore  me,  the  subscriber,  a  person- 
ally appeared  Jane  Doe,  who  I  am  satisfied  is  the  person  in 
the  foregoing  Power  of  Attorney  named,  and  I  having  first 
made  known  to  her  the  contents  thereof,  she  did  thereupon 
acknowledge  that  she  signed,  sealed  and  delivered  the  afore- 
said Power  of  Attorney  as  her  voluntary  act  and  deed  for  the 
uses  and  ]nirposes  therein  expressed. 

A.  P..  C, 
Master  in  Chancery  of  N.  I. 


Form  9.     Letters  Testamentary. 

[See  Orphans'  Court  Act,  sectit)n  17,  3  Comp.  Stat.,  3K18.] 

Essex  County  Surrogate's  Court. 

State  of  New  Jersey,  [ 
County  of  Essex.      T"' 

I, ,  vSurrcjgate  oi  the  County  (jf do  hereby 

certif}'  tlic  annexed  to  be  a  true  copy  of  the  last  will  and  Icsta- 


946  Probate  Law  and  Practice. 

ment  of   ,  late  of  the  County  of   ,  deceased, 

and  that   ,  the  executors  therein  named,  proved  the 

same  before  me,  and  are  duly  authorized  to  take  upon  them- 
selves the  administration  of  the  estate  of  the  testator,  agree- 
ably to  the  said  will. 

Witness   my   hand   and   seal   of   office   the    day   of 

,  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and 

F.  G.  S.,  Jr., 
Surrogate. 


Form    10.      Petition   of    Co-Executor    for    Letters    Testamentary 
After  Probate  of  Will. 

Essex  County  Surrogate's  Court. 

In    the    matter    of    the"^  On    Petition     for    Letters    Testa- 
estate    of    John    Doe,  >      mentary. 
deceased.  J 

Petition. 

To  F.  G.  S.  Jr.,  Surrogate  of  the  County  of  Essex. 

The  petition  of  William  Jones,  of  No Street,  in 

the of   ,  in  the  County  of   and  State  of 

New  Jersey,  one  of  the  executors  named  in  the  last  will  and 
testament  of  John  Doe,  deceased,  respectfully  shows  that: 

1.  Your  petitioner  is  one  of  the  executors  named  in  the  last 
will  and  testament  of  John  Doe,  late  of  the  County  of  Essex 
and  State  of  New  Jersey,  who  lately  departed  this  life  leaving- 
a  last  will  and  testament  wherein  your  petitioner  and  William 
Doe  were  named  as  executors  thereof. 

2.  The  said  will  of  John  Doe,  deceased,  was  duly  admitted 
to  probate  upon  the  application  of  William  Doe,  one  of  the 
executors  therein  named,  by  the  Surrogate  of  the  County  of 

Essex,  on  the  ....  day  of 19.  . ,  and  letters  testamentary 

thereon  duly  issued  to  the  said  William  Doe,  one  of  the  execu- 
tors therein  named ;  but  your  petitioner  has  made  no  applica- 
tion for.  nor  have  letters  testamentary  upon  said  will  been 
issued  to  him. 


Probate  of  Wills.  947 

Your   petitioner    therefore   prays   that    letters    testamentary 
upon  the  will  of  the  said  John  Doe  niav  he  issued  to  him. 


Dated,  Newark,  X.  J., 
••••. 19--- 

State  of  New  Jeksev, 
CouNTv  of  Essex. 


William  Doe. 


J 

William  Doe,  heing  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this' 
day  of    


.  ^r        1    XT   T    u  f        r  William  Doe. 

19.  . .  .,  at  Newark,  N.  ].,  before 

me, 

J.  C.  F., 

Notary  Public  of  N.  j. 

No  notice  of  this  apj^lication  is  necessary, 


Form  II.     Order  Granting  Letters  Testamentary  to  Co-Executor 
After  Probate  of  Will.  • 

Essex  Countv  Surrogate's  Court. 

In    the    matter    of    the"^ 
estate    of    John    Doe,  >  On    Petition     for    Letters    Testa- 


deceased,  mentarv 


Order   Craiitiiuj   Letters 
Testaiiieiitary. 


Upon  reading  and  filing  the  petition  of  \\'illiam  Jones, 
whereby  it  appears  that  he  is  one  of  the  executors  named  in  the 
last  will  and  testament  of  John  Doe,  late  of  the  Countv  of 
Essex  and  State  of  New  Jersey,  who  departed  this  life  leaving 
a  last  will  and  testament  wherein  the  said  William  Jones,  the 
I)etitioner  herein,  and  William  Doe  were  named  as  executors 


948  Probate  Law  and  Practice. 

thereof.  And  it  further  appearing  that  said  will  was  duly 
iidmitted  to  probate  by  the  Surrogate  of  the  said  County  of 

Essex  on  the day  of 19.  •  • ,  upon  the  application  of 

William  Doe,  one  of  the  executors  therein  named,  and  letters 
testamentary,  were  thereupon  duly  issued  to  him,  and  it 
appearing  that  the  said  William  Jones,  the  petitioner  herein, 
has  not  heretofore  applied  for  nor  have  letters  testamentary 
upon  the  will  of  the  said  John  Doe  been  issued  to  him. 

It   is    thereupon    on    this    day    of    ,    19... 

ordered  that  letters  testamentary  upon  the  aforesaid  will  of 
John  Doe,  deceased,  be  issued  to  the  said  William  Jones  upon 
his  qualifying  as  such  executor. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  qualification  of  executor  sec  Form  5. 


Form  12.  Petition  for  Probate  of  Will  and  Grant  of  Adminis- 
tration With  the  Will  Annexed,  in  Case  of  Death  or  Renun- 
ciation of  Executor  Before  Letters  Testamentary  Issued,  or 
in  Case  Executor  Neglects  to  Prove  Will. 

[See  Orphans'  Court  Act,  section  27,  page  270,  supra,  and  Orphans' 
Court  Rules  i,  2,  3,  4  and  5,  pages  258  to  261,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the^  On  Application  for  Probate  of  Will 
estate  of  John  Doe,  >  and  Letters  of  Administration  With 
deceased.  J  the  Will  Annexed. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  James  Doe,   w^ho  resides  at   Number , 

Street,  in  the   of    ,  in  the  County  of 

Essex  and  State  of  New  Jersey,  respectfully  shows  that : 

I.  John  Doe,  late  of  the  ....  of ,  in  the  County  of 

Essex  and  State  of  New  Jersey,  died  on  the   day  of 


Pkobatk  of  Wills.  949 

19.  .  . .  possessed  of  goods,  chattels,  rights  and  credits 

of  the  value,  as  nearly  as  your  petitioner  can  ascertain,  of 

dollars,  and  having  hrst  duly  made  and  executed  a  paper  writing 
jjurporting  to  l^e  his  last  will  and  testament,  and  hearing  date 

the   day  of   19.  .  .  .   in  and  hy  which  he 

appointed  X.  Y.,  of  the of   in  the  County 

of    and  State  of    the  sole  executor  thereof. 

2.  The  said  X.  Y.,  has  duly  renounced  his  said  ofifice  of  execu- 
tor {or  has  predeceased  tJie  said  testator;  or,  the  said  X.  Y., 
executor  as  aforesaid,  has  not  proved  the  said  zvill,  although 
more  than  forty  days  Jiave  elapsed  since  the  death  of  said 
testator) . 

3.  The  said  testator  died  more  than  ten  days  ago,  and  no 
caveat  has  been  filed  against  proving  the  aforesaid  will. 

4.  The  said  John  Doe  left  him  surviving,  as  his  only  next  of 
kin  and  heirs  at  law,  three  children,  to  wit :  James  Doe,  your 
]jetitioner,  and  Richard  Doe  and  William  Doe.  all  of  whom 

reside  at,  and  whose  post  office  addresses  are  Number   

........   Street,  in  the of ,  in  the  County  of 

and  State  of ;  the  residuary  legatees  named 

in  said  will  are  your  petitioner,  James  Doe,  Richard  Doe, 
William  Doe  and  Jane  Williams ;  all  of  the  foregoing  are 
of  full  age  with  the  exception  of  the  said  Richard  Doe  who 
is  a  minor  of  the  age  of  twenty  years. 

5.  Due  notice  of  this  application  has  been  given  to  all  persons 
in  interest  (or,  all  persons  entitled  to  administration  upon  the 
estate  of  the  said  John  Doe,  deceased,  have  duly  renounced 
their  right  of  administration  and  requested  the  appointment  of 
your  petitioner). 

Your  petitioner  therefore  prays  that  the  said  writing  be 
admitted  to  probate  as  and  for  the  last  will  and  testament  of 
the  said  John  Doe,  deceased,  and  that  letters  of  administration 
with  the  said  will  annexed  be  issued  to  him. 

Dated  Newark,  N.  J., 

Tame;s  Doe. 
, ,i9-- 


Statk  of  New  Jerskv,  | 

County  of  Essex.      j 

James  Doe,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  (he  foregoing  pe- 


950  Pkouate;  Law  and  Practice. 

tition  named,  and  that  the  matters  and  things  therein  contained 
are  true  to  the  best  of  his  knowledge  and  beUef.  Deponent 
further  says  that  the  value  of  the  estate  for  administration  of 
which  this  application  is  made  will  not  exceed  the  sum  of 
dollars. 

Subscribed  and  sworn  to  this^ 

day  of    ,  ^  _. 

^  XT         1    XT   T    1    r       r     James  Doe;. 
19.  .  .  .,  at  Newark,  N.  J.,  before  f 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


J 


•Orphans'  Court  I'iules  2,  3  a;id  4,  require  ten  days'  notice  of 
the  above  application  to  be  given  to  all  persons  entitled  to  ad- 
ministration unless  they  all  renounce.  For  form  of  notice,  see 
Form  36;  for  form  of  renunciation  see  Form  35.  Orphans' 
Court  Rule  3  requires  that  where  an  executor  neglects  to  apply 
for  letters  testamentary  for  forty  days  after  the  death  of  the 
testator,  ten  days'  notice  of  the  application  for  letters  of  ad- 
ministration shall  be  given;  for  proof  of  service  of  notice  see 
Form  38. 

For  administration  with  the  will  annexed  after  probate  of 
will  see  Form  52. 


Form  13.     Renunciation  of  Executorship. 

[See  Orphans'  Court  Act,  section  27,  page  270,  supra.] 

Essex  Countv  Surrogate's  Court. 

In  the  matter  of  the  probate  of"^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate, 
deceased.  J 

Reiiiiiiciation  of  Executor. 

To  AL,lv  TO  WHOM  IT  MAY  CONCERN. 

Whereas,  John  Doe,  late  of  the   of    in 

the  County  of ,  and  State  of  New  Jersey,  died  on  or 

about  the day  of ,  19.  .  . ,  leaving  a  last  will  and 

testament  dated  the day  of   19 wherein 


Probatk  oi*  Wills.  951 

and  whereby  he  appointed  me  the  sole  executor  thereof. 

Now  be  it  known  that  1  hereby  renounce  the  said  executor- 
ship and  refuse  to  take  upon  myself  the  burden  of  the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  this   day  of    19.  .  . 

Signed  in  the  presence  of     I  ^ 


Form  14.     Order  Granting  Probate  of  Will  and  Letters  of  Ad- 
ministration With  the  Will  Annexed. 

[See  Orphans'  Court  Act,  section  27,  page  270,  supra,  and  Orphans" 
Court  Rule  i,  page  258.  supra,  and  2,  page  258,  supra.] 

Essex  County  Surrogate's  Court. 

In    the    matter    of    the^ 
estate    of    John    Doe,  >  On  Petition, 

deceased.  J 

Order. 

It  appearing  from  the  i)etition  of  James  Doe,  filed  herein, 

that  John  Doe,  late  of  the of ,  in  the  County 

of  Essex  and  State  of  New  Jersey,  died  on  or  about  the 

day  of   ,  19.  .  .,  and  more  than  ten  days  ago,  having 

first  duly  made  and  executed  a  paper  writing  purporting  to 

be  his  last  will  and  testament,  bearing  date  of  the day 

of ,  19.  .  .  .,  in  and  by  which  he  appointed  X  Y.,  of  the 

of ,  in  the  County  of ,  and  State  of 

,  the  sole  executor  thereof ;   and  it  further  appearing 

that  the  said  X.  Y.,  has  duly  renounced  his  said  office  of  execu- 
tor (or,  has  predeceased  the  said  testator;  or,  has  not  proved 
the  said  zmll  or  applied  for  letters  testamentary  thereon, 
although  more  than  forty  days  have  elapsed  since  the  death 
of  the  said  testator),  and  due  notice  of  this  application  having 
l)een  given  to  the  residuary  legatees  named  in  the  will  of  said 
testator   (or,  all  of  the  residuary  legatees  named  in  said  will 


95-^  Probate  Law  and  Practice. 

and  persons  entitled  to  letters  of  administration  zvitli  the  will 
annexed  having  duly  renounced  their  said  right  and  requested 
the  appointment  of  your  petitioner)  ;  and  the  Surrogate  having 
inquired  into  the  circumstances,  taken  proof,  and  being  satis- 
fied of  the  genuineness  of  the  will  produced,  the  validity  of  its 
execution,  and  the  competency  of  the  testator,  and  no  caveat 
against  the  probate  of  said  will  having  been  filed,  and  the  said 
James  Doe  being,  in  the  judgment  of  the  court,  a  fit  person  to 
administer  the  estate  of  the  said  testator,  and  it  appearing  that 
the  personal  estate  of  the  said  testator  will  not  exceed  in  value 
the  sum  of dollars. 

It  is  on  this day  of  ...  .iimiaf.  19.  .  . ,  ordered  ad- 
judged and  decreed  that  the  instrument  offered  for  probate  in 
this  matter  is  the  last  will  and  testament  of  the  said  John  Doe, 
deceased,  and  that  the  same  be  and  is  hereby  admitted  to  pro- 
bate, and  it  is  further  ordered  that  letters  of  administration 
with  the  will  annexed  be  issued  thereon  to  the  said  James  Doe 
upon  the  giving  by  him  of  a  bond  to  the  Ordinary  in  the  sum 

of   dollars,  with  sureties  according  to  law  approved 

by  the  Surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  bond  see  Form  i  s. 


Form  15.     Bond  of  Administrator  c.  t.  a. 

[See  Orphans'  Court  Act.  section  47,  page  310,  supra.] 

Know  ale  men  bv  these  presents,  that  we,  William  Doe 

of  the of ,  in  the  Coimty  of and  State 

of   New   Jersey,   as   principal,   and  A.   B.,   of   the    of 

,  in  the  County  of and  State  of and 

C.  B.,  of  the of in  the  County  of and 

State  of ,  as  sureties,  are  held  and  firmly  bound  unto 

the  Ordinary  of  the  State  of  New  Jersey  in  the  sum  of 

dollars,  lawful  money  of  said  State,  to  be  paid  to  the  said 
Ordinary,  his  successors  or  assigns.  To  which  payment  well 
and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  execu- 


Probate  of  Wills.  953 

tors  and  aciniiiustrators,  jointly  and  severally,  tirmlv  by  these 
presents. 

Sealed  with  our  seals,  and  dated  the day  of .  . , 

in  the  year  of  our  Lord,  one  thousand  nine  hundred  and 

The  Condition  of  This  Obligation  is  Such,  that  if  the 
above  bounden  William  Doe,  administrator  with  the  will  an- 
nexed of  all  and  singular  the  goods,  chattels  and  credits  of  John 
Doe,  deceased,  do  make  or  cause  to  be  made,  a  true  and  perfect 
inventory  of  all  and  singular  the  goods,  chattels  and  credits  of 
the  said  deceased,  which  have  or  shall  come  to  the  hands, 
possession  or  knowledge  of  the  said  administrator,  or  into  the 
hands  or  possession  of  any  other  person  or  persons  for  the 
said  administrator,  and  the  same  so  made  do  exhibit  or  cause 
to  be  exhibited  into  the  Registry  of  the  Prerogative  Court  in 
the  Secretary's  Ofiftce  of  this  State,  or  into  the  Surrogate's 
Ofifice  of  the  County  of  Essex,  at  or  before  the  expiration  of 
three  calendar  months  from  the  date  of  the  above  written 
obligation,  and  the  same  goods,  chattels  and  credits,  and  all 
other  goods,  chattels  and  credits  of  the  said  deceased  at  the 
time  of  his  death,  which  at  any  time  after  shall  come  into  the 
hands  or  possession  of  the  said  administrator  or  into  the  hands 
or  possession  of  any  other  person  or  persons  for  the  said 
administrator,  do  well  and  truly  administer  according  to  law 
and  the  provisions  of  said  will;  and  further  do  make  or  cause 
to  be  made  a  just  and  true  account  of  his  administration  within 
twelve  calendar  months  from  the  date  of  the  above  written 
obligation;  and  all  the  rest  and  residue  of  the  said  goods, 
chattels  and  credits,  which  shall  be  found  remaining  upon 
the  account  of  the  said  administration,  the  same  being  first 
examined  and  allowed  by  the  Judges  of  the  Orphans'  Court 
of  the  County,  or  other  competent  authority,  shall  deliver  and 
pay  unto  such  person  or  persons  respectively,  as  is,  are  or 
shall  be  by  law  and  the  provisions  of  said  will  entitled  to 
receive  the  same,  then  the  above  obligation  to  be  void  and  of 
none  effect,  or  else  to  remain  in  full  force  and  virtue. 

Sealed   and   Delivered'^        William   l)(.r        (l.  s.) 

in       the       i)resence      of  >       A.  B.  (l.  S.) 

X.  Y.  J        C.  1;.  (L.  s.) 

For  form  of  justification  of  sureties,  see  Form  7. 


c^54  Probate  Law  and  Practice. 

Form  1 6.     Oath  of  Administrator  With  the  Will  Annexed. 

State  of  New  Jersey,  ) 

County  of  Essex.       j 

A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 

deposes  and  says  that  the  foregoing  writing  contains  the  true 

last  will  and  testament  of  John  Doe,   deceased,   the  testator 

therein  named,  as  far  as  he  knows  and  as  he  verily  believes ; 

that  he  will  as  such  administrator  well  and  truly  perform  the 

same,  lirst  by  paying  the  debts  of  said  deceased,  and  then  the 

legacies   therein   specified   as    far   as   the   goods,   chattels   and 

credits  of  said  deceased  will  thereunto  extend,  and  the  law 

charge  him ;  that  he  will  make  and  exhibit  into  the  Surrogate's 

Ofifice  of  the  County  of  Essex  a  true  and  perfect  inventory 

of  all  and  singular  the  said  goods,  chattels  and  credits,  as  far 

as  the  same  have  or  shall  come  to  his  possession  or  knowledge, 

or  to  the  possession  of  any  other  person  or  persons  to  his 

use,  to  his  knowledge :   and  that  he  will  well  and  truly  account 

when  thereunto  lawfully  reciuired.    And  that  said  testator  died 

on  the day  of   ,   19.  .  . 

-^ 
Subscribed  and  sworn  to  this 

day  of    , 

19. . .  .,  at  Newark,  N.  J.,  before 


^  A.  B. 


me. 


J 


J.  C.  F.,  Jr., 
Surrogate. 

This  affidavit  must  he  taken  before  the  Surrogate. 


Form  17.    Letters  of  Administration  With  the  Will  Annexed. 

[See  Orphans'  Court  Act.  section  35,  3  Comp.  Stat.,  page  3825.] 

Essex  County  Surrogate's  Court. 
State  of  New  Jersey, 


County  of  Essex.       ' 

To  all  to  whom  these  presents  shall  come,  greeting: 

Whereas,    late  of  the  County  of    ,  in  the 

State  of   ,  departed  this  life,  having  made  and  exe- 


Probate  of  Wills.  955 

cuted  a  last  \vill  and  testament,  which  has  been  duly  proved, 
according   to    law,   before    the    Surrogate   of    the    County    of 

;  and  whereas  the  said  testator  failed  to  appoint  any 

executor  thereof  (or  the  executor  named  therein  has  re- 
ywunced  the  trust  imposed  upon  him  by  said  zi'ill.  or  as  the  case 
may  be):    therefore. 

I.  F.  G.  S..  jr..  Surrogate  of  the  County  of  Essex,  do  hereby 

appoint administrator  of  all  and  singular  the  goods. 

chattels  and  credits  of  the  said  deceased,  who  is  duly  authorized 
to  administer  the  same  agreeably  to  said  will. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 

of  office,  this day  of in  the  year  of  our  Lord, 

one  thousand  nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate. 


FOREIGN  WILLS. 


Form  18.     Petition  for  Probate  of  Foreign  Will. 

[See  Orphans'  Court  Act.  section  23,  page  211,  supra;    and  Orphans' 
Court  Rule -I.  page  258,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of  a 
copy  of  the  will  of  John  Doe, 
deceased,  admitted  to  probate 

in  tlie  State  of  New  York. 

J 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  A.  B.,  of  the of in  the  Coun- 
ty of    and   State  of    respectfully  shows  that: 

I.     John   Doe,  late  of  the  City,  County  and  State  of  New 

York,  dej)arted  this  life  on  the (l;iv  of 19.  .  . , 

having  first  duly  made  and  executed  a  jiaper  writing  purport- 
ing to  be  his  last  will  and  testament  ;  <-uul  your  petitioner, 
A.  B.,  is  the  sole  executor  therein  named. 


95^  Probate  Law  and  Practice. 

2.  The  aforesaid  will  of  the  said  John  Doe,  deceased,  was 

on   the    day  of    ,    19.  .  . ,   duly   admitted  to 

probate  by  the  Surrogate  of  the  said  County  of  New 
York,  and  a  copy  of  the  record  of  said  will  and  of  the 
certificate  of  probate  thereof,  duly  certified  and  attested 
as  a  true  copy  by  the  said  Surrogate  of  the  said  County  of 
New  York,  and  duly  exemplified  and  authenticated  accord- 
ing to  the  act  of  Congress  in  such  case  made  and  provided,  is 
hereunto  annexed. 

3.  The  said  John  Doe  left  him  surviving  as  his  next  of  kin 
and  heirs  at  law,  two  children,  to  wit :  William  Doe,  and  John 
Doe,  both  of  whom  reside  at  and  whose  post-office  addresses  are 

No Street,  in  the of in  the  County  of  .... 

and  State  of    The  said  William  Doe  is  of   full  age 

and  the  said  John  Doe  is  a  minor  of  the  age  of  fourteen  years 
who  resides  with  his  brother  William  at  the  aforesaid  address. 

4.  The  said  John  Doe  died  possessed  of  personal  property 

within  the  said  County  of  Essex  of  the  value  of    

dollars,   and   seized   of  real   estate  within   the    State   of   New^ 

Jersey  of  the  value  of   dollars,  the  incorne  whereof 

amounts  to dollars  annually  (and  the  said  John  Doc 

in  and  by  his  said  tc///  cvpressly  provided  that  the  executor 
therein  named  should  not  be  required  to  give  security  for  the 
faithful  performance  of  Jiis  duties  as  such  executor). 

Your  petitioner  therefore  prays  that  the  aforesaid  will  of 
the  said  John  Doe  be  admitted  to  probate  in  this  state,  and 
that  letters  testamentary  thereon  be  issued  to  him. 


Dated    Newark.    N.    J., 


A.  B. 


State  of  New  Jersev 


County  of  Essex. 


■■} 


A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  l^est  of  his  knowledge  and  belief. 


Probate  of  Wills.  957 


Subscribed  and  sworn  to  this"> 

day  of    I 

19 at  Newark,  N.  J..  l)efore  ( 


A.  B. 


me. 


J.  C.  F., 

Xotarv   rul)lic  of  X.    T- 


Form  19.     Order  Granting  Probate  of  Foreign  Will. 

[See  Orphans'  Court  Act.  section  23.  page  211.  supra.] 

Essex  County  Surrogate's  Col^rt. 

In  the  matter  of  the  probate  of  a"^ 

copy  of  the  will  of  Tohn  Doe,  .^     t^    •  • 

^     '       J  t,  ..  y     •        .1      r       ^  •'i''  1  etition. 

deceased,     probated      m      the 

State  of  New  York. 

J 

Order  Granting  Probate 
of  Foreign  Will. 

It  appearing  from  the  verified  i^etition  filed  herein  by  A.  B. ' 
that  John  Doe,  late  of  the  City,  County  and  State  of   New 

York,  died  on  or  about  the   day  of    ,   19.  .  ., 

having  first  duly  made  and  executed  a  paper  writing  purport- 
ing to  be  his  last  will  and  testament,  wherein  A.  B..  the  said 
petitioner,  was  appointed  executor  thereof,  and  it  further 
appearing  that  the  .said  John  Doe,  deceased,  was  not  at  the 
time  of  his  death  a  resident  of  this  state,  but  was  a  resident 
of  the  City,  County  and  State  of  New  York,  and  that  the 
aforesaid  writing  was  duly  admitted  to  jirobate  by  the  Surro- 
gate of  the  said  County  of  New  York,  as  and  for  the  last  will 
of  the  said  John  Doe.  deceased; 

And  it  further  appearing  that  a  copy  oi  the  record  of  such 
will  and  the  certificate  of  the  said  probate  thereof,  certified  and 
attested  as  a  true  copy  by  the  Surrogate  of  the  said  County  of 
New  York,  by  whom  the  said  will  was  admitted  to  probate  as 
aforesaid,  and  exemplified  and  authenticated  according  to  the 
act  of  Congress,  has  been  filed  in  this  court,  and  it  appearing 


958    ^  Probate  Law  and  Practice:. 

by  the  aforesaid  record  of  probate  that  said  will  was  duly 
executed  in  accordance  with  the  laws  of  this  state. 

It  is  thereupon,   on  this    day  of    ,    19..., 

ordered  and  adjudged  that  the  aforesaid  will  of  the  said  John 
Doe  be  and  the  same  hereby  is  admitted  to  probate  in  this 
State,  and  it  is  further  ordered  that  letters  testamentary  be 
issued  thereon  to  the  said  A.  B.,  the  executor  in  said  will 
named. 

F.  G.  S.,  Jr., 

Surrogate. 

If  the  executor  is  a  non-resident  he  will  be  recjuired  to  give 
bonds  unless  such  requirement  be  waived  by  the  will ;  for  form 
of  bond  see  Form  6. 

If  the  application  for  probate  be  made  by  some  person  other 
than  the  executor  named  in  the  will,  ten  days'  notice  of  such 
application  must  be  given  to  the  executor  and  persons  entitled 
to  administration  thereon. 


WHEN  DOUBTS  ARISE   ON   FACE  OF  WILL. 

Form  20.    Adjudication  That  Doubts  Arise  on  the  Face  of  a  Will. 

[See  Orphans'  Court  Act.  section  13,  page  196.  supra.] 

EssKx  CouNTv  Surrogate's  Court. 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Petition  for  Probate. 
deceased.  J 

Adjudication  that  Doubts  Arise  on 
the  Face  of  the  Will. 

,    the    executor    named    in    a    certain    paper 

writing,  bearing  date  of  the day  of 19.  .  . . 

and  purporting  to  be  the  last  will  and  testament  of  John  Doe. 

late  of  the of in  the  County  of  Essex  and 

State  of  New  Jersey,  deceased,  having  filed  his  petition  herein 
praying  that  the  said  paper  writing  be  admitted  to  probate  as 
the  last  will  and  testament  of  the  said  John  Doe,  deceased, 


Probatk  of  Wills.  ,    959 

and  it  appearing  upon  an  inspection  of  said  paper  writing  that 
the  tignres  $1000.  appearing  upon  the  tenth  hue  on  the  third 
page  thereof  have  been  crossed  out  and  the  figures  $2000.  sub- 
stituted therefor  by  interhning  the  same,  and  there  being  no 
note  or  memorandum  in  said  paper  writing  to  show  whether 
or  not  the  aforesaid  changes  in  said  will  were  made  by  the 
said  testator,  or  by  another  at  his  request,  before  the  execution 
of  said  paper  writing. 

It  is  thereupon  on  this day  of ,  19.  .  . ,  pur- 
suant to  the  statute  in  such  case  made  and  provided,  adjudged 
that  doubts  arise  ui)on  the  face  of  the  aforesaid  will. 

F.  G.  S.,  Jr., 
Surrogate. 


Form  21.    Citation  Where  Doubts  Arise  on  the  Face  of  a  Will. 

[See  Orphans'  Court  Act,  Section  13,  page  196.  supra.] 

Essex  County  ORPifAxs'  Court. 


State  of  New  Jersey 
County  of  Essex. 


>  ss. 


The  State  of  New  Jersey. 

To  Jane  Doe,  William  Doe.   Henry  Doe 
'■         '^    _  and  Charles  Doe, 

Greeting: 

William  Doe,  the  executor  named  in  a  paper  writing  pur- 
porting to  be  the  last  will  and  testament  of  John  Doe,  deceased, 
having  duly  presented  his  petition  to  the  Surrogate  of  the 
County  of  Essex  for  the  probate  of  the  aforesaid  paper  writing, 
and  the  Surrogate  having  adjudicated  that  doubts  arise  upon 
the  face  of  the  aforesaid  paper  writing. 

You  are  therefore  cited  and  commanded  to  personally  be 
and  aj)pear  before  the  Orphans'  Cotirt,  to  be  holden  at  the 
Court  House,  in  the  City  of  Newark,  in  and  for  the  County 

of  Essex,  on ,  the day  of ,  19.  .  .,  at 

ten  o'clock  in  the  forenoon,  at  which  time  the  court  will  hear 
and  determine  the  matters  in  controversy. 
62 


960  Probate  Law  and  Practice. 

Witness  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 

Newark  aforesaid,  this day  of ,  one  thousand 

nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 
This  citation  must  be  served  by  the  sherifif. 


Form  22.    Decree  Admitting  Will  to  Probate  When  Doubts  Arise 
on  the  Face  of  the  Will. 

[See  Orphans'  Court  Act.  section  13.  page  196,  supra.] 

Essex  Count v  Orphans'  Court. 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  VOn  Petition  for  Probate  of 
deceased.  j  Will. 

Decree  for  Probate. 

This  matter  being  opened  to  the  court  by    

of  counsel  with  proponent,  and  it  appearing  that  heretofore 

a  certain  paper  writing,  bearing  date  of  the    day  of 

,  19.  .  .,  purporting  to  be  the  last  will  and  testament 

of  John  Doe,  deceased,  was  duly  offered  for  probate  before  the 

vSurrogate  of  the  County  of  Essex  aforesaid  by ,  the 

executor  therein  named ;  and  tiie  said  Surrogate  having  duly 
adjudicated  that  doubts  arise  on  the  face  of  the  said  will  and 
citations  to  all  persons  concerned  to  appear  in  this  court 
having  been  thereupon  duly  issued  and  returned  duly  served ; 
and  the  matter  now  coming  on  to  be  heard  ;  and  the  court 
having  taken  testimony  and  heard  the  allegations  of  the  parties 
herein  and  being  satisfied  that  the  aforesaid  paper  writing 
was  duly  executed  by  the  said  John  Doe  as  and  for  his  last 
will  and  testament,  and  that  the  said  John  Doe,  at  the  time 
of  executing  the  said  paper  writing,  was  in  all  respects  compe- 
tent to  execute  the  same  and  was  not  under  any  restraint  or 
undue  influence  ;  and  the  court  being  satisfied  that  the  said 
John  Doe  after  the  execution  of  said  paper  Avriting  crossed  out 
the  figures  $1000.  appearing  upon  the  tenth  line  on  the  third 


Probate  of  Wills.  961 

page  of  said  paper  writing  and  sul)stituted  therefore  the  figures 
$2000.  ]))•  interlining  the  same. 

It  is  thereupon  on  this dav  of    ,   19.  .  . ,  on 

motion    of     of    counsel    with    the    proponent, 

ordered,  adjudged  and  decreed  that  the  said  paper  writing,  with 
the  exception  of  the  figures  $2000.  interlined  as  aforesaid,  and 
with  the  figures  $1000.  crossed  out  as  aforesaid  restored  there- 
to, be  and  the  same  hereby  is  established  as  the  last  will  and 
testament  of  the  said  John  Doe,  deceased,  and  that  the  same 
be  and  hereby  is  admitted  to  probate,  and  it  is  further  ordered 
that  letters  testamentary  be  issued  upon  the  aforesaid  will  to 

,    the    executor    therein    named,    upon    his    duly 

qualifying  as  such. 

And  it  is  further  ordered  that  a  counsel  fee  of 

dollars  be  allowed  to of  counsel   wath   proponent, 

and  that  said  counsel  fee,  together  with  the  costs  of  this  matter 

to  be  taxed,  be  paid  by   ,  executor  as  aforesaid, 

from  the  estate  of  the  said  John  Doe.  deceased. 

W.   P.  M., 

J- 

WHERE  CAVEAT  FILED  AGAINST  PROBATE  OF  WILL. 
Form  23.     Caveat  Against  Probate  o£  Will. 

[See  Orplians'  Court  Act,  section  13,  i)age  196,  supra.] 

Essex  County  Surrogate's  Court. 
In   the  matter  of  the  probate  of  the  ") 
alleged  will  of  John  Doe,  deceased,  j 

Caveat  Against  Probate  of  JVill. 
To  F.  C.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

I,  William  Doe,  one  of  the  children  and  next  of  kin  of  John 

Doe,  late  of ,  who  died  on  the day  of , 

19...,    do    hereby    caveat    and    protest    against    admitting   to 
probate  any  paper  purporting  to  be  the  last  will  and  testament 
of  the  said  John  Doe,  until  examination  and  decree  thereon 
by  the  Orphans'  Court  of  said  Count v  of  PvSsex. 
Dated  Newark,  N.  J.. 

^9-  ••  William  Doc. 


962  Probate  Law  and  Practice. 

Form  24.     Citation  on  Caveat. 

[See  Orphans'  Court  Act,  section  13.  page  196.  supra.] 

Essex  County  Orphans'  Court. 


State  of  New  Jersey 
County  oe  Essex 


'\ss. 


The  State  of  New  Jersey, 
f[L.  S.]  To  William  Doe,  Greeting: 

\\'e  cite  and  command  you.  that  you  personally  be  and  appear 
before  the  Orphans'  Court,  to  be  holden  at  the  Court  House, 
in  the  City  of  Newark,  in  and  for  the  County  of  Essex,  on  the 

day  of ,  19. . .,  at  ten  o'clock  in  the  forenoon, 

to  answer  unto  the  caveat  of  William  Doe  against  admitting  to 
probate  any  paper  writing  purporting  to  be  the  last  will  and 
testament  of  John  Doe,  deceased,  and  to  abide  the  judgment  of 
the  said  court  in  the  premises. 

Witness,  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 

Newark  aforesaid,  this day  of one  thousand 

nine  hundred  and ^ 

F.  G.  S.,  Jr., 

Surrogate  and  Clerk. 
This  citation  must  be  served  by  the  sheriff. 


Torm  25.     Order  of  Orphans'  Court  Admitting  Will  to  Probate  on 
Caveat. 

[See  Orphans'  Court  Act,  section  13,  page  196,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of) 

a  paper  purporting  to  be  the  '•   ^,     ^.    ..        -      td     ,    , 

f  t-       I      I  !5  vOn  Petition  tor  Probate, 

last    will    and    testament    of 

John  Doe,  deceased. 

Order  Granting  Probate. 

This  matter  being  opened  to  the  court  by  A.   B.,  proctor 
for  proponent,  and  it  appearing  that  John  Jones,  the  executor 


Probatk  of  Wills.  q().v 

named  in  the  last  will  and  testament  of  John  Doe.  late  of  the 
County  of  Essex,  deceased,  duly  presented  the  said  ])aper  to 
the  Surrogate  of  the  County  of  Essex  aforesaid  for  probate, 
and  it  appearing  that  a  caveat  against  the  probate  of  said  will 
had  been  duly  tiled  with  the  said  Surrogate,  and  citations 
having  been  issued  to  all  persons  in  interest  and  returned 
duly  served,  and  the  matter  coming  on  to  l)e  heard,  and  the 
court  having  taken  testimon)-  and  examined  into  the  matter. 
and  being  of  the  opinion  that  the  said  paper  writing  was  duly 
executed  by  the  said  John  Doe  as  and  for  his  last  will  and 
testament  in  manner  and  form  prescribed  by  the  statute  in 
such  case  made  and  provided,  that  said  John  Doe  at  the  time  of 
making  said  w'ill  was  of  sound  and  disposing  mind,  memory 
and  understanding,  and  that  said  will  was  not  the  product  of 
undue  influence. 

It  is   thereupon,   on   this    day   of    19.  .  . . 

ORDERED^  ADJUDGED  and  DECREED  that  the  aforesaid  paper 
writing  be  and  the  same  hereby  is  established  as  the  last  will 
and  testament  of  the  said  John  Doe,  deceased,  and  that  the 
same  be  admitted  to  probate,  and  it  is  further  ordered  that 
letters  testamentary  thereon  be  issued  to  the  said  John  Jones, 
the  executor  in  said  will  named  upon  his  duly  r|ualifying  as 
such. 

And  it  is   further  ordered  that  a  counsel   fee  of    

dollars  be  allowed  to  A.  B.,  proctor  for  proponent,  and  the 
court  being  satisfied  that  the  caveator  herein  had  reasonable 
cause  for  contesting  the  validity  of  the  said  will,  it  is  further 

ordered  that  a  counsel  fee  of   dollars  be  allowed  to 

C.  D.,  proctor  for  the  caveator,  the  aforesaid  counsel  fees  to 
be  paid  by  the  said  John  Jones,  the  executor  named  in  said 
will,  out  of  the  estate  of  the  said  testator. 

W.  P.  M., 

Judge. 


964  Probate  Law  and  Practice. 

Form  26.  Order  of  Orphans'  Court  Denying  Probate  of  Will  on 
Caveat. 

[See  OrpliaiTs'  Court  Act.  section  13.  page  196.  supra.] 

Essex  County  Orphans'  Court. 


On  Petition  for  Probate. 


In  the  matter  of  the  probate  of" 
a  paper  purporting  to  be  the 
la.st  will  and  testament  of  John 
Doe,  deceased. 

Order  Dcnyiug  Probate. 

This  matter  being  oj^ened  to  the  court  by  A.  B..  proctor  for 
proponent,  and  it  appearing  that  John  Jones,  the  executor 
named  in  a  paper  writing  purporting  to  be  the  last  will  and 
testament  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 
duly  presented  the  said  paper  to  the  Surrogate  of  the  County 
of  Essex  aforesaid  for  probate,  and  it  appearing  that  a  caveat 
against  the  probate  of  said  paper  writing  had  been  duly  filed 
with  the  said  Surrogate,  and  citations  having  been  issued  to  all 
persons  in  interest  and  returned  duly  served,  and  the  matter 
coming  on  to  be  heard,  and  the  court  having  taken  testimony 
and  examined  into  the  matter  and  being  of  the  opinion  that 
the  said  John  Doe  at  the  time  of  executing  said  paper  writ- 
ing was  not  of  sound  and  disposing  mind,  memory  and  under- 
standing ( or,  that  the  aforesaid  paper  zvritiug  executed  by 
the  said  John  Doe  zvas  the  product  of  undue  influence,  exer- 
cised ovr  him  by  one  X.  Y.,  or  that  the  aforesaid  paper  zvriting 
purporting  to  be  the  last  tvill  and  testament  of  the  said 
John  Doe,  deceased,  was  not  executed  in  nninner  and  form  as 
recpiired  by  the  statute  in  such  case  made  and  provided). 

It  is  thereupon,  on   this    day  of    ,    19.  .  ., 

ORDERED,  adjudged  and  decreed  that  the  aforesaid  paper  writ- 
ing offered  for  probate  in  this  matter  is  not  the  last  will  and 
testament  of  the  said  John  Doe,  deceased  and  that  probate  of 
the  same  is  hereby  denied,  and  it  is   further  ordered  that  a 

counsel  fee  of   dollars  be  allowed  to  A.  B.,  proctor 

for  proponent,  and  that  a  counsel  fee  of   dollars  be 

allowed  to  X.  Y.,  proctor  for  the  caveator,  said  counsel  fees 
to  be  paid  from  the  estate  of  the  said  John  Doe,  deceased. 

W.  P.  M., 

Judge. 


Pkobatic  of  Wills.  965 

TRIAL    BEFORE   A   JURY    OF    DISPUTES    CONCERNING 

PROBATE  OF  WILLS. 
Form  27.     Petition  for  Certificate  for  Trial  before  a  Jury  of  Dis- 
pute Concerning  Probate  of  Will. 

[See  Orphans'  Court  Act,  section  18.  page  226.  supra.] 

Essex  Couxtv  Okpiiaxs"  Court. 

In  the  matter  of  the  probate  of^   ^     ^.  •        -n     , 

,        ,,        ,      -,1      r  T  1      T^       I  C)n  Caveat  against  Jrrobate 

the  alleged  will  of  ohn  Doe.  >        .  .-,.,, 

°  -  (of  Will, 

deceased.  J 

Petition. 

To  THE  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  A.  B.,  of  the of in  the  Coun- 
ty of  and  State  of ,  respectfully  shows  that: 

1.  John  Doe,  late  of  the of in  the  County 

of  Essex  and  State  of  New  Jersey,  died  on  the day  of 

,  19  ....  and  more  than  ten  days  ago,  leaving  a  paper 

writing  purporting  to  be  his  last  will  and  testament,  bearing 

date  of  the   day  of    19.  .  . ,  wherein  he  ap- 

])ointed  }Our  petitioner  the  sole  executor  thereof. 

2.  Your  petitioner,  on  the   day  of   ,  19. . ., 

and  more  than  ten  days  after  the  death  of  the  said  John  Doe, 
presented  the  said  writing  to  the  Surrogate  of  the  said  County 
of  Essex  for  probate,  but  C.  D.,  one  of  the  children  and  next 
of  kin  of  the  said  John  Doe,  having  filed  his  caveat  against  the 
probate  thereof,  probate  of  said  will  was  refused  by  the  said 
Surrogate. 

3.  The  said  Surrogate  has  duly  issued  citations  to  all  persons 
concerned  to  appear  before  this  court  to  show  cause  why  said 
will  should  not  be  admitted  to  probate,  which  have  been 
returned  duly  served. 

4.  The  issues  involved  in  this  proceeding  involve  only  pure 
questions  of  fact,  and  your  ])etitioner  desires  that  they  niav  be 
determined  by  a  jury. 

Your  petitioner  therefore  prays  thai  the  (|uestions  involved 
in  such  controversy  may  be  certified  into  the  Circuit  Court  of 
the  County  of  Essex  for  trial  before  a  jury,  pursuant  to  the 
statute  in  such  case  made  and  provided. 


c)66  Probatk  Law  and  Practice. 

Dated    Newark    N.    J.,  ^   -g 
, ,  I9--- 


State  oe  New  Jersey, 
County  of  Essex. 


SEY,  ) 
X.        J 


A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 
tition named  and  that  the  matters  and  things  contained  therein 
are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this"^ 
day  of    , 

19.  . .  .,  at  Newark,  N.  J.,  before 


V  A.  B. 


me, 


J.  C.  F., 

Notary  Public  of  N.  J. 


Form  28.     Certificate  for  Trial  Before  a  Jury. 

[See  Orphans'  Court  Act.  section  18,  page  226,  supra.] 

Essex  County  Orphans'  Court.. 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  >On  Caveat  against  Probate 
deceased.  J       of  Will. 

•  Certificate  for  Trial  Before 

a  Jury. 

A.  B.,  the  above-named  proponent,  having  presented  a  paper 

writing,  bearing  date  of  the   day  of    ,   19.  •  •, 

and  purporting  to  be  the  last  will  and  testament  of  John 
Doe,  deceased,  to  the  Surrogate  of  the  County  of  Essex  for 
probate,  and  C.  D.,  having  filed  a  caveat  against  the  probate 
thereof  and  the  Surrogate  having  issued  citations  to  all  persons 
concerned  to  appear  before  this  court  to  show  cause  why  the 
said  will  should  not  be  admitted  to  probate,  which  citations 


Probate  of  \\'ills.  967 

have  been  returned  duly  served ;  and  the  matters  in  contro- 
versy and  the  said  parties  now  being  before  the  court,  and  the 
said  A.  B.  having  presented  his  petition  praying  that  the  ques- 
tions involved  in  such  controversy  be  certified  into  the  Circuit 
Court  for  trial  before  a  jury: 

It  is  thereupon,  on  this day  of   ,  19.  .  .,  on 

motion  of .of  counsel  with  proponents,  ordered  that 

the  following  questions  involved  in  this  case  be  and  the  same 
hereby  are  certified  into  the  Circuit  Court  of  said  County 
of  Essex  for  trial  before  a  jury  pursuant  to  the  statute  in  such 
case  made  and  provided,  to  wit : 

first.  \\'hether  the  paper  writing  presented  to  the  Surro- 
gate of  said  County  of  Essex  for  probate  as  and  for  the  last 
will  of  John  Doe,  deceased,  was  duly  signed,  witnessed,  pub- 
lished and  declared  by  the  said  John  Doe  as  and  for  his  last 
will  and  testament,  according  to  the  statute  in  such  case  made 
and  provided. 

Second.  Whether  the  said  John  Doe,  at  the  time  of  making 
and  executing  his  alleged  will  as  aforesaid,  was  of  sound  and 
disposing  mind  and  memory. 

Third.  Whether  the  said  alleged  will  of  the  said  John  Doe, 
deceased,  was  the  result  of  undue  influence,  imposition  or 
fraud,  exercised  upon  the  said  John  Doe  by  any  of  the  legatees 
or  devisees  in  said  will  named,  or  by  any  other  person  or 
persons. 

Fourth.  Whether  certain  marks  and  lines  appearing  upon 
said  instrument  were  the  act  of  the  said  John  Doe,  and.  if 
so,  whether  they  were  intended  by  him  as  a  cancellation  of 
said  will. 

fifth.  Whether  the  said  paper  writing  is  the  last  will  and 
testament  of  the  said  John  Doe,  deceased. 

W.  P.  M., 

Judge. 


968  Probate  Law  and  Practice. 

Form  29.    Order  Framing  Issue. 

[See  Orphans'  Court  Act,  section  18,  page  226,  supra.] 

Essex  County  Circuit  Court. 

AMlliam  Doe,"^ 

vs.  >On  Appeal  from  Prol)ate  of  Will. 

James  Doe.   J 

Order  Framing  Issue. 

James  Doe,  the  above-named  appellee  having  presented  a 
paper  writing  purporting  to  be  the  last  will  and  testament  of 
John  Doe,  deceased,  to  the  Surrogate  of  the  County  of  Essex 

for  probate,  and  the  said  Surrogate,  on  the    day  of 

,  A.D.,   19.  .  .  .,  having  made  and  entered  an  order 

admitting  said  instrument  to  probate  as  and  for  the  last  will 
and  testament  of  said  John  Doe,  deceased,  and  further  ordered 
that  letters  testamentary  be  issued  to  said  appellee,  James  Doe, 
on  said  last  mentioned  date  ;    and  the  said  appellant,  William 

Doe,  having  on  the    day  of    A.D.,    19 

filed  with  the  Surrogate  of  said  County  a  petition  of  appeal 
from  the  said  order  of  said  Surrogate  granting  probate  of  said 
alleged  last  will  and  testament  of  said  John  Doe,  deceased, 
and  the  said  Surrogate  having  cited  all  persons  concerned  as 
next  of  kin,  heirs  at  law,  devises  or  legatees  to  appear  before 
the  Orphans'  Court  of  the  County  of  Essex  to  answer  the 
matter  of  said  appeal  from  the  order  of  the  said  Surrogate 
admitting  to  probate  said  alleged  last  will  of  said  John  Doe, 
deceased ;  and  the  said  Orphans'  Court  of  the  said  County 
of  Essex  having  upon  the  petition  of  the  said  W'illiam  Doe, 

by  its  order  made  on  the    day  of    19.  •  ■ ,. 

ordered  that  certain  questions  be  certified  into  the  Circuit  Court 
of  the  said  County  of  Essex,  for  trial  before  a  jury,  to  wit : 

First.  Whether  the  said  paper  writing  presented  to  the 
Surrogate  of  said  County  of  Essex  for  probate,  and  by  him 
ordered  to  be  admitted  to  probate,  as  and  for  the  last  will  and 
testament  of  John  Doe,  deceased,  was  duly  signed,  witnessed, 
published  and  declared  by  the  said  John  Doe  as  and  for  his  last 
will  and  testament  according  to  the  statute  in  such  case  made 
and  provided. 


Probatk  of  W'iij.s.  969 

Second.  Whether  at  the  time  of  making  and  executing  his 
alleged  last  will  and  testament  said  John  Doe  was  of  sound  and 
disposing  mind  and  memory,  and  as  such  capal)le  of  disposing 
of  his  estate  by  will. 

Third.  Whether  the  said  alleged  will  of  the  said  John  Doe, 
deceased,  was  the  result  of  undue  influence,  imposition  or  fraud 
upon  the  said  John  Doe,  deceased,  by  James  Doe,  sole  bene- 
ficiary under  said  alleged  will,  or  by  any  other  person  or 
persons. 

Fourth.  Whether  the  said  paper  writing  is  the  last  will  and 
testament  of  said  John  Doe,  deceased. 

It  is  on  this day  of ,  nineteen  hundred  and 

......  on  motion  of and Attorneys  for  William 

Doe,  ordered  that  a  trial  by  jury  be  had  to  determine  the  follow- 
ing questions,  to  wit : 

First.  Whether  the  said  paper  writing  presented  to  the 
Surrogate  of  the  County  of  Essex  for  probate,  and  by  him 
ordered  to  be  admitted  to  probate  as  and  for  the  last  will  and 
testament  of  John  Doe,  deceased,  wa-s  duly  signed,  witnessed, 
published  and  declared  by  the  said  John  Doe  as  and  for  his  last 
will  and  testament  according  to  the  statute  in  such  case  made 
and  provided. 

Second.  Whether  at  the  time  of  making  and  executing  his 
alleged  last  will  and  testament  the  said  John  Doe  was  of  sound 
and  disposing  mind  and  memory,  and  as  such  capable  of  dis- 
posing of  his  estate  by  will. 

Third.  Whether  the  said  alleged  will  of  the  said  John  Doe. 
deceased,  was  the  result  of  undue  influence,  imposition  or  fraud 
upon  the  said  John  Doe,  deceased,  by  James  Doe,  sole  bene- 
ficiary under  said  alleged  will,  or  by  any  other  person  or 
persons. 

Fourth.  Whether  the  said  pa|)er  writing  is  the  last  will  and 
testament  of  said  John  Doe,  deceased. 

And  it  is  further  ordered  that  a  venire  issue  according  to  law 
and  the  ])ractice  of  this  court  for  the  empaneling  of  said  jury. 

Let  the  foregoing  order  be  entered. 

N.  Y.  D., 
Judge. 


970  Probate  Law  and  Practick. 

Form  30.     Certificate  of  Judge  of  Circuit  Court. 

[See  Orphans'  Court  Act,  section  ly.  page  227,  supra.] 

Essex  County  Circuit  Court. 

A.    B.,    Proponent,^ 

vs.  >On  Caveat  Against  Probate  of  Will 

C.  D.  Caveator.         J  of  John  Doe.  deceased. 

Certificate  uf  Trial  in  Circuit  Court. 

To  the  ORPIIAN^'  Court  of  the  County  oe  Essex. 

I,  F.  A.,  Judge  of  the  Circuit  Court  of  the  County  of  Essex, 
do  hereby  certify  and  return  to  the  Orphans'  Court  of 
said  county,  that  a  certificate  certifying  the  above-stated  mat- 
ter into  the  said  Circuit  Court  for  trial  before  a  jury  having 
been  filed  with  the  clerk  of  said  Circuit  Court,  I,  as  Judge 
holding  such  court,  did  frame  an  issue  which  is  filed  in  the 
office  of  the  clerk  of  said  court  and  a  true  coi)y  whereof  is 
hereunto   annexed,   and  'that   the   issue   so    framed   was   dulv 

tried  before  me  at  the term  of  said  Circuit  Court  at 

Newark,  by  a  jury  duly  empaneled  and  sworn  to  speak  the 
truth,  and  that  thereu])on  witnesses  were  sworn  and  exam- 
ined, that  the  testimony  of  such  witnesses  was  taken  down 
stenographically  and  reduced  to  writing  as  required  by  .V.  B., 
the  above-named  proponent,  -and  that  all  exceptions  which 
were  taken  to  the  admission  or  rejection  of  testimony  were 
entered  upon  the  record,  which  said  testimony  and  the  said 
exceptions  entered  as  aforesaid  are  hereunto  annexed,  and 
that  a  true  copy  of  the  charge  delivered  by  me  to  the  jury,  to- 
gether with  the  exceptions  taken  thereto  by  counsel  for  C.  D., 
the  above-named  caveator,  and  a  certified  copy  of  the  costs 
taxed  and  a  statement  of  the  expenses  of  said  trial  are  also 
hereunto  annexed,  and  I  further  certify  that  the  said  jury 
did  certify  and  return  their  verdict  as  follows : 

First.  That  the  paper  writing,  presented  to  the  Surrogate 
of  said  County  of  Essex  for  probate  as  and  for  the  last  will 
of  John  Doe,  deceased,  was  duly  signed,  witnessed,  published 
and  declared  by  the  said  John  Doe  as  and  for  his  last  will  and 


Pkobatk  of  W'ilIvS.  971 

testament   accordiiig-   to   the   statute    in    such    case   made   and 
provided. 

Second.  That  the  said  Jolin  Doe,  at  the  time  of  making 
and  executing  his  alleged  will  as  aforesaid,  was  of  sound  and 
disposing  mind  and  memory. 

lliird.  That  the  said  alleged  will  of  the  said  John  Doe. 
deceased,  was  not  the  result  of  undue  influence,  imposition 
or  fraud  exercised  upon  the  said  John  Doe  hv  anv  of  the  leg- 
atees or  devisees  in  said  will  named,  or  hy  any  other  person  or 
persons. 

Fourth.  That  the  marks  and  lines  appearing  upon  the 
said  instrument  were  not  the  act  of  the  said  John  Doe,  hut 
were  placed  upon  said  will  aftev  the  execution  thereof  1)\-  a 
])erson  or  persons  unknown. 

Fifth.  That  the  said  paper  writing  is  the  last  will  and 
testament  of  the  said  John  Doe,  deceased. 

All  of  which  I  hereby  certify  and  return,  according  to  the 
statute  in  such  case  made  and  provided  this    dav  of 

,  I9--.. 

F.  A., 

Judge. 


Form  31.     Decree  of  Orphans'  Court  on  Case  Certified  to  Circuit 
Court  for  Trial. 

[.See  Orplians'  C()urt  .\ct,  section  19,  page  229,  su|)ra.l 

Essex  Countv  Orphans'  Court. 

In  the  matter  of  the  j^rohatc  of^ 

the  alleged  \vill  of   John  Doe.  > On  Caveat  against  Probate 
deceased.  J       of  \\'ill. 

Order  Adinittimi    Will 
to   J'rohaic. 

Whereas,  ui)on  tiie  ap])licalion  of  \.  T...  the  ;ili()\e-nanu-d 
])ro|)onent.  this  court  certified  into  i\\v  Circuit  Court  in  and 
for  the  said  Countv  of  b'ssex   for  tri.'il  before  a   iur\    u]i<in  an 


972  Probate  Law  and  Practice. 

issue  to  be  framed  by  the  Judge  of  the  said  Circuit  Court  for 
that  purpose,  the  following  questions  involved  in  the  contro- 
versy concerning  the  probate  of  the  alleged  will  of  the  said 
John  Doe,  deceased,  to  wit.:  {here  insert  the  questions  con- 
tained in  the  certificate  of  Orphans'  Court),  and  it  appear- 
ing that  the  said  certificate  of  this  court  was  duly  filed  with 
the  clerk  of  the  said  Circuit  Court ;  that  an  issue  was  duly 
framed  by  the  Judge  of  the  said  Circuit  Court  and  a  trial  had 
thereon  before  a  jury  in  the  same  manner  as  in  causes  com- 
menced in  said  Circuit  Court ; 

And  it  appearing  that  after  the  said  trial  was  concluded  the 
Judge  of  the  said  Circuit  Court  did,  by  certificate  duly  filed  in 
the  office  of  the  Surrogate  oi  said  County  of  Essex,  certify 
and  return  to  the  Orphans'  Court  the  proceedings  thereon 
had,  and  the  verdict  of  the  jury,  together  with  the  testimony,  a 
copy  of  the  charge  to  the  jury,  all  exceptions  taken  at  the 
trial  to  the  admission  or  rejection  of  evidence  or  to  the 
charge  to  the  jury,  together  with  a  certified  copy  of  the  costs 
which  have  been  taxed  and  a  statement  of  the  expenses  of  the 
said  trial,  and  it  appearing  from  the  aforesaid  certificate  that 
the  said  jury  did  find  and  render  their  verdict  as  follows: 
{insert  findings  of  jury  as  in  certificate  of  Judge  of  Circuit 
Court),  and  due  notice  of  this  application  having  been  given 
to    proctor  for  caveator. 

It  is  thereupon,  on  this day  of ,  19.  .  .  .,  on 

motion  of  ,  of  counsel  with  proponents,  ordered,  ad- 
judged and  decreed  as  follows  {insert  findings  of  jury  as  in 
certificate  of  Judge  of  Circuit  Court). 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
instrument  oiTered  for  probate  as  aforesaid  be,  and  the  same 
hereby  is,  established  as  the  last  will  and  testament  of  the  said 
John  Doe,  deceased,  and  that  the  same  be  and  it  hereby  is 
admitted  to  probate.  And  it  is  further  ordered  that  letters 
testamentary  thereon  be  issued  to  A.  B.,  the  executor  in  said 
will  named. 

And  it  is  further  ordered  that  a  counsel   fee  of    

dollars  be  allowed  to    counsel  for  proponents,  and 

that  a  counsel  fee  of dollars  be  allowed  to , 

counsel  for  caveators,  and  that  said  counsel  fees  and  the  costs 


Probate  of  Wills.  973 

which  have  been  taxed  and  expenses  of  this  Htigation,  as  well 
on  the  part  of  the  caveators  as  on  the  part  of  the  proponents  of 
said  will,  shall  be  paid  by  the  executor  of  the  will  of  the  said 
John  Doe,  deceased,  out  of  his  said  estate. 

W.  P.  M., 
Judge. 


PROBATE  OF  LOST  WILLS. 

Form  32.     Petition  for   Probate  of  Will  Alleged   to   Have    Been 
Lost. 

[See  In  re  Cassidy.  (So  X.  J.  Eq..  163.  page  243.  supra,  j 

Essex  Couxtv  Surrog.\te"s  Court. 

In  the  matter  of  the  probate  of~^ 
the  alleged  lost  will  of  John  >On  I'etition  for  Probate. 
Doe,  deceased.  J 

Petition. 

To  F.  G.  S..  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  John  Jones  who  resides  at  Number , 

Street,  in  the of in  the  County  of 

and  State  of n^spectfully  shows  that : 

1.  On  the day  of 19 John  Doe,  late  of 

the  County  of  Essex,  deceased,  who  departed  this  life  on  the 

day  of ,  19.  .  . ,  made  and  executed  his  last  will 

and   testament   and   your   petitioner,   as   he   is   informed   and 
verily  Ijelieves,  was  therein  named  as   the  executor  thereof. 

2.  The  said  will  was  prepared  by  and  executed  in  the 
presence  of  A.  B.,  a  member  of  the  Bar  of  this  State ;  the  wit- 
nesses to  said  will  were  the  said  A.  B.,  and  C.  D.,  a  clerk  in 
the  office  of  the  said  A.  B.  .\fter  the  execution  of  said  will 
the  .same  was  placed  by  the  said  John  Doe  in  the  custody  of 
the  said  A.  B.,  and  1)y  him  ])laced  in  a  safe  in  his  office  with 
other  ]japcrs  of  a  similar  character. 

3.  Ujjon  the  death  of  the  said  John  Doe  application  was 
made  to  the  said  A.  B.  for  the  said  will,  to  the  end  that  the 
same  might  be  offered   for  orobatc  before  the   v^urrogate  of 


974  Probate  Law  and  Practice. 

the  County  of  Essex,  but  the  said  A.  B.,  after  a  diUgent,  care- 
ful and  exhaustive  search  for  the  paper  in  his  safe,  was  unable 
to  find  the  said  will.  He  did,  however,  find  among  the  files 
of  his  office  a  carbon  copy  of  said  will,  which  he  had  caused  to 
be  made  at  the  time  when  he  prepared  said  will. 

4.  The  will  so  executed  by  John  Doe  as  aforesaid  was  in 
the  following  terms : 

(Here  insert  contents  of  alleged  lost  mill). 

5.  The  names  of  the  heirs  and  next  of  kin  of  the  said  John 
Doe,  deceased,  so  far  as  the  same  are  known,  with  their 
residences,  or  post-office  addresses,  and  the  manner  or  degree  in 
which  they  severally  stand  related  to  said  John  Doe,  deceased, 
are  as  follows :    Jane  Doe,  the  widow  of   said  testator,  who 

resides  at  No , Street,  in  the of 

in  the  County  of   and  State  of    ;    William 

Doe,  Henry  Doe,  and  James  Doe,  children  of  said  John  Doe, 

who  reside  at  No , Street,  in  the of 

,  in  the  County  of   and  State  of   ; 

all  of  the  above-named  heirs  and  nearest  of  kin  of  the  said 
John  Doe,  deceased,  are  of  full  age,  with  the  exception  of 
James  Doe,  who  is  a  minor  of  the  age  of  sixteen  years. 

Your  petitioner  therefore  prays  that  this  court  may  establish 
that  the  said  John  Doe  did  in  his  lifetime  duly  execute  a  last 
will  and  testament  in  the  manner  and  form  hereinabove  set 
set  forth  which  has  been  lost ;,  and  that  the  same  be  admitted 
to  probate  as  the  last  will  and  testament  of  the  said  John  Doe. 
deceased. 

Dated  Newark,  N.  J., 

ic). .  JoTTx  Jones. 


State  oe  New  Jersey, 
County  of  Essex. 


John  Jones,  being  duly  sworn  upon  his  oath  according  to 
law,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  thereni 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 


Probate  of  Wills.  975 


>  John  Jones. 


Subscribed  and  sworn  to  this'^ 

day  of 

19.  .  .  .,  at  Newark,  N.  J.,  before 
nie, 

J.  C.  F., 
Notary  Public  of  X.  J.  ^ 

State  of  New  Jersey,  ) 
County  of  Essex.      j  ^^' 

A.  B.,  being  duly  sworn  upon  his  oath  according  to  law, 
deposes  and  says  as  follows  : 

I  am  a  member  of  the  Bar  of  the  State  of  New  Jersey,  having 

been  admitted  to  practice  therein  on  the day  of , 

19... 

I  was  well  acquainted  with  John  Doe  late  of  the  County 

of  Essex,  deceased,  having  known  him   for    vears. 

I  well  recollect  his  coming  to  my  office  on  or  about  the 

day  of ,  19.  .  ..  and  giving  me  directions  to  prepare 

his  last  will  and  testament.  I  recall  preparing  the  same  and 
directing  that  a  carbon  copy  of  the  same  be  made,  such  being 
the  practice  of  my  office. 

On  the day  of  19 John  Doe  came  to 

my  office  and  executed  the  said  paper  writing  by  signing  the 
same  in  the  presence  of  myself  and  C.  D.,  a  clerk  in  my  office, 
first  declaring  the  same  to  be  his  last  will  and  testament  and 
requesting  that  we  sign  the  same  as  witnesses.  John  Doe 
thereupon  signed  the  will  in  the  presence  of  myself  and  the 
said  C.  D.,  who  thereupon  signed  the  same  as  a  witness  in 
the  presence  of  the  said  John  Doe  and  myself,  and  I  then 
in  the  presence  of  the  said  John  Doe  and  the  said  A.  B..  also 
signed  said  will  as  a  witness  after  which  the  said  John  Doe 
requested  me  to  keep  the  said  will  for  him  and  I  thereupon 
placed  the  same  in  my  safe  with  other  papers  of  the  same 
character. 

After  the  death  of  John  Dc^c.  upon  inquiry  being  made  of  me 
in  regard  to  said  will,  I  was  unable  to  find  the  same  among 
the  papers  in  my  safe,  and  I  thereupon  caused  a  thorough 
and  exhaustive  search  to  be  made  for  it,  but  without  success. 
T  did,  however,  find  the  carbon  cojjv  of  the  said  will  which  1 
63 


9/6  Probate  Law  and  Practice. 

caused   to   be   made   at   the   time   of    the   preparation   of    the 
original. 

I  have  examined  the  foregoing  petition,  and  the^  will  therein 
set  forth  is  a  true  copy  of  the  aforesaid  carbon  copy  of  the  will 
of  the  said  John  Doe,  deceased,  now  in  my  possession  as  afore- 
said and  of  the  will- as  executed  by  the  said  John  Doe.  deceased. 

Subscribed  and  sworn  to  this"' 
day  of    , 

19  .  . .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  further  proceedings  are  the  same  as  in  case  of  a  caveat. 


A.  B. 


Form  33.     Order  of  Orphans'   Court  Admitting  to   Probate  Lost 
Will. 

[See  In  re  Cassidy.  80  \.  J.  Eq..  163,  page  243.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of^ 

the  alleged  lost  will   of   John  >  On  Petition  for  Probate. 
Doe,  deceased.  J 

Order  Admitting  Lost 
Will  to  Probate. 

This  matter  being  opened  to  the  court  by  X.   Y..  proctor 

for  the  petitioner,  and  it  appearing  that  on  the    day 

of  ,  19  ....,  John  Jones  presented  to  the  Surro- 
gate of  the  County  of  Essex  a  petition  alleging  that  John 
Doe,  of  the  said  County  of  Essex,  departed  this  Hfe  on  the 

day  of ,19  ...,  having  tirst  made  and  executed 

a  paper  writing  purporting  to  be  his  last  will  and  testament, 
which  was  inadvertently  lost,  and  praying  that  the  said  will 
as  set  up  in  said  petition  be  admitted  to  probate  as  the  last 
will  and  testament  of  the  said  John  Doe,  deceased.  And  cita- 
tions to  all  persons  concerned  having  been  duly  issued  by  the 


Probate  of  Wills.  '^)7'/ 

Surrogate  of  the  said  County  of  Essex  and  returned  duly 
served  and  the  matter  coming  on  to  be  heard,  and  the  court 
having  taken  testimony  and  examined  into  the  matter  and 
being  satisfied  that  the  said  John  Doe,  deceased,  did  on  the 
day  of ,  19  .  . . ,  execute  a  paper  writing  pur- 
porting to  be  his  last  will  and  testament ;  that  said  paper  writ- 
ing was  duly  executed  by  the  said  John  Doe,  deceased  as  and 
for  his  last  will  and  testament  in  compliance  with  the  terms  of 
the  statute  in  such  case  made  and  provided  ;  that  the  said 
John  Doe  at  the  time  of  executing  said  will  was  of  sound  and 
disposing  mind,  memory  and  understanding  and  not  under  un- 
due influence,  and  that  the  said  ])aper  writing  was,  after  the 
execution  thereof,  inadvertently  lost. 

It  is  thereupon  on  this    day  of    ,    19    ..., 

ORDERED,  ADJUDGED  AND  DECREED  that  the  Said  John  Doe  did  in 
his  lifetime  duly  execute  a  last  will  and  testament  in  manner 
and  "form  as  follows : 

{Here  insert  zvill  as  set  up  in  the  petition). 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
will  of  the  "said  John  Doe,  deceased,  as  hereinabove  set  forth, 
be  and  the  same  hereby  is  admitted  to  probate  and  that  letters 
testamentary  be  issued  upon  the  aforesaid  will  to  John  Jones, 
the  executor  therein  named,  upon  his  duly  qualifying  as  such. 

W.  P.  M., 

Judge. 


LETTERS  OF  ADMINISTRATION. 

I.      UPON    APPLICATION    OF    NEXT    OF    KIN. 

Form  34.     Petition  for  Letters  of  Administration. 

[See   Orphans'   Court   Act,   sections   J6   and   27,   i)a,uts   251    and    262, 
supra;   and  Orphans'  Court  Rule  i,  page  258,  supra.] 

KSSEX    CoUN'l\-    SuRK()C.A'l'i;"s    CoUKT. 

In   the   matter   oi   the   estate   of  1  On   Tetilion   for  Letters  of 
John  Doe,  deceased.  j      Administration. 

J'elitlon. 


97^^  Probate;  Law  and  Pkactice. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex : 

The  petition  of  WiUiam  Doe,  who  resides  at  Number , 

Street,  in  the of ,  in  the  County  of 

,  and  State  of ,  respectfully  shows  that : 

1.  Your  petitioner  is  one  of  the  sons  of  John  Doe,  late  of  the 

of ,  in  the  County  of  Essex  and  State  of  New 

Jersey,  who  died  on  the  ....   day  of   nineteen  hun- 
dred and ,  intestate,  leaving  him  surviving  as  his  only 

next  of  kin  and  heirs  at  law  three  children,  to  wit;    William 
Doe,  your  petitioner,  Richard  Doe  and  James  Doe,  all  of  whom 

reside  at,  and  whose  post-office  addresses  are  number   

Street,  in  the of ,  in  the  County  of 

and  State  of ;  that  all  of  the  aforesaid  next  of 

kin  are  of  full  age,  with  the  exception  of  James  Doe,  who  is 
a  minor  of  the  age  of years. 

2.  All  of  the  aforesaid  next  of  kin  entitled  to  administration 
upon  the  estate  of  the  said  intestate  have  duly  renounced  their 
right  to  administration  thereon,  and  have  requested  the  appoint- 
ment of  your  petitioner  ( or  due  notice  of  this  application  has 
been,  given  to  all  of  the  aforesaid  next  of  kin  of  the  said  in- 
testate entitled  to  adjninistration  upon  his  estate.) 

3.  The  said  John  Doe  died  possessed  of  personal  property 
the  value  whereof,  so  far  as  your  petitioner  can  ascertain,  will 
not  exceed  the  sum  of dollars. 

Your  petitioner  therefore  prays  that  letters  of  administration 
of  the  goods,  chattels,  rights  and  credits  of  whicli  the  said  John 
Doe  died  possessed  may  be  granted  to  him. 

Dated  Newark.  N.  J.,  „,  -^ 

•^  Wili.tam  Doe. 
19  ••• 


State  of  New  Jersey. 

'  y  ss 
CorxTv  OF  Essex. 


'■! 


William  Doe,  the  petitioner  in  the  foregoing  petition  named, 
being  duly  sworn  according  to  law  upon  his  oath,  deposes  and 
says  that  the  matters  and  things  therein  contained  are  true  to 
the  best  of  his  knowledge  and  belief.  Deponent  further  says 
that  the  value  of  the  estate  for  administration  of  which  this 


Letters  of  Administration. 


979 


npplicatioii  is  made  will  not  exceed  in  value  the  sum  of 
Dollars. 


Subscribed  and  sworn  to  this"^ 

day  of    , 

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary   Public  of  N.    J. 


> 


William  Doe. 


Form  35.     Renunciation  of  Right  to  Administration  and  Request 
for  Appointment  of  Administrator. 
[See  Orplians'  Court  Rule  2,  page  25S,  supra.] 

Essex  County  Surrogate's  Couki".. 

In  the  matter  of   the  esta 
lohn  Doe,  deceased. 


ue  of  I 

>  On 

3     Arl 


Petition  for  Letters  of 
Administration. 


Kciiitiu'iation  of  Xc.vt  of  Kin. 

I,  Richard  Doe,  one  of  the  children  of  John  Doe,  late  of 

the of ,  in  the  County  of and  State  of 

,  who  died  on  the day  of I9-  •  • ,  in- 
testate, hereby  renounce  all'  right  and  claim  to  administration 
of  the  goods  and  chattels  of  the  said  John  Doe,  and  request 
that  administration  upon  the  said  estate  be  granted  to  William 
Doe,  the  petitioner  therefor. 

Dated  Newark,  N.  J.,  Richard  Doe. 
, ,  i9---. 


Form  36.     Notice  of  Application  for  Letters  of  Administration. 
[See  (Orphans'  Court  Rules  2,  page  258,  supra,  and  4.  page  260,  supra.] 

Essex  Countn-  Surrogate's  Coitrt. 

In   the   matter  of   the   estate   of  1   On  Petition  for  J^etters  of 

j  Administration. 

Notice  of  AppUcat'wii. 


John  Doe,  deceased. 


Probate  Law  and  Practice. 

To  Richard  Doe,  next  of  kin  of  John  Doe,  deceased: 

You  are  hereby  notified  that  on ,  the day 

of ,  19  .  . .,  at  ID  a.  m.,  I  shall  apply  to  the  Surrogate  of 

the  County  of  Essex,  at  his  office  in  the  Court  House,  in  the 
City  of  Newark,  for  letters  of  administration  of  the  goods, 

chattels  and  credits  of  John  Doe,  late  of  the of 

in  the  County  of ,  and  State  of ,  who  died  on  of 

about  the day  of ,  19  .  .  .,  intestate. 

Dated  Newark,  N.  T-,  t  t^ 

James  Doe. 

, ,  19  ■"> 

For  form  of  proof  of  service  see  Form  38. 


Form  37.     Order  Directing  Service  of  Notice  Upon  Non-Resident 
Next  of  Kin. 

[See  Orphans'  Court  Rule  4.  page  260,  supra.] 

Essex  County  Surrogate's  Court. 


In  the  matter  of  the  estate 

John  Doe,  deceased.  |  "",   .7^-  "7    ^• 

•>  '  -'of  Admmistration. 


IOn  Application  for  Letters 


Order  Directing  Service 
of  Notice. 

William  Doe  having  duly  presented  his  application  for  letters 
of  administration  upon  the  estate  of  John  Doe,  late  of  the 
County  of  Essex,  deceased  and  it  appearing  therefrom  that 
William  Doe,  a  brother  of  the  said  intestate,  resides  at  Num- 
ber   , Street,  in  the  City  of  Chicago  and  State  of 

Illinois  and  that   Mary   Williams,   a   sister   of   said   intestate, 

resides  at  Number   .  .  .  . ,   Street,  in  the  City  of  St. 

Louis  and  State  of  Missouri. 

It  is  on  this    day  of    ,  one  thousand  nine 

hundred  and ,  ordered  that days'  notice  of  the 

aforesaid  application  for  letters  of  administration  be  given 
the  above-named  persons  entitled  thereto,  which  notice  may 
be  served  liy  mailing  a  true  copy  thereof  addressed  to  each 


LrrxEKs  OF  Admix i>TKATiO-\.  9S1 

ot    the   aforesaid   persons,   at   their   aforesaid    respective   ad- 
dresses, with  the  i)Ostage  thereon  prepaid. 

F.  G.  S.,  Jr.. 
Surrogate. 
When  any  of  the  next  of  kin  are  non-residents  Orphans' 
Court  Rule  9  provides  that  they  shall  be  given  such  notice  of 
the  application   for  admini.stration  as  the   Surrogate  shall  by 
order  direct. 


Form  38.     Proof  of  Service  of  Notice,  Etc. 

[See  Orphans'  Court  Rule  4.  page  260,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  estate  of  | 
John  Doe,  deceased.  j 

Proof  of  Service. 
State  of  New  Jersey,  ) 

S     CO 

County  of  Essex,      j 

James  Doe,  being  duly  sworn  upon  his  oath  according  to  law, 

deposes  and  says  that  on  the day  of ' .  . ,  19  .  .  . ,  he 

served  the  foregoing  notice  upon  Richard  Doe,  to  whom  it  is 
addressed,  by  delivering  to  him  personally  a  true  copv  thereof 

{or  by  leaving  a  true  copy  thereof  at  Number , 

Street,  in  the  City  of ,  his  usual  residence  or  place  of 

abode,  with  a  person  of  the  age  of  fourteen  years  and  up- 
zvards). 

Subscribed  and  sworn  to  this' 
day  of    

19.  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


James  Doe. 


Form  39.      Proof  of   Mailing   Notice. 

[See  Orphans'  Court  I<ule  4,  page  260,  sui)ra.] 

State  of  New  Jersey,  ") 
County  of  Essex.      j  "^■^" 

James  Doe,  being  duly  sworn  u])on  his  oath,  according  to 
law,  deposes  and  says  that  on  the    day  of    


982  pRoiiATK  -Law  and  Practice. 

one  thousand  nine  hundred  and    ,  he  deposited  in  the 

United  States  mail,  in  the  City  of  Newark,  in  the  County  of 
Essex,  aforesaid,  a  copy  of  the   foregoing  notice,  addressed 

to  Jane  Doe,  at  No ,  Street,  in  the   of 

,  in  the  County  of and  State  of 

Subscribed  and  sworn  to  this"^ 

'J^^';\;-;-ry'l  james  doe. 

19.  .  .  .,  at  Newark,  N.  J.,  beiore 
mc, 

J.  C.  F., 

Notary  PubHc  of  N.  J. 


Form  40.     Order  Granting  Letters  of  Administration. 

[See  Orphans'  Court  Act,  section  27,  page  262,  supra,  and  Orphans' 
Court  Rule  2,  page  258,  supra.] 

Essex  Countv  Surrogate's  Court. 

In   the  matter  of   tlie   estate   of  )  On  Petition  for  Letters  of 
John  Doe,  deceased.  j  Administration. 

Petition. 

It  appearing  by  the  petition  of  Wilham  Doe,  of  the 

of ,  in  the  County  of and  State  of , 

that  John  Doe,  late  of  the  County  of  Essex  aforesaid,  died  on 

the    day   of    ,    19.  .  . ,   intestate,   possessed   of 

goods  and  chattels,  rights  and  credits  of  the  value  of 

dollars,  and  that  all  of  the  next  of  kin  and  persons  entitled  to 
administration  upon  the  estate  of  the  said  intestate  have  duly 
renounced  their  said  right  of  administration  and  requested  that 
letters  of  administration  upon  the  estate  of  the  said  John  Doe 
be  granted  to  the  petitioner  herein  (or  that  due  notice  of  this 
application  has  been  given  to  all  of  the  next  of  kin  and  persons 
entitled  to  administration  upon  the  estate  of  the  said  intestate). 

It  is  thereupon,  on  this day  of ,  one  thou- 
sand, nine  hundred  and ,  ordered,  adjudged  and  decreed 

that  letters  of  administration  upon  the  goods  and  chattels, 
rights  and  credits  of  the  said  John  Doe  be  granted  to  the  said 


Letters  of  Administration.  983 

William  Doe,  upon  his  giving  bond  to  the  Ordinary  in  the  sum 

of    dollars,  conditioned  according  to  law.  and  with 

sureties  to  be  approved  by  the  Surrogate. 

F.  G.  S..  Jr.. 
Surrogate. 
For  form  of  administration  1)ond.  see  Form  42. 


Form  41.      Oath   of   Administrator. 


Statk  oi-   Xew  Jersey 
County  of  Essex 


^'''  \  ss. 


\\illiam  Doe.  the  administrator  of  the  estate  of  John  Doe, 
deceased,  being  duly  sworn  upon  his  oath  according  to  law, 
deposes  and  says  that  he  will  well  and  truly  administer  all 
and  singular  the  goods  and  chattels,  rights  and  credits,  which 
were  of  the  said  John  Doe.  deceased,  at  the  time  of  his  death, 
that  have  or  shall  come  to  his  possession  or  knowledge,  or  to 
the  possession  of  any  other  person  or  persons  for  his  use ; 
and  that  he  will  make  and  exhibit  into  the  Surrogate's  Office 
of  the  County  of  Essex  a  true  and  perfect  inventory  of  all 
and  singular  the  said  goods  and  chattels,  rights  and  credits, 
and  render  a  true  and  just  account  of  his  administration  as 

required  by  law,  and  that  the  said  John  Doe  died  on  the , 

day  of ,  19  ... 


Subscribed  and  sworn  to  this 

day  of    , 

19.  .  .  .,  at  Newark,  N.  J.,  before 
me, 

F.  G.  S.,  Jr., 
Surrogate. 
This  affidavit  must  be  taken  before  the  vSurrorate 


W1IJ.IA.M  Doi:. 


Form  42.     Administrator's  Bond. 

[See  Orijlians'  Cuiirt  Act,  section  46,  page  307,  supra.] 

Know  ai.k  men  hv  these  I'kesents,  That  We,  A.  B.,  C.  D. 
and  E.  F.,  all  of  tlie of ,  in  the  Countv  of 


984  Probate  Law  and  Pkactick. 

Essex  and  State  of  New  Jersey,  are  held  and  firmly  bound  unto 

the  Ordhiary  of  the  State  of  New  Jersey,  in  the  sum  of 

Dollars,  lawful  money  of  the  United  States,  to  be  paid  to  the 
said  Ordinary  as  aforesaid,  his  successors  and  assigns,  to 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

One  thousand  Nine  Hundred  and 

'  The  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  A.  B.,  administrator  of  all  and  singular  the 
goods,  chattels  and  credits  of  X.  Y.,  deceased,  do  make  or 
cause  to  be  made,  a  true  and  perfect  inventory  of  all  and  sin- 
gular the  goods,  chattels  and  credits  of  the  said  deceased, 
which  have  or  shall  come  to  the  hands,  possession  or  knowl- 
edge of  the  said  A.  B.,  or  into  the  hands  or  possession  of  any 
other  person  or  persons  for  the  said  A.  B.,  and  the  same  so 
made  do  exhibit,  or  cause  to  be  exhibited  into  the  registry  of 
the  Prerogative  Court  in  the  Secretary's  Office  of  this  State, 
or  into  the  Surrogate's  Office  of  the  County  of  Essex,  at  or  be- 
fore the  expiration  of  three  calendar  months  from  the  date 
of  the  above-written  obligation,  and  the  same  goods,  chattels 
and  credits,  and  all  other  goods,  chattels  and  credits  of  the  said 

deceased  at  the  time  of death,  which  at  any  time  after 

shall  come  into  the  hands  or  possession  of  said  A.  B.,  or 
into  the  hands  or  possession  of  any  other  person  or  persons 
for  the  said  A.  B.,  do  well  and  truly  administer  according  to 
law  ;  and  further  do  make,  or  cause  to  be  made,  a  just  and  true 

account   of    administration    within   twelve   calendar 

months  from  the  date  of  the  above-written  obligation  ;  and  all 
the  rest  and  residue  of  the  said  goods,  chattels  and  credits, 
which  shall  be  found  remaining  upon  the  account  of  the  said 
administration,  the  same  being  first  examined  and  allowed  by 
the  judges  of  the  Orphans'  Court  of  the  county,  or  other  com- 
petent authority,  shall  deliver  and  pay  unto  such  person  or 
persons  respectively,  as  is,  are  or  shall  by  law  be  entitled  to  re- 
ceive the  same.  And  if  it  shall  hereafter  appear  that  any  last 
will  and  testament  was  made  by  the  said  deceased  and  the  exec- 
utor or  executors  therein  named,  or  any  other  person  or  per- 


Letters  of  Administration.  985 

sons,  do  exhibit  the  same  into  the  said  Prerogative  Court  or 

the  Surrogate's  office  of  the  County  of ,  making  request 

to  have  it  allowed  and  approved,  if  the  said  A.  B.  being  there- 
unto required,  do  render  and  deliver  the  said  letters  of  admin- 
istration (approbation  of  such  testament  being  first  had  and 
made)  to  the  said  court,  then  the  above  obligation  to  be  void 
and  of  none  effect,  or  else  to  remain  in  full  force  and  virtue. 


Signed,  sealed  and  delivered  in      ! 
the  presence  of :  [ 

Add  justification  of  sureties  as  in  Form  7. 


A.  B.  [L.  s.] 
CD.  [l.  s.] 
E.  F.  [L.  s.] 


Form  43.     Letters  of  Administration. 

[See  Orphans'  Court  Act.  section  Si.  3  Coinp.  Stat.,  page  3825.] 

Essex  County  Surrogate's  Court. 
State  oe  New  Jersey, 


'! 


County  of  Essex. 

I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex,  do  certify 

that  on  the day  of   ,  19.  .  .,  administration  of 

the   goods   and   chattels,    rights    and   credits,    which    were   of 

.  .  .  .,  late  of  the  County  of   ,  who  died  intestate,  was 

granted  by  me  to   of  the   of    ,  in  the 

County  of and  State  of  New  Jersey  who  is  duly  au- 
thorized to  administer  the  same  agreeably  to  law. 

Witness  my  hand  and  seal  of  office  the    day  of 

,  A.  D.,  Nineteen  Hundred  and 

F.  G.  S.,  Jr., 
Surrogate. 


II.     WHEN  NEXT  OF  KIN  NEGLECT  TO  APPLY. 

Form  44.  Application  for  Letters  of  Administration  in  Case 
Persons  Entitled  Neglect  to  Apply,  or  in  Case  There  be 
no    Persons    Entitled. 

[Sec  section  28  of  Orphans'  Court  Act,  page  260,  supra,  and  Orphans' 
Court  Rules  i,  3.  4  and  5,  pages  258  to  261,  supra.] 

Essex  County  Surrogate's  Court. 


986  Probate  Law  and  Practice. 

In   the  matter  of   the   estate   of  )  ^     „    ..        r      ^    ,  r 

^  ,      ^        ,  ,  >  On  Petition  for  Letters  of 

John  Doe,  deceased.  I    »  1     •   • 

^  Administration. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  X.  Y.,  who  resides  at  Number  .  . .  ., 

Street,  in  the   of    ....;...,  in  the  County  of    

and  State  of    ,  respectfully  shows  that : 

1.  Your  petitioner  is  a  creditor  of  John  Doe,  late  of  the 
of ,  in  the  County  of  Essex,  and  State  of  New 

'Jersey,   who   died   intestate   on   or   about   the    day   of 

,  19.  .  .,  possessed  of  goods,  chattels,  rights  and  credits 

to  the  value  of   dollars,  as  nearly  as  your  petitioner 

can  ascertain. 

2.  The  said  John  Doe  left  him  surviving  as  his  only  next 
of  kin  and  heirs  at  law,  a  widow,  Jane  Doe,  who  resides  at 

and  whose  post-office  address  is  number , Street. 

in  the of ,  in  the  County  of and  State 

of ,  and  two  children,  to  wit :   William  Doe  and  Rich- 
ard Doe,  both  of  whom  reside  at  and  whose  post-office  addresses 

are  number  .  .  .  . , Street,  in  the of , 

in  the  County  of and  State  of   ;  all  of  the 

above-named  next  of  kin  of  said  intestate  are  of  full  age,  with 

the  exception  of  Richard  Doe,-  who  is  a  minor   years 

of  age. 

3.  None  of  the  aforesaid  next  of  kin  and  heirs  at  law  of  the 
said  intestate  have  applied  for  administration  upon  his  estate, 
although  more  than  forty  days  have  elapsed  since  the  death 
of  said  John  Doe,  {or  the  said  JoJui  Doe  left  no  relations 
justly  entitled  to  the  administration  of  his  personal  estate, 
so  far  as  your  petitioner  can  ascertain,  after  i}iqiiiry  pursuant 
to  the  rules  of  this  court,  as  by  an  affidavit  hereunto  annexed 
ivill  more  fully  and  at  large  appear.) 

4.  At  the  time  of  his  death,  the  said  John  Doe  was  indebted 

to  your  petitioner  in  the  sum  of dollars  upon  a  claim 

which,  by  the  laws  of  this  State,  survived  against  the  personal 
representatives  of  the  said  John  Doe. 


Letters  of  Admixistkation,  987 

Your  petitioner  therefore  prays  that  letters  of  administra- 
tion upon  the  estate  of  the  said  John  Doe  may  l)e  granted  to 
him,  or  to  some  other  fit  person. 

Dated  Newark.  X.  J.  X.  Y. 
,  19   ••• 


E\v  Jersey,  ) 
V  Essex.      j 


State  of  Xew 
County  or  ^ 


X.  Y.,  being  duly  sworn  upon  his  oath  according  to  law. 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  estate  for  adminis- 
tration of  which  this  application  is  made  will  not  exceed  in 
value  the  sum  of dollars. 


X.  Y. 


Subscribed  and  sworn  to  this 

day  of    , 

19.  . .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F.,  '      . 

Notary  Public  of  N.  J. 

P'or  i)etition  for  letters  of  administration  with  the  will 
annexed  in  case  the  executor  neglects  to-  prove  will,  or  apply 
for  letters  testamentary,  see  Form  12.  for  notice  of  application 
see  Form  46  for  proof  of  service  Form  38. 


Form  45.     Proof  of  Inquiry  for  Absent  Next  of  Kin. 

I  Scr  Drijlians'  Cmirl  Rule  16,  page  891,  supra.] 

Essex  County  St.RkooArE's  Court. 

In    the   matter   of   the   estate   of  ")  On  Application  for  Letters 
John  Doe,  deceased.  j  of  .\dministration. 

Proof  of  Inqiilrx   for  .Ihsriit 
Next  of  Kill. 


g<S8  Probate  Law  and  Practice. 

State  oe  New  Jersey, 


County  of  Essex. 


'  i  .y.?. 


A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  as  follows : 

I  am  the  proctor  for  petitioner  and  the  person  actually 
entrusted  with  the  conduct  and  management  of  this  cause. 

John  Doe.  the  above-named  intestate,  was,  in  his  lifetime, 
a  mechanic,  employed  in  the  machine  shop  conducted  by  X.  Y., 

at  Number  .  .  .  . , Street,  in  the of   , 

in  the  County  of  Essex  and  State  of  New  Jersey.    He  boarded 

at  Number  .  .  .  ., Street,  in  the  City  of  Newark,  for 

a  period  of   years  and  was  found  dead  in  his  bed  on 

the   day  of   ,  19.  .  . 

I  have  examined  all  of  the  personal  effects,  of  the  said 
John  Doe,  particularly  letters  belonging  to  him,  for  the  purpose 
of  ascertaining  the  names  and  addresses  of  any  of  his  next  of 
kin,  and  found  several  letters  from  one  Jane  Doe,  dated  Lon- 
don, England,  who  appears  to  have  been  his  sister,  the  last  of 

which  letters  was  dated  on  the day  of ,  19.  .  .  . 

I  also  made  inquiry  from  the  persons  with  whom  the  said 
John  Doe  boarded,  and  they  told  me  that  the  said  John  Doe 
had  no  relatives,  so  far  as  they  knew,  nor  had  he  in  recent 
years  received  any  letters  from  England  to  their  knowledge. 
I  also  made  inquiry   from  X.  Y.,  in  whose  employ  the  said 

John  Doe  had  been  for  many  years,  as  well  as  from 

and with  whom  he  was  on  intimate  terms,  and  thev 

all  informed  me  that  they  had  never  heard  the  said  John 
Doe  speak  of  any  relatives.  So  far  as  I  am  able  to  ascertain, 
the  said  John  Doe  was  not  a  member  of  any  fraternal  or 
other  organization. 

On  the day  of ,1  addressed  a  letter  to  Jane 

Doe,  London,  England,  addressed  in  her  name  at  London, 
England,  advising  her  of  the  death  of  John  Doe,  and  asking  as 
to  her  relationship  to  him,  stating  that  application  for  betters 
of  administration  was  about  to  be  made  to  the  Surrogate  of 
the  County  of  Essex  aforesaid,  and  that  I  was  writing  her  for 
the  purpose  of  learning  the  names  of  his  next  of  kin  and 
persons  entitled  to  administer  upon  his  said  estate,  to  which 


*  Letters  OF  Administration.  989 

letter  I  have,  liowever,  received  no  reply,  and  which  letter  was 
returned  to  nie  throug^h  the  jiost  office  with  an  endorsement 
thereon  "not  found." 

Suhscrihed  and  sworn  to  this' 

^^y  of •  ^  A.  B. 

19  .  .  .,  at  Newark,  N.  J.,  hefore 
me, 

J.  C.  F., 

Notary  Public  of  N.  J- 

This  inquiry  is  necessary  in  all  cases  where  the  petition  for 
letters  of  administration  alleges  thai  the  residence  of  any  or 
all  of  the  next  of  kin  is  unknown. 


Form  46.     Notice  of  Application  for   Letters  of  Administration 
Where  Next  of  Kin  Have  Neglected  to  Apply. 

[See  Orphans'  Court  Rule  4.  page  260,  supra.] 

Essex  County  Surrogate".-.  Court. 

In   the  matter  of   the   estate   of  )  On  Petition  for  Letters  of 
John  Doe,  deceased.  j  Administration. 

Notice. 
To  Jane  Doe,  widow,  and  William  Doe  and  Richard  Doc,  next 
of  kin  and  heirs  at  law  of  John  Doe,  deceased. 
You  are  hereby  notified  that  I,  X.  Y.,  a  creditor  of  John 

Doe,  late  of  the  County  of  Essex,  deceased,  will,  on  the 

day  of ,  19.  ... ,  make  application  to  the  Surrogate  of 

the  County  of  Essex  for  the  appointment  of  some  fit  person 
as  administrator  of  the  estate  of  the  said  John  Doc,  deceased, 
you  having  neglected  for  more  than  forty  days  from  the  death 
of  the  said  John  Doe,  deceased,  to  make  api)lication  therefor. 

Dated  Newark,  N.  J.,  X.  Y. 
- ,  19--- 

l'ro(;f  of  ser\it-e  of  this  notice  sliould  be  fded  with  the  Surro- 
gate.    For  form  of  ])roof  of  service  see  Form  38. 


990  Probate  Law  and  Practici;. 

Form  47.     Order  Granting  Administration  in  Case  Next  of  Kin 
Neglect  to  Apply. 

[See  section  28  of  Orphans'  Court  Act,  page  260,  supra,  and  Orphans' 
Court  Rules  3  and  4,  page  260,  supra.] 

Essex  County  Surrogate's  Court. 


"•! 


In   the  matter  of   the   estate   w.  ,  ^     -^    .  r      j    ..  r 

V  On  Petition  for  Letters  of 

John  Doe,  deceased.  1    ^  j    ■   ■  ^    ^• 

'  Administration. 

Order. 


Application  having  lieen  made  by  X.  Y.,  one  of  the  creditors 

of  the  estate  of  John  Doe,  late  of  the of   ,  in 

the  County  of  Essex,  and  State  of  New  Jersey,  deceased,  for 
the  appointment  of  some  fit  person  as  administrator  of  the 
estate  of  the  said  John  Doe,  deceased,  and  it  appearing  that 

the  said  John  Doe  died  intestate  at ,  on  the day 

of 19-  •  -,  leaving  him  surviving  as  his  only  next  of 

kin  aud  heirs  at  law,  a  widow,  Jane  Doe,  and  two  children. 
William  Doe  and  Richard  Doe,  and  that  none  of  the  said 
next  of  kin  of  said  intestate  have  claimed  administration  upon 
the  estate  of  the  said  John  Doe,  deceased,  although  more 
than  forty  days  have  elapsed  since  his  death,  and  it  further 
appearing  that  due  notice  of  the  application  has  been  given  to 
the  said  widow  and  next  of  kin  and  heirs  at  law  of  said  in- 
testate, and  the  Surrogate  haviyg  inquired  into  the  circum- 
stances of  the  matter  and  being  satisfied  that  C.  D.  is  a  fit 
person  to  administer  upon  the  estate  of  the  said  intestate. 

It  is  thereupon  on  this day  of ,  19.  .  • ,  ordered. 

adjudged  and  decreed  that  letters  of  administration  upon  the 
goods,  chattels,  rights  and  credits  of  the  said  John  Doe,  de- 
ceased,  be   granted   to   the    said   C.    D.,   upon   the   giving  by 

him  of  a  bond  in  the  sum  of   . dollars,  with  sureties 

to  be  approved  by  the  said  Surrogate,  and  upon  his  duly  quali- 
fving  as  such. 

F.  O.  S.,  Jr., 
Surrogate. 

For  form  of  bond  see  Form  42. 


Letters  of  Administration'.  991 

III.     SUBSTITUTIONARY  ADMINISTRATION. 

Form    48.  Petition    for    Letters    of    Substitutionary    Administra- 
tion. 

[See  2  Comp.  Stat.,  p.  2259,  sec.  2-a  and  2-b,  pages  275  and  276,  supra, 
and  Orphans'  Court  Rules  i,  2  and  5,  pages  258  and  259.  supra.] 

Essex  County  Surrogate's  Court. 

In   the  matter  of  the   estate   of  )  On  Petition  for  Letters  of 
John  Doe,  deceased.  j  Substitutionary      Adminis- 

tration. 

Petition. 
To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  WilHam  Doe.  who  resides  at  Number 

Street,  in  the of ,  in  the  County  of 

,  and  State  of ,  respectfully  shows  that : 

1.  John  Doe,  late  of  the of  in  the  Coimty 

of  Essex  and  State  of  New  Jersey,  died  on  the day  of 

,  19 ... ,  intestate,  and  on  the day  of 

19,..,  X.  Y.,  was  duly  appointed  by  the  Surrogate  of  the 
County  of  Essex  administrator  of  the  goods,  chattels  and 
credits  of  said  intestate. 

2.  The  said  X.  Y.,  administrator  as  aforesaid,  on  the 

day  of ,  19.  . .  .,  after  taking  upon  himself  the  burden 

of  said  administration,  died   (or  was  removed  by   ), 

leaving  certain  property  and  assets  of  the  estate  of  the  said 
John   Doe,   unadministered,   the  value   whereof   does   not,   as 

nearly  as  your  petitioner  can  ascertain,  exceed  the  sum  of 

dollars. 

3.  The  names  of  the  heirs  and  next  of  kin  of  the  said  in- 
testate, so  far  as  the  same  are  known  to  your  petitioner  with 
their  residences  or  post-office  addresses,  and  the  manner  or 
degree  in  which  they  severally  stand  related  to  him  are  as 
follows,  to  wit. ;  William  Doe,  your  petitioner,  Richard  Doe 
and  James  Doe,  children  of  said  intestate,  all  of  whom  arc  of 
full  age,  except  James  Doe,  who  is  a  minor  of  the  age  of 
sixteen  years,   the   residence  and  post-office  addresses  of   all 

the  foregoing  being  Number   ,   Street,  in  the 

of ,  in  the  County  of   and  State  of 

64 


992  Probate  Law  and  Practice. 

4.  All  of  the  persons  entitled  to  administration  upon  the 
estate  of  said  intestate  have  duly  renounced  their  said  right  of 
administration  and  requested  the  appointment  of  your  pe- 
titioner {or  due  notice  of  this  application  has  been  given  to 
all  of  the  next  of  kin,  or  parties  by  law  entitled  to  adminis- 
tration upon  the  estate  of  tlie  said  intestate). 

Your  petitioner  therefore  prays  that  letters  of  substitution- 
ary administration  upon  the  goods,  chattels  and  credits  of  the 
said  intestate  be  granted  to  him. 

Dated  Newark,  N.  J.,  ^^^^^^^^  ^^^ 
, i9--- 

State  oe  New  Tersey,  ) 

>  ss. 
County  of  Essex.      j 

William  Doe,  being  dul)'  sworn  according  to  law,  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  estate  for  administra- 
tion of  which  this  application  is  made  will  not  exceed  in  value 
the  sum  of dollars. 

Subscribed  and  sworn  to"^ 

before   me    this    day   of  S-  William  DoE. 

,  19. .  .,  at  Newark,  N.  J- J 

J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  notice  of  ajiplication  for  letters  of  adminis- 
tration, see  Form  36.  For  form  of  renunciation  of  right  to 
administer,  see  Form  35,  for  proof  of  service  of  notice  Form 
38. 


Form  49.     Order  Appointing  Substitutionary  Administrator. 

[Sec  2  Comp.  Stat.,  p.  2259,  sees.  2-a  and  2-b,  pages  275  and  276,  supra, 
and  Orphans'  Court  Rules  i,  2  and  5.  pages  258  and  259.  supra.] 

Essex  County  Surrogate's  Court. 
In   the  matter  of   the   estate   of  ")  On  Petition  for  Letters  of 
John  Doe,  deceased.  J  Substitutionary      Adminis- 

tration. 
Order  Appointing  Substitu- 
tionary Administrator. 


Letters  of  Administration.  993, 

It  appearing  from  the  petition  of  A.  B.,  of  the of 

,  in  the  County  of  Essex  and  State  of  New  jersey. 

that  John  Doe,  late  of  the  County  of   Essex,  deceased,  (hed 

on  the day  of   Nineteen  Hundred  and   .  .  .  . , 

intestate,  and  that  X.  Y.  was  thereafter  chily  apjxnnted  1)}" 
the  Surrogate  of  the  said  County  of  Essex  as  administrator 
of  the  goods,  chattels  and  credits  of  said  intestate.  And  it 
further  appearing  that  the  administrator  so  ap])()inted  as 
aforesaid,  after  ta-king  upon  himself  the  hurden  of  said  ad- 
ministration, departed  this  life  leaving  certain  property  and 
assets  of  the  estate  of  the  said  John  Doe  unadministered,  which 
said  unadministered  estate  does  not  exceed  in  value  the  sum: 
of    dollars. 

Aiid  it  further  appearing  that  all  of  the  next  of  kin  en- 
titled to  administration  upon  said  estate  have  renounced  in 
writing  their  riglit  to  administration  and  requested  that  sub- 
stitutionary admiftistration  upon  the  same  be  granted  to  said 
petitioner  ( or  that  due  notice  of  this  application  has  been 
given  to  tJie  next  of  kin  or  parties  by  lazv  entitled  to  adminis- 
tration upon  the  estate  of  the  said  intestate). 

It  is  thereupon  on  this  ....  day  of ,  Nineteen  hun- 
dred and  ,  ordered  that  letters  of  substitutionary  ad- 
ministration upon  the  goods,  chattels  and  credits  of  said  intes- 
tate be  granted  to  the  said  A.  B.  upon  his  entering  into  bond 

to  the  Ordinary  in  the  sum  of Dollars,  with  sureties 

to  be  approved  by  the  Surrogate. 

F.   G.    S.,   Jr., 

Surrogate. 
For  form  of  bond  see  Form  42. 


Form  50.     Oath  of  Substitutionary  Administrator. 

State  of  New  Jersey,  ) 

CouNTv  OF  Essex.      j 

A.  B.,  the  substitutionary  administrator  of  the  estate  of  Jolm 
Doe,  deceased,  being  duly  sworn  according  to  law  upon  his 
oath,  says  that  he  will  well  and  truly  administer  all  and  singular 


994  Probate  Law  and  Practice. 

the  goods  and  chattels,  rights  and  credits  which  were  of  the 
said  deceased  at  the  time  of  his  death,  and  remain  unadmin- 
istered,  that  have  or  shall  come  to  his  possession  or  knowledge, 
or  to  the  possession  of  any  other  person  or  j)ersons  for  his  use, 
and  that  he  will  make  and  exhihit  into  the  Surrogate's  office 
of  the  County  of  Essex  a  true  and  perfect  inventory  of  all  and 
singular  the  said  goods  and  chattels,  rights  and  credits,  and 
render  a  just  and  true  account  of  his  administration  when 
thereunto  lawfully  required. 


1 


>-  A.  B. 


Subscribed  and  sworn  to  this 

day  of    ,  (^ 

19  .  .  . ,  at  Newark,  N.  J.,  before 
me. 

F.  G.  S., 
Surrogate. 

This  affidavit  can  only  be  taken  before  the*Surrogate. 


Form  51.    Letters  of  Substitutionary  Administration. 

[See  2  Comp.  Stat.,  page  2259,  sections  2-a  and  2-b,  pages  275  and  276. 
supra,  and  Orphans'  Court  Rules  i.  2  and  5,  pages  258  and  259.  supra, 
and  Orphans'  Court  Rule  10,  page  889,  supra.] 

Essex  County  Surrogate's  Court. 


State  of  New  Jersey, 
County  of  Essex. 


5EY,  ) 


To  ALE  TO  WHOM   THESE  PRESENTS  SHALL  COME,  GREETING: 

Whereas,  A.  B.,  late  of  the  County  of  Essex,  in  the  State 
of  New  Jersey,  departed  this  life  intestate,  of  whose  goods, 
chattels  and  credits  administration  was  duly  committed  to  C. 
D. ;  and  the  said  C.  D.,  after  taking  upon  himself  the  burden 
of  said  administration,  departed  this  life  (or  icas  removed  or 

discharged  from  the  said  office  by   .  .  . as  the  case  may 

be). 

Therefore,  I,'F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex, 
do  in  the  place  and  stead  of  the  said  C.  D.,  hereby  substitute 
and  appoint  E.  F.,  administrator  of  all  and  singular  the  goods 
■chattels  and  credits  of  said  intestate,  who  is  dulv  authorized  as 


Letters  of  Administration.  995 

such  substituted  administrator  tu  adiuiiiistcr  the  same  agree- 
ably to  law. 

In  Witness  Whereof,  1  have  hereunto  set  mv  liand 

[1..  s.]     and  seal  of  office,  this day  of , 

A.  D.,  Nineteen  Hundred  and    


SUBSTITUTIONARY  ADMINISTRATION  C.  T.  A. 

Form  52.     Petition  for  Letters  of  Substitutionary  Administration 
With  the  Will  Annexed. 

[See   2    Comp.    Stat.,    page   2259,    section    2b.    page    275,    supra,    and 
Orphans'  Court  Rules  i,  2,  and  5,  pages  258  and  259,  supra.] 

Essex  County  Surrogate's  Court. 

On  Petition  for  Letters  of 
Substitutionary      Adminis- 


In  the  matter  of   the   estate   of 
John  Doe,  deceased. 


tration  With  the  Will  An- 
nexed. 

Petition. 


To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex : 

The  petition  of  William  Doe  who  resides  at  Number , 

Street,  in  the of   in  the  County 

of    and  vState  of   respectfully  shows  that : 

1.  John  Doe,  late  of  the of in  the  Countv 

of  Essex  and  State  of  New  Jersey,  died  on  the day  of 

,  19.  .  .,  leaving  a  last  will  and  testament  in  and  by 

w^hich  he  appointed  X.  Y.,  of  the of ,  in  the 

County  of and  State  of   ,  the  sole  executor 

thereof;    the  said"will  was  duly  proved  before  the  Surrogate 

of  the  said  County  of  Essex  on  the day  of   

19.  .  .,  and  by  him  duly  recorded  in  his  oiifice,  and  letters  testa- 
mentary thereon  issued  to  the  said  X.  Y.,  as  such  executor. 

2.  'J'he  said  X.  Y.,  after  taking  upon  himself  the  Inirdcn  of 
administration,  died  {or  7cas  removed,  or  as  the  case  ina\  be), 

on  the day  of ,  19.  .  . ,  leaving  certain  property 

and  assets  of  the  estate  of  the  said  John  Doe  unadministered. 


996  Probate  Law  and  Practice. 

the  value  whereof  does  not  exceed,  as  your  petitioner  is  in- 
formed and  verily  believes,  the  sum  of dollars. 

3.  The  names  of  the  next  of  kin  and  heirs  at  law  of  said 
testator,  so  far  as  the  same  are  known,  with  their  residences 
or  post-office  addresses  and  the  manner  or  degree  in  which  they 
severally  stand  related  to  him  are  as  follows,  to  wit :  William 
Doe,  your  petitioner,  Richard  Doe  and  James  Doe,  children 
of  said  testator ;  your  petitioner  and  Richard  Doe  are  of  full 
age;  the  said  James  Doe  is  a  minor  of  the  age  of  fifteen 
years;  all  of  the  aforesaid  reside  at,  and  their  post-office  ad- 
dresses are  Number Street,  in  the of 

,  in  the  County  of   and  State  of    

The  residuary  legatees  named  in  the  will  of  the  said  John  Doe 
are  your  petitioner,  Richard  Doe,  James  Doe  and  Mary 
Williams. 

4.  All  of  said  residuary  legatees  and  persons  entitled  to  ad- 
ministration upon  the  estate  of  the  said  John  Doe  have  duly 
renounced  their  right  of  administration  and  requested  the 
appointment  of  your  petitioner,  {or  due  notice  of  this  applica- 
tion lias  been  gii'cn  to  all  persons  entitled  to  administration 
upon  the  estate  of  the  said  John  Doc,  deceased) . 

Your  petitioner  therefore  prays  that  letters  of  substitution- 
ary administration  with  the  will  of  the  said  John  Doe,  de- 
ceased, annexed  may  be  granted  to  him. 

Dated  Newark,  N.  J.,  William  Doe. 
i9--- 


State  oe  New  Jersey 
County  oe  Essex 


EY,  I 
>  ss. 


William  Doe,  being  duly  sworn  upon  liis*  oath  according  to 
law,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 
Deponent  further  says  that  the  value  of  the  estate  for  ad- 
ministration of  which  this  application  is  made  will  not  exceed 
in  value  the  sum  of dollars. 


LettivRS  of  xA.dministration.  997 


William   Dok. 


vSubscribed  and  sworn  to  this 

day  of    , 

19...,    before    me    at    Newark, 

N.  ]., 

J.C.  F., 

Notary  Public  of  N.  j. 

For  administration  with  the  will  annexed  see  Form  12. 
Form  of  notice  of  application  see  Form  36,  for  proof  of  service 
Form  38.  for  renunciation  Form  35. 


Form  53.     Order  Appointing  Substitutionary  Administrator  With 
the  Will  Annexed. 

[See  2  Comp.  Stat.,  page  _'_'5y,  sccticm  _'1),  page  275,  supra,  and 
Orphans'  Court  Rules  i.  2  and  5,  pages  258  and  259,  supra.] 

Essex  County  Surrogate's  Court. 

T      .,  ,.  r   ,,  4.  .        rl   On  petition  for  Letters  of 

In   the   matter  of   the   estate  of      ^  ,     .      .  »  ,     .    . 

T   ,      T^        J  J  >bubstitutionarvAdministra- 

|onn  Uoe,  deceased.  (     . 

J   tion  c.  t.  a. 

Order  Appo'nitiiui  Substituted 
Adiiiiuistrator  e.  f.  a. 

It  appearing  from  the  petition  of  William  Doe  that  John 

Doe,  late  of  the of in  the  County  of  Essex 

and  State  of  New  Jersey,  heretofore  departed  this  life  leaving 
a  last  will  and  testament  wherein  and  whereby  he  appointed 

X.  Y.,  of  the of ,  in  the  County  of   

and  State  of    ,  the  executor  thereof;    that  said  will 

was  duly  proved  before  the  Surrogate  of  the  said  County  of 
Essex  and  duly  recorded  in  his  office,  and  that  letters  testa- 
mentary thereon  were  duly  issued  by  said  Surrogate  to  the  said 
X.  Y.,  as  such  executor. 

And  it  further  ap])earing  that  the  said  X.  Y.,  after  having 
taken  upon  himself  the  burden  of  administration  died,  on  the 

day  of 19-  .  • ,  (or  zvas  removed,  or  as  tJie  ease 

may  be),  leaving  certain  property  and  assets  of  the  estate  of 
the  said  John  Doe  unadministered,  and  that  the  value  of  the 
property  so  remaining  unadministered  wifl  not  exceed  in  value 
the  sum  of dollars. 


998  Probate  Law  and  Practice. 

And  it  further  appearing  that  all  persons  entitled  to  adminis- 
tration upon  the  estate  of  the  said  John  Doe,  deceased,  have 
duly  renounced  their  right  of  administration  and  requested  the 
appointment  of  said  petitioner  (or  that  due  notice  of  this  appli- 
cation has  been  given  to  all  persons  entitled  to  administration 
upon  the  estate  of  the  said  John  Doe,  deceased). 

It  is  thereupon  on  this   day  of    ,  Nineteen 

Hundred  and   ,  ordered  that  letters  of  substitutionary 

administration  with  the  will  of  the  said  John  Doe,  deceased, 
annexed  be  issued  to  the  said  William  Doe  upon  his  entering 
into  bond  to  the  Ordinary  according  to  law  in  the  sum  of 

dollars,  with  sureties  to  be  approved  by  the  Surrogate. 

F.  G.  S.,  Jr., 


For  form  of  bond  see  Form  55. 


Surrogate. 


Form  54.     Oath  of  Substitutionary  Administrator  c.  t.  a. 

State  of  New 


Jersey,  ") 

^SSEX.        j 


CouNTv  oE  Essex. 

A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  will,  as  substituted  administrator  with 
the  will  annexed  of  John  Doe,  deceased,  well  and  truly  adminis- 
ter upon  all  and  singular  the  goods,  chattels  and  credits  of  said 
testator  which  shall  come  to  his  possession  or  knowledge,  or  to 
the  possession  of  any  other  person  or  persons  for  his  use, 
agreeably  to  said  will,  first  by  paying  the  debts  of  said  deceased, 
and  then  the  legacies  in  said  will  specified  as  far  as  the  goods, 
chattels  and  credits  of  said  deceased  will  thereunto  extend  aiid 
the  law  charge  him;  that  he  will  make  and  exhibit  into  the 
Surrogate's  Office  of  the  County  of  Essex  a  true  and  perfect 
inventory  of  all  and  singular  the  said  goods,  chattels  and  credits, 
as  far  as  the  same  have  or  shall  come  to  his  possession  or 
knowledge,  or  to  the  possession  of  any  other  person  or  persons, 
to  his  use,  to  his  knowledge.  And  that  he  will  well  and  truly 
account  when  thereunto  lawfully  required. 


Lettkrs  of  Administration.  999 

Subscribed   and   sworn   to  be-^ 
fore  me  at  Newark.  X.  J-.  this  >  A.  B. 
day  of   ^9-  •  •  J 

F.  G.  S.,  Jr., 
Surrogate. 

This  affidavit  must  be  taken  before  the   Surrogate. 


Form    55.      Bond    of    Substituted    Administrator    With    the    Will 
Annexed. 

[See  _'  Comp.  Stat.,  page  2259.  section  _'a,  page  25S,  .supra,  and  Or- 
phans' Court  Act.  section  47.  page  282,  supra.] 

Know   all    mex    by    these    presents,    That   We,   A.    B., 

C.  D.  and  E.  F.,  all  of  the of ,  in  the  County 

of  Essex  and  State  of  New  Jersey,  are  held  and  firmly  bound 
unto  the  Ordinary  of  the  State  of  New  Jersey,  in  the  sum  of 

dollars,  lawful  money  of  the  United  States,  to  be 

paid  to  the  said  Ordinary  as  aforesaid,  his  successors,  or  as- 
signs, to  which  payment  well  and  truly  to  be  made,  we  bind 
ourselves,  our  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  whereas  James 
Doe,  the  executor  named  in  the  will  of  John  Doe,  has  lately 
died,  leaving  assets  of  the  estate  of  the  said  John  Doe,  deceased, 
unadministered,  and  whereas  the  Surrogate  of  the  County 
of  Essex  has  appointed  A.  B.,  substituted  administrator  with 
the  will  of  the  said  John  Doe,  deceased,  annexed. 

Now,  therefore,  if  the  said  A.  B.  shall  well  and  faithfully 
perform  the  duties  devolving  upon  him  as  such  administrator 
according  to  law,  and  shall  make  a  just  and  true  account  of 
his  administration  within  twelve  calendar  months  from  the 
date  of  this  oljligation,  and  all  the  rest  and  residue  of  the 
goods,  chattels  ruid  credits  which  shall  be  found  remaining 
in  his  hands  upon  the  account  of  the  said  administration,  the 
same  being  first  examined  and  allowed  by  the  Orphans'  Court 
of  the  County  or  other  comjietent  authority,  shall  deliver  and 


looo  pROiiATE  Law  and  Practice. 

pay  unto  such  person  or  persons,  respectively,  as  is,  are  or 
shall  by  law  be  entitled  to  receive  the  same,  then  this  obligation 
to  be  void  or  else  to  remain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered  ^ 
in   the   presence   of :  > 

Add  justification  of  sureties  as  in  Form  7. 


A.  B. 

(L.  s.) 

CD. 

VL.  S.) 

E.F. 

(L.  S.) 

Form   56.      Letters   of    Substitutionary   Administration   With   the 
Will  Annexed. 

[See  Orphans'  Court  Rule  11,  page  889,  supra.] 

Essex  County  Surrogate's  Court. 

State  of  New  Jersey,  ) 
County  of  Essex,      j 

To  all  to  whom  these  presents  shall  come,  greeting: 
Whereas,  A.  B.,  late  of  the  County  of  Essex,  in  the  State  of 
New  Jersey,  died,  having  made  and  executed  a  last  will  and 
testament,  which  has  been  duly  proved  according  to  law  before 
the  Surrogate  of  the  County  of  Essex;  and  whereas,  the  said 
testator  appointed  C.  D.  executor  thereof,  who,  after  taking 
upon  himself  the  burden  of  administration,  departed  this  life 
{or    was    removed    or    discharged    from    his  said    office    by 

,  or  as  the  case  may  be)  ; 

Therefore,  I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex, 
do,  in  the  place  and  stead  of  the  said  C.  D.,  hereby  substitute 
and  appoint  E.  F.  administrator  of  all  and  singular  the  goods, 
chattels  and  credits  of  the  said  testator,  who  is  duly  authorized 
as  such  substituted  administrator  to  administer  the  same 
agreeably  to  said  will. 

In  Witness  Whereof.  I  have  hereunto  set  my  hand 
(l.  s.)     and  seal  of  office,  this   day  of 

A.  D.,  Nineteen  Hundred  and    

J.  G.  S.,  Jr., 
Surrogate. 


Letters  of  Aomixistkatiox.  iooi 

IV.  ADMINISTRATION   ON   ESTATE   OF  NONRESIDENT. 

Form     57.     Application     by    Administrator    of    Non-Resident     De- 
cedent for  Letters  of  Administration. 

[Sec  (Jrplians'  Court  Act.  section  29.  page  j;.'.  sujira.  and  Orphans' 
Court  Rules  i  and  2.  pages  258  and  259.  supra.] 

Essex  Countv  Sukkoc.xtic's  Court. 

.     ,  ,^    On   Petition    lor   Adniinis- 

in   the   matter   of   the   estate  ot  I  .         -.  ,^  . 

T  ,      „         ,  ,  >  tration     ui)on     bstate     01 

John  Doe,  deceased.  \    ^^       t^     •  , 

J    Aon-Kesidcnt. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  X.  Y.,  who  resides  at  No 

Street,  in  the of ,  in  the  County  of and 

State  of ,  respectfully  shows  that : 

1.  John  Doe,  late  of  the  City,  County  and   State  of   New 

York,  died  on  the day  of 19.  .  • ,  intestate, 

leaving  him  surviving,  as  his  only  next  of  kin  and  heirs  at  law, 
two  children,  to  wit:  William  Doe  and  Richard  Doe,  both  of 
whom  reside  at,  and  whose  post-ofifice  addresses  are  number 

.  .  .  . , Street,  in  the of in  the  County 

of and  State  of ;  William  Doe  is  of 

full  age,  and  Richard  Doe  is  a  minor  of  the  age  of  eighteen 
years. 

2.  Letters  of  administration  ui)on  the  estate  of  the  said  John 
Doe,  deceased,  were  duly  granted  to  your  petitioner  by  the 
Surrogate  of  the  said  County  of  New  York,  as  by  an  exempli- 
fied copy  of  said  letters  hereunto  annexed  will  more  fully 
appear. 

3.  The  said  John  Doe  died  possessed  of  personal  property 
situate  within  the  said  County  of  Essex,  to  wit:  tlie  sum  (jf 
dollars,  on  deposit  with  tlie  v^avings  insti- 
tution, in  the  City  of  Newark,  in  the  County  of  l{ssex  afore- 
said, to  the  credit  of  the  said  John  Doe,  deceased. 


I002  Probate  Law  and  Practice. 

Your  petitioner  therefore  prays  that  letters  of  administration 
upon  the  estate  of  the  said  John  Doe,  deceased,  may  be  granted 
to  him. 

Dated  Newark,  N.  J.,  X.  Y. 

, ,  I9--- 

State  oe  New  Jersey^ 


'EY,  ) 


County  of  Essex. 

X.  Y.,  being  duly  sworn  upon  his  oath  according  to  law, 
deposes  and  says  that  he  is  the  petitioner  in  the  foreoing  pe- 
tition named  and  that  the  matters  and  things  therein  contained 
are  true  to  the  best  of  his  knowledge  and  belief.  Deponent 
further  says  that  the  value  of  the  estate  for  administration  of 
which  this  application   is  made   will   not  exceed  the   sum   of 

dollars. 

Subscrilied      and      sworn      to"^ 
before    me,    at    Newark,    N.    ].,>  X.  \. 

this dav  of ^9-  •') 

J.  C.  F.,' 

Notary  Public  of  N.  J. 


Form  59.     Application  by  Creditor  of  Non-Resident  Decedent  for 
Letters  of  Administration. 

[See  Orphans'  Court  Act,  section  29,  page  252,  supra,  and  Orphans' 
Court  Rules  i  and  2,  pages  258  and  259,  supra.] 

Essex  County  Surrogate's  Court. 

")  On   Petition    for   Adminis- 

In  the  matter  of   the   estate  of  I  ^    ,.  t^  ^  ^      r  at 

^  ,      ^        ,  ,  >tration  upon  Estate  of  J\ on- 

John  Doe,  deceased.  J  j^^^.^^^^^ 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  X.  Y.,  who  resides  at  Number  .  .  .  . , 

Street,  in  the of ,  in  the  County  of and 

State  of  New  Jersey,  respectfully  shows  that : 


Letters  of  Administration'.  1003 

1.  John  Doe.  late  of  the  City.  County  and  State  of  New 
York,  died,  as  your  petitioner  has  been  informed  and  verily 

believes,  on  or  about  the day  of  19.  .  . ,  and 

more  than  sixty  days  ago,  intestate. 

2.  The  said  John  Doe  left  him  surviving,  as  his  only  next 
of  kin  and  heirs  at  law,  two  children,  to  wit:  William  Doe  and 
Richard  Doe,  both  of  whom  reside  at,  and  whose  post-office 

addresses  are  Number Street,  in  the of 

.........  in  the  County  of   and  State  of   ; 

the  said  William  Doe  is  of  full  age  and  the  said  Richard  Doe  is 
a  minor  of  the  age  of  fourteen  years. 

3.  Said  intestate  was  not  a  resident  of  this  state,  and  died 
])Ossessed   of   personal   property   situate   within   the   aforesaid 

County  of  Essex,  to   wit :    the  sum  of    dollars,  on 

deposit  with  the   Savings  Institution,  in  the  City  of 

Newark,  in  the  County  of  Essex  aforesaid,  to  the  credit  of  the 
said  John  Doe. 

4.  William  Doe  has  been  appointed  by  the  Surrogate  of  the 
said  County  of  New  York  administrator  of  the  estate  of  the 
said  John  Doe  within  the  State  of  New  York,  but  no  application 
has  been  made  by  the  said  administrator  for  letters  of  adminis- 
tration in  this  State  upon  the  estate  of  the  said  John  Doe. 
although  more  than  sixty  days  have  elapsed  since  the  death  of 
the  said  John  Doe. 

3.  Your  petitioner  has  a  legal  claim  against  the  said  John 
Doe,  which  by  the  laws  of  this  state  survives  against  the 
personal  representatives  of  such  decedent,  which  debt  con- 
sists of  a  note  for dollars,  made  by  the  said  John  Doe 

to  the  order  of  your  petitioner,  dated  January  i,  191 5  and 
])ayable  three  months  after  date. 

Your  petitioner  therefore  prays  that  the  surrogate  shall 
direct  what  notice  of  this  application  be  given  and  that  letters 
of  administration  upon  the  estate  of  the  said  John  Doe  be 
granted  to  him,  or  to  such  other  fit  person  as  the  said  surrogate 
may  select. 

Dated  Newark.  N.  J.,  X.  Y. 
^9--- 


I004  Probate  Law  and  Practice. 


State  of  New  Jersey 
County  of  Essex. 


>  ^^. 


X.  Y.,  ha'mg  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 
tition named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  estate  for  which  this 
application  is  made  will  not  exceed  the  sum  of dollars. 

Subscribed  and  sworn  to  this"^ 
day  of    ,  I  -^  Y 

19  .  .  .,  at  Newark,  N.  J.,  before  | 
me. 

J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  order  of  Surrogate  directing  notice  to  be  given 
see  Form  60,  for  proof  of  service  see  Form  38,  for  proof  ot 
mailing  see  Form  39. 


Form  58.     Ordef  Appointing  Administrator  of   Non-Resident  De- 
cedent upon  Application  of  Foreign  Administrator. 

Essex  County  vSurrogate's  Court. 

.     ,  ."^    On    Petition    for   Adminis- 

In  the   matter  of   the   estate   of  I  .  -r^  ^  ^         i 

^  ,      ^        ,  ,  >tration     upon     Estate     of 

ohn  Doe,  deceased.  ,,       t^     •  , 

J    Aon-Resulent. 

Order  Grantiiuj  .  Idiniiii.s-tration. 

Upon  reading  and  filing  the  petition  of  X.  Y.,  of  the  City, 
County  and  State  of  New  York,  whereby  it  a^jpears  that  John 

Doe,  late  of  the  City  of  New  York  aforesaid,  died  on  the 

day  of    ,    19...,  intestate,   and  the   Surrogate  being 

satisfied  that  the  said  John  Doe  was  a  resident  of  the  State  of 
New  York  and'  that  letters  of  administration  upon  his  estate 
were  duly  granted  to  the  said  X.  Y.,  the  petitioner  herein,  by 
the  Surrogate  of  the  said  County  of  New  York,  and  that  said 
intestate  died  possessed  of  personal  property  within  this  state 
of  the  value  of dollars. 

It  is   thereupon,   on   this    day   of 19..., 

ORDERED  that  letters  of  administration  upon  the  estate  of  the 


LETTRRS  of  Ad.M  I  N  1  S TRATION.  IOO5 

said  John  Doe,  deceased,  be  granted  to  the  said  X.   V..  upon 

his  giving  a  bond  to  the  Ordinary   in  the  sum  of    

dollars,  with  sureties  to  be  approved  by  the  Surrogate. 

F.  G.  S.,  Jr., 
Surrogate 
For  form  of  bond  see  Form  42. 


Form  60.  Order  Prescribing  Notice  to  be  Given  to  Executor  or 
Administrator  of  Non-Resident  Intestate,  on  Application  by 
a  Creditor  for  Letters  of  Administration. 

[See  Orplians'  Court  Act,  section  29,  i)age  J52.  supra.] 

Essex  Couxtv  Sukroc.xte's  Court. 

In  the  matter   of   the   estate   of  ")  On  Petition  for  Letters  of 
John  Doe,  deceased.  j  Administration. 

Ordtv. 

On  reading  and  tiling  the  petition  of  X.  Y.,  wherein  it  appears 
that  John  Doe,  a  resident  of  the  City,  County  and  State  of  New- 
York,  died  intestate,  leaving  personal  property  within  the 
County  of  Essex,  in  the  State  of  New  Jersey,  and  it  further 
appearing  that  William  Doe,  the  administrator  of  the  estate  of 
the  said  intestate,  appointed  by  the  Surrogate  of  the  said 
County  of  New  York,  has  neglected  for  the  space  of  sixty  days 
after  the  death  of  such  decedent  to  make  application  within  this 
state  for  letters  of  administration  upon  the  estate  of  the  said 
decedent;  that  X.  Y.,  the  petitioner  herein,  has  a  debt  against 
such  decedent  which,  by  the  laws  of  this  state,  survives  against 
his  personal  representatives  and  that  said  petitioner  prays  that 
administration  upon  the  estate  of  the  said  John  Doe  be  granted 
to  him,  or  to  such  other  fit  person  as  the  said  Surrogate  may 
select. 

It  is  thereupon,  on  this day  of k;.  .  . .  ordered 

that  ....  days  notice  of  said  ]jetitioner's  application  for  letters 
fjf  administration  upon  the  estate  of  the  said  John  Doe, 
deceased,  be  given  to  the  administrator  of  the  estate  of  the 
said  John  Doe  aj)pointcd  by  the  Surrogate  of  the  said  County 


ioo6  Probate  Law  and  Practice. 

of  New  York,  as  aforesaid,  l)v  niailino^  such  notice   (or  such 
notice  as  the  Surrogate  max  direct.) 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  notice  see  Form  36,  for  proof  of  service  see 
Form  38,  for  proof  of  mailing-  Form  39. 


Form  61.    Order  Granting  Letters  of  Administration  to  a  Creditor 
upon  the  Estate  of  a  Non-Resident  Decedent. 

[See  Orphans'  Court  Act,  section  29,  page  252,  supra.] 

Essex  County  Surrogate's  Court. 

T-       ,  .     ,  ,^    On  Petition  for  Lettc-s  of 

in   the   matter   01   the   estate  of  I    ...   .         .  -r^ 

_  ,      -r--         ,  ,  >-Aammistration  upon  instate 

|olm  Doe,  deceased.  r  ^^       ^     ■  ^ 

J   of  Aon-Kesident. 

Order  Granting  Letters. 

On  reading  and  filing  the  petition  of  X.  Y.,  whereby  it 
appears  that  John  Doe,  a  resident  of  the  State  of  New  York, 
departed  this  life  intestate,  leaving  personal  property  within 
the  County  of  Essex  and  State  of  New^  Jersey ;  and  it  further 
appearing  that  William  Doe,  the  administrator  of  the  estate  of 
the  said  intestate,  appointed  by  the  Surrogate  of  the  County 
of  New  York,  in  said  State  of  New  York,  has  neglected  for 
the  space  of  sixty  days  after  the  death  of  such  decedent  to 
make  application  within  this  state  for  letters  of  administration 
upon  the  estate  of  the  said  decedent ;  and  it  further  appearing 
that  X.  Y.,  the  petitioner  herein,  has  a  debt  against  such 
decedent  which  by  the  laws  of  this  state  survives  against  the 
personal  representatives  of  such  decedent,  and  that  due  notice 
of  this  application  has  been  given  to  William  Doe,  the  adminis- 
trator appointed  upon  the  estate  of  the  said  John  Doe  by  the 
Surrogate  of  the  said  County  of  New  York  as  aforesaid,  pur- 
suant to  the  order  of  the  Surrogate  made  herein,  and  the  Surro- 
gate having  inquired  into  the  matter  and  being  of  the  opinion 
that  L.  R.  is  a  fit  person  to  be  intrusted  with  the  administration 
of  said  estate. 


Letters  of  Admin  is iratiox.  I(X)7 

It  is  thereupon,  on  this day  of I9-  •  •  • 

ordered  that  letters  of  administration  of  the  goods  and  chattels, 
rights  and  credits  of  the  said  John  Doe  within  this  state  be 
granted  to  the  said  L.  R.  upon  his  giving  bond  to  the  Ordinary 

in  the  sum  of dollars,  with  sureties  to  be  a])proved  by 

the  said  Surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 
For  form  of  Bond  see  Form  42. 


V.  DISPUTED  ADMINISTRATION. 

Form  62.     Caveat  Against  Granting  Administration. 

Essex  County  Surrogate's  Court. 


In   the   matter  of   the  estate  of  1 


John  Doe,  deceased. 

Caveat. 

To  F.  G.  S..  Jr..  Surrogate  of  Essex  County: 

Take  notice,  that  I,  William  Doe,  a  lawful  child  and  one  of 

the  next  of  kin  of  John  Doe,  late  of  the .of in 

the  County  of  Essex  and  State  of  New  Jersey,  who  died  in- 
testate on  the day  of 19.  .  • ,  claim  adminis- 
tration of  the  estate  of  the  said  John  Doe,  deceased,  and  do 
hereby  caveat  and  protest  against  granting  letters  of  adminis- 
tration upon  the  estate  of  the  said  John  Doc  until  the  dispute 
respecting  niv  right  and  claim  thereto  shall  be  determined  by 
the  C  )r])hans'  Court  of  said  county. 

Dated  Newark,  N.   J.,  Wh.i.iam  Doe. 


,,  19. 


Form  63.     Citation  on   Caveat   against   Granting   Administration. 

[Sec  Orphans'  Court  Act.  section  26,  page  251.  supra.] 

Essex  County,   ss. — The   State  of   New   Jersey,   to   X.   Y.. 
Greeting : 

[e.  s.]     You  are  hereby  cited  and  warned  to  be  and  appear 
before  the  Orphans'  Court  to  be  held  at  Newark,  in 
65 


Tfxj8  Probate  Law  and  Practice. 

and  for  the  County  of  Essex,  on ,  the day  of 

,  19.  .  .,  to  answer  unto  the  caveat  of  William  Doe 

against  granting  administration  upon  the  estate  of  John  Doe, 
deceased,  at  which  time  and  place  the  said  court  will  hear  and 
determine  the  matter. 

Witness  W.  P.  M.,  Esq.,  judge  of  our  said  Orphans'  Court 
at  Newark,  aforesaid,  the  day  of  A.  D.  nine- 
teen hundred  and 

F.  G.  S.,  Jr., 

Surrogate  and  Clerk. 
This  citation  must  be  served  by  the  Sheriff. 


Form  64.    Citation  in  Case  of  Disputed  Administration, 

[See  Orphans'  Court  Act,  section  26,  page  251,  supra.] 

State  of  New  Jersey, 


County  of  Essex. 

The  State  of  New  Jersey  to  James  Doe,  Greeting: 
A  dispute  having  arisen  as  to  the  right  of  adminis- 

[l.  s.]     tration  upon  the  estate  of  John  Doe,  late  of , 

deceased,  you  are  hereby  cited  and  warned  to  appear 
before  the  Orphans'  Court  to  be  holden  at  Newark  in  and  for 

the  County  of  Essex  on  the day  of   ,   19.  .  ., 

at  10  a.  m.,  at  which  time  and  place  the  said  court  will  hear  and 
determine  the  matter  in  controversy. 

Witness  W.  P.  M.,  Esq.,  judge  of  our  said  Orphans'  Court, 

at  Newark,  this day  of ,  19.  .  . 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 

A  dispute  may  arise  as  to  the  right  of  administration  either 
by  the  filing  of  a  caveat  by  contestant  or  by  his  filing  a  cross 
petition  for  letters. 

This  citation  must  be  served  by  the  SheriiT. 


Release  of  Sureties.  1009 

MISCELLANEOUS  PROCEEDINGS  IN  CONNEC- 
TION WITH  BONDS  OF  EXECUTORS,  AD- 
MINISTRATORS, ETC. 

I.   RELEASE   OF   SURETIES. 

Form  65.     Application   of   Surety   to   be    Released   from    Further 
Liability  on  Bond. 
[See  Orphans'  Court  Act,  section  144,  page  333,  supra.] 

Essex  County  Orphans'  Court. 


Ill   the   matter   of   the   estate   of  |  On  Petition  of  Surety  for 
John  Jones,  deceased.  j  Relief. 

Petition. 


To  THE  Orphans'  Court  of  the  County  of  Essex  : 

The  petition  of  A.  B.,  of  the    of    ,  in  the 

County  of   and  State  of   ,  respectfully  shows 

that  : 

He  is  one  of  the  sureties  of  William  Doe.  the  administra- 
tor of  the  estate  of  John  Jones,  deceased,  appointed  hy  the 

Surrogate  of  the  Comity  of  Essex  on  the day  of 

19.  .  . ,  and  desires  to  he  released  from  responsihility  on  account 
of  the  future  acts  and  defaults  of  the  said  William  Doe  as 
such  administrator. 

Your  petitioner  therefore  prays  that  this  court  may  direct 
that  a  citation  be  issued  directed  to  the  said  William  Doe,  as 
such  administrator,  requiring  him  to  appear  before  this  court, 
at  a  time  and  place  to  be  therein  specified,  to  state  and  settle 
his  account  of  the  estate  that  has  come  into  his  hands,  and  of 
the  claims  presented  to  him  against  the  same,  and  to  give  new 
sureties  in  the  usual  form  for  the  discharge  of  his  duties  as 
required  by  the  statute  in  such  case  made  and  ])rovi(led. 

Dated  Newark,  N.  T-,  *    -r, 

A.  B. 
i9--- 

State  of  New  Jkrsen',  | 
County  of  Essex.      | 

A.  B.,  being  duly  sworn  according  to  law  upon  his  oath 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 


loio  Probate  Law  and  Practice. 

tition  named,  and  that  the  matters  and  things  therein  contained 
are  true  to  the  best  of  his  knowledge  and  beHef. 


Subscribed  and  sworn  to  this"^ 
day  of    , 

1 9  ....  at  Newark.  N.  J.,  before 
me. 

J.  C.  F., 

Notary  PubHc  of  N.  J 


A.  B. 


Form  66.     Citation  to  Administrator,  Etc.,  to  Account  and  Give 
New   Bond. 

[See  Orphans'  Court  Act,  section  144,  page  333.  supra.] 

Essex  County  Orpfians'  Court. 


State  of  New 
County  of  Es 


Jersey,  ) 
■^  }  ss. 

SSEX.       j 


The    State    of    New    Jersev 
TO   WiEEiAM   Doe,  Adminis- 

[L.  S.]  TRATOR     of     the     EsTATE     OF 

John  Jones,  Deceased. 
Greeting  : 

You  are  hereby  cited  and  commanded  personally  to  be  and 
appear  before  the  Orphans'  Court  to  be  holden  at  the  Court- 
house in  the  City  of  Newark,  in  and  for  the  County  of  Essex. 

on  the day  of ,  one  thousand  nine  hundred  and 

,  at  ten  o'clock  in  the  forenoon,  to  state  and  settle  your 

account  of  the  estate  of  the  said  John  Jones,  deceased,  which 
has  come  into  your  hands  as  administrator  of  said  estate,  and 
the  claims  presented  to  you  against  the  same,  and  to  give  new 
sureties  in  the  usual  form  for  the  discharge  of  your  duties 
as  such  administrator,  as  required  by  the  statute  in  such  case 
made  and  provided. 


Release  of  Sureties.  ioii 

Witness,  W.  P.  M..  Judge  of  our  said  Orphans"  Court,  at 

Newark,  aforesaid,  this day  of one  thousand 

nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 


Form  67.     Order  Releasing  Surety  from  Further  Liability. 

[See  Orphans'  Court  Act,  section  144,  page  i^^.  supra.] 
In   the   matter  of   the   estate  of  |  On  Petition  of  Suretv  for 
John  Doe,  deceased.  j  Relief. 

Order   Releasing  Surety. 

Application  having  been  made  b\-  A.  B.,  one  of  the  sureties 
of  William  Doe,  administrator  of  the  estate  of  John  Jones, 
deceased,  duly  appointed  by  the  Surrogate  of  the  County  of 
Essex,  to  be  released  from  further  responsibility  on  account 
of  the  future  acts  and  defaults  of  the  said  William  Doe  as  such 

administrator,   and  it   appearing  that   on   the    day   of 

,  19-  •  ■>  this  court  ordered  that  a  citation  issue  to  the 

said  \\illiam  Doe  directing  him  to  state  and  settle  his  account 
as  such  administrator  and  give  new  sureties  in  the  usual  form 
for  the  discharge  of  his  duties  as  such  administrator,  which 
citation  has  been  duly  issued  and  served;  and  the  said  William 
Doe  having  appeared  and  stated  and  settled  his  account  and 
given  new  sureties  to  the  satisfaction  of  this  court ; 

It  is  thereupon,  on  this day  of ,  19.  .  .  ordered 

that  the  said  A.  B.,  surety  as  aforesaid,  shall  not  be  liable  on 
his  aforesaid  bond  for  any  act,  default  or  misconduct  of  the 
said  William  Doe,  as  such  administrator,  subsequent  to  the 
date  of  this  order.  W.  P.  M., 

Judge. 


Form    68.      Petition    for    Discharge    of    Sureties    After    Adminis- 
tration Completed. 

[See  Orphans'  Court  .Act,  section  145,  page  334,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  )  On  Petition  of  Sureties  for 
John  Doe,  deceased.  j  Discharge. 

Petition. 


IOI2  Probate  Law  and  Practice. 

To  THE  Orphans'  Court  of  the  County  of  Essex  : 
The  petition  of  A.  B.  and  C.  D.  respectfully  shows  that : 

1.  They  are  the  sureties  or  bondsmen  upon  the  bond  of 
William  Doe  given  by  him  as  administrator  of  the  estate  of 
the  said  John  Doe,  deceased,  and  filed  in  the  office  of  the 
Surrogate  of  the  County  of  Essex. 

2.  The  said  William  Doe  has  duly  stated  and  settled  his  final 
account  as  such  administrator  in  the  office  of  the  Surrogate  of 

said  County  of  Essex,  and  said  account  was  on  the day 

of ,  19.  . . ,  duly  allowed  by  this  court. 

3.  After  the  allowance  by  this  court  of  the  said  account,  a 
final  decree  of  distribution  was  made  by  this  court  and  filed  in 
the  office  of  the  Surrogate  of  the  said  County  of  Essex  on  the 

day  of ,  19.  .  . ,  and  more  than  three  months 

ago,  and  no  appeal  from  such  order  of  distribution  is  pending. 

4.  The  entire  estate  of  the  said  John  Doe,  deceased,  which 
came  into  the  hands  of  the  said  William  Doe,  administrator  as 
aforesaid,  has  been  duly  distributed  according  to  law,  as  will 
appear  from  refunding  bonds  filed  in  the  office  of  the  Surro- 
gate of  this  county. 

5.  The  next  of  kin  and  persons  entitled  to  participate 
in  the  distribution  of  the  estate  of  the  said  John  Doe,  deceased, 
are  as  follows :  Jane  Doe,  widow,  who  resides  at  Number  .  .  .  . , 

Street,  in  the   of    in  the  County  of 

and   State  of .  ;    Peter  Doe,  brother,  who 

resides  at  Number , Street,  in  the   of 

,  in  the  County  of and  State  of ;  and 

James  Doe,  brother,  who  resides  at  Number 

Street,  in  the of ,  in  the  County  of and 

State  of All  of  the  aforesaid  next  of  kin  are  of  full 

age  with  the  exception  of  Peter  Doe,  who  is  a  minor  of  the  age 
of  fifteen  years,  and  Jane  Doe  aforesaid  has  been  duly  ap- 
pointed the  guardian  of  the  said  Peter  Doe  by  the  Surrogate  of 
the  County  of  Essex  aforesaid. 

Your  petitioners  therefore  pray  that  an  order  may  be  made 
discharging  them  from  any  and  every  liability  by  reason  of  their 
having  become  sureties  upon  the  bond  of  the  said  William  Doe, 
.administrator  as  aforesaid. 


Release  of  Sureties.  1013 

Dated  Newark,  N.  T-,  A.  B. 
, ,  i9---  C.D. 


F  New  Jersey,  ") 
rv  OF  Essex.      j 


State  of 


A.  B.  and  C.  D.,  being  severally  duly  sworn  according  to  law 
upon  their  oaths,  depose  and  say  that  they  are  the  petitioners 
in  the  foregoing  petition  named  and  that  the  matters  and  things 
therein  contained  are  true  to  the  best  of  their  knowledge  and 
belief. 

Subscribed      and      sworn      to^ 

this day  of ,  19 .  .  . ,  >  A.  B. 

at    Newark,    N.    J.,    before    me.  J  C.  D. 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  statute  provides  that  such  notice  of  this  application  as 
the  court  may  prescribe  shall  be  given  to  all  persons  inter- 
ested.    For   form  of   order  prescribing  notice   see  Form  60. 

A  very  convenient  method  of  proceeding,  however,  is  by 
rule  to  show  cause,  the  form  of  which  follows : 


Form   69.      Rule    to    Show    Cause    Why    Sureties    Should    Not    be 
Discharged. 

[See  Orphans'  Court  .■\ct,  section  145.  page  334,  supra.] 

Essex  County  Orphans'  Court. 

Tn   the  matter  of  the   estate   of  )  On  Petition  of  vSureties  for 
John  Doe,  deceased.  J  Discharge. 

Order  to  Show  Cause. 

It  appearing  from  the  petition  of  .\.  B.  and  C.  D.  that  they 
are  the  sureties  upon  the  bond  of  William  Doe,  administrator 
of  the  estate  of  John  Doe,  late  of  the  County  of  Essex,  de- 
ceased, and  that  the  account  of  the  said  William  Doe  has  been 
duly  allowed  by  this  court,  and  that  thereafter  a  final  decree 
of  distribution  of  the  surplus  of  the  said  estate  was  by  this 


I0I4  Probate  Law  and  Practice. 

court  made  more  than  three  months  ago,  and  that  no  appeal 
from  such  order  of  distribution  is  pending;  and  that  the 
said  A.  B.  and  C.  D.,  pray  to  be  released  from  further  lia- 
bility as  sureties  upon  the  bond  of  William  Doe,  administra- 
tor as  aforesaid. 

And  it  further  appearing  that  the  next  of  kin  and  persons 
by  law  entitled  to  distribution  of  the  surplus  of  the  estate  of 
the  said  John  Doe,  deceased,  are  Jane  Doe,  James  Doe  and 
Peter  Doe;  that  the  said  Jane  Doe  and  Peter  Doe  are  resi- 
dents of  this  State ;  that  the  said  Peter  Doe  is  a  minor  and 
that  Jane  Doe  has  been  duly  appointed  his  guardian  by  the 
Surrogate  of  the  County  of  Essex  and  that  James  Doe  resides 
in  the  City  of  London,  in  the  Kingdom  of  Great  Britain. 

It  is  thereupon  on  this day  of One  Thou- 
sand nine  hundred  and ,  ORDERED  that  the  said  Jane  Doe, 

Peter  Doe  and  James  Doe  show  cause  before  this  court  on  the 

day  of ,  one  thousand  nine  hundred  and.  .  .  . , 

why  the  said  A.  B.  and  C.  D.  should  not  be  discharged  from 
any  and  every  liability  by  reason  of  their  having  become  the 
sureties  of  the  said  William  Doe  as  aforesaid,  and  it  is  further 

ordered  that  this  order  be  served  within days  from  the 

date  thereof  in  manner  and  form  following:  upon  such  of  the 
aforesaid  next  of  kih  as  may  be  residents  of  this  State,  by 
serving  a  true  but  uncertitied  copy  of  the  same  upon  them 
either  personally  or  by  leaving  a  copy  thereof  at  their  resi- 
dence or  usual  place  of  abode  with  a  person  above  the  age 
of  fourteen  years ;  upon  Peter  Doe,  a  minor  as  aforesaid,  by 
serving  a  true  but  uncertified  copy  of  the  same  upon  Jane 
Doe,  his  guardian  as  aforesaid,  personally,  or  by  leaving  a  true 
but  uncertified  copy  thereof  at  her  residence  or  usual  place 
of  abode  with  a  person  above  the  age  of  fourteen  years ;  and 
upon  James  Doe  by  mailing  a  true  but  uncertified  copy  of  this 
order  to  him  by  registered  mail,  addressed  to  him  at  his 
last  known  address  in  the  City  of  London,  with  the  postage 
thereon  prepaid.  W.  P.  M., 

Judge. 


Release  of  Sureties.  loi 

Form    70.      Order    Discharging    Sureties. 

[See  Orpiiaiis'  Court  Act,  section  145.  page  334.  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of   the   estate   of  )  On  Petition  of  Sureties  for 
John  Doe,  deceased.  j  Discharge. 


)  On  Pc 
J  Dischc 

Order   Discharging   Sureties. 


AppHcation  having  been  made  by  A.  B.  and  C.  D.,  the 
sureties  upon  the  bond  of  W'ilHam  Doe,  administrator  of  the 
estate  of  John  Doe,  deceased,  and  it  appearing  that  the  said 
William  Doe  has  duly  stated  and  settled  his  final  account  as 
such  administrator  in  the  office  of  the  Surrogate  of  the  Coun- 
ty of  Essex;  that  said  account  was  duly  allowed  by  this  court, 
and  that  after  the  allowance  by  this  court  of  the  said  account 
a  final  decree  of  distribution  of  the  surplus  of  said  estate  was 
made  by  this  court,  which  said  final  decree  of  distribution  was 

filed  in  the  office  of  the  Surrogate  of  this  County  on  the 

day  of ,  19.  .  .,  and  it  appearing  that  more  than  three 

months  have  elapsed  since  the  filing  of  the  aforesaid  final 
decree  of  distribution,  and  that  no  appeal  from  said  decree  of 
distribution  is  pending,  and  that  the  rule  to  show  cause  made 

herein  on  the day  of   19.  .  .,  has  been  duly 

served  in  manner  and  form  as  therein  directed,  and  proof 
having  been  made  to  the  satisfaction  of  the  court  that  the 
entire  estate  in  the  hands  of  the  said  William  Doe  as  such 
administrator  has  been  distributed  according  to  law. 

It  is  thereupon,  on  this day  of ,  one  thou- 
sand nine  hundred  and    ,  (jrdkrku  that  the  said  A.  B. 

and  C.  D.  be  and  they  are  hereby  discharged  from  any  and 
every  liability  by  reason  of  their  having  become  sureties  upon 
the  bond  of  the  said  Willim  Doe  as  aforesaid. 

W.  P.  i\I.. 

Judge. 


ioi6  Probate  Law  and  Practice. 

II.  PROCEEDINGS  BY  SURETY  TO  REQUIRE  PRINCIPAL 
TO   GIVE   SEPARATE   SECURITY. 

Form  71.     Petition  of  Surety  for  Order  Requiring  Administrator, 
Etc.,  to  Account  and   Give   Separate   Security. 
[See  Orphans'  Court  Act.  section  143.  page  S33-  supra.] 

Essex  Countv  Orphans'  Court. 


In  the   matter  of   the   estate   of  )  On  Petition  of  Surety  for 
John  Doe,  deceased.  j  Relief. 

Petition. 


To  THE  Orphans'  Court  of  the  County  of  Essex  : 

The  petition  of  X.  Y.,  of  the    of    ,  in  the 

County  of   and  State  of   ,  respectfully  shows 

that : 

1.  Your  petitioner  is  the  surety  upon  the  bond  of  William 
Doe,  administrator  of  the  estate  of  John  Doe,  deceased;  the 
said  William  Doe,  administrator  as  aforesaid,  on  the  ....  day 

of ,  19.  .  .,  loaned dollars  of  the  funds  of  the 

said  estate  to  one  R.  S.,  of  ,  who  is  the  brother-in- 
law  of  said  administrator,  taking  as  security  therefor  the 
promissory  note  of  the  said  R.  S.,  payable  to  the  said  estate 
in  one  year  from  the  date  thereof. 

2.  The  said  R.  S.,  is,  as  your  petitioner  believes,  insolvent, 
and  the  funds  so  loaned  to  him  are  in  danger  of  being  lost  to 
said  estate. 

3.  Petitioner  believes  that  the  said  William  Doe  is  wasting 
and  mismanaging  the  said  estate,  whereby  he  may  become  liable 
to  loss  and  damage. 

Your  petitioner  therefore  prays  that  the  said  \\'illiam  Doe 
may  be  ordered  to  render  an  account  of  his  administration  to 
petitioner,  and  to  give  separate  security  to  petitioner  for  the 
true  payment  of  the  balance  remaining  in  his  hands  to  the 
creditors  and  representatives  of  the  said  John  Doe,  deceased, 
according  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

Dated  Newark,  N.  J.,  X.  Y. 

, ,  i9--- 


Relief  of  Sureties.  loi 

State  of  N: 


lEvv  Jersey,  | 
DF  Essex.       j 


County  of  ""  '     ' 

X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 
tition named,  and  that  the  matters  and  things  contained  therein 
are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this" 
day  of 


X   Y 

19  .  .  .,  at  Newark,  X.  J.,  before  ^ 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  72.     Order  Requiring  Administrator  to   Show   Cause  Why 
He  Should  Not  Account  to  Surety. 

[See  Orphans'  Court  Act.  section  143.  page  zzi'  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the   estate  of  |  On  Petition  of  Sureties  for 
John  Doe,  deceased.  j  Relief. 

Order  to  Sliozc  Cause. 

Application  having  been  made  to  this  court  in  writing  by 
X.  Y.,  the  surety  in  the  bond  of  William  Doe,  administrator 
of  the  estate  of  John  Doe,  deceased,  setting  forth  under  oath 
that  he  believes  that  the  said  William  Doe  is  wasting  and 
mismanaging  the  said  estate,  whereby  the  said  X.  Y.  may 
become  liable  to  loss  and  damage. 

It  is  thereupon,  on  this day  of  ,  19.  .  . ,  or- 
dered, that  the  said  William  Doe  do  show  cause  on  the 

day  of   ,  19.  . .,  at  10  a.  m.,  before  this  court  at  the 

Court  House  in  the  City  of  Newark,  why  he  should  not  ren- 
der an  account  of  his  administration  to  the  said  X.  Y.,  and 
give  separate  security  to  him  according  to  the  form  of  the 
statute  in  such  case  made  and  provided.  W.  P.  M., 

Judge. 


ioi8  Probate  Law  and  Practice;. 

Form    73.      Order    Requiring   Administrator    to    Account    to    His 
Surety. 
[See  Orphans'  Court  Act,  section  143,  page  m,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the   estate   of  )  On  Petition  of  Surety  for 
John  Doe,  deceased.  j  Relief. 

Order  lo  Account. 


It  appearing  from  the  petition  of  X.  Y.,  hied  herein,  that 
the  said  X.  Y.  is  the  surety  on  the  bond  of  William  Doe,  ad- 
ministrator of  the  estate  of  John  Doe,  deceased,  and  it  appear- 
ing that  on  the    day  of    ,    19...,  this   court 

ordered  that  said  William  Doe  show  cause  before  this  court 

on  the day  of ,  19 .... ,  why  he  should  not  render 

an  account  of  his  administration  to  the  said  X.  Y.,  and  give 
separate  security  to  him,  and  the  matter  now  coming  on  to 
be  heard,  and  the  court  having  examined  into  the  matter  and 
being  satisfied  that  the  said  W^illiam  Doe  has  wasted  arid  mis- 
managed the  said  estate,  whereby  the  said  X.  Y.,  may  become 
liable  to  loss  or  damage,  and  that  due  notice  of  this  appli- 
cation has  been  given  to  the  said  William  Doe  by  service 
upon  him  of  the  rule  to  show  cause  heretofore  made  herein. 

It  is,  on  this   day  of   ,  19.  .  .,  ordered  that 

the  said  William  Doe  on  or  before  the day  of , 

19...,  render  an  account  of  his  administration  to  the  said 
X.  Y.,  his  surety  as  aforesaid.  W.  P.  M., 

Judge. 


Form  74.     Order  Directing  Administrator  to  Give   Separate   Se- 
curity to  His  Surety. 

[See  Orphans'  Court  Act,  section  143,  page  333,  supra.] 

Essex  Countv  Orphans'  Court. 


In  the  matter  of  the  estate  of  )  On  Petition  of  Surety  for 
John  Doe,  deceased.  j  Relief. 

Order  Requiring  Administrator  to 
Give  Separate  Security. 


Relief  of  Sureties.  1019 

it  appearing  from  the  account  rendered  by  William    Doe, 
administrator  of  the  estate  of  John  Doe,  deceased,  to  X.  Y.,  his 

surety,  pursuant  to  an  order  of  this  court  made  on  the 

day  of 19.  .  .,  that  the  said  William  Doe  has  wasted 

and  mismanaged  the  said  estate,  whereby  the  said  X.  Y.,  mav 
become  liable  to  loss  or  damage. 

It  is  thereupon,  on   this    day  of    ,    19..., 

ordered,  and  the  said  William  Doe  is  hereby  directed  on  or 
before  the day  of 19.  .  . ,  to  give  separate  se- 
curity in  the  sum  of   dollars  to  the  said  X.  Y.,  his 

surety  as  aforesaid,  for  the  true  payment  of  the  balance  remain- 
ing in  his  hands  to  the  creditors  and  representatives  of  the  said 
John  Doe,  deceased.  \\'.  P.  AI., 

Judge. 


Form  75.     Form  of  Bond  Given  by  Administrator  to  His  Surety. 
[See  Orphans'  Court  Act,  section  143,  page  3^,  supra.] 

Know  all  men  by  these  presents,  that  we,  William  Doe, 

A.  B.,  and  C.  D.,  all  of  the of ,  in  the  County 

of and  State  of  New  Jersey,  are  held  and  firmly  bound 

unto  X.  Y.,  of  the of ,  in  the  County  of 

and  State  of  Xew  Jersey,  in  the  sum  of dollars,  lawful 

money  of  the  United  States,  to  be  paid  to  the  said  X.  Y.,  his 
executors,  administrators  or  assigns,  to  which  payment  well 
and  truly  to  be  made  we  bind  ourselves,  our  heirs,  executors 
and  administrators  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of   , 

one  thousand  nine  hundred  and 

'i1ie  condition  of  this  obligation  is  such  that  whereas  the 
said  William  Doe,  administrator  of  the  estate  of  John  Doe, 
deceased,  has  been  ordered  by  the  Orphans'  Court  of  the 
County  of  Essex  to  give  separate  security  to  the  said  X.  Y., 
his  surety  in  the  administration  bond  heretofore  given  by  the 
said  William  Doe;  now,  therefore,  if  the  said  William  Doe 
shall  true  payment  make  of  the  balance  of  the  estate  of  the 
said  John  Doe,  deceased,  remaining  in  his  hands,  to  the  cred- 
itors and  representatives  of  the  said  John  Doe,  deceased,  then 


]02(j  Probate;  Law  and  Practice. 

this  obligation  to  be  void,  otherwise  to  remain  in   fvill   force 

and  effect. 

^.        ,       ,        ,    ,  .  ^        William. Doe.  [e.  s.] 

Signed  and  sealed  ui  ,    r>  r  '      t 

,      ^  r  r  ^^-  B-  l^-  S-] 

the  presence  of         '  r^  t^  r        -, 

^  )  CD.  [l.  s.] 

Add  justification  of  sureties  as  in  Form  7. 


III.  REDUCTION  OF  BONDS. 

Form  76.     Petition  for  Reduction  of  Bond  of  Administrator  Etc. 

[See  P.  L.  191 1,  page  95,  page  321,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of   the   estate  of  ")  On  Petition  for  "Reduction 
John  Doe,  deceased.  j  of  Bond. 

Petition. 

To  THE  Orphans'  Court  of  the  County  of  Essex. 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : 

1.  On  the day  of  ,  19.  .  . ,  he  was  duly  ap- 
pointed by  the  Surrogate  of  the  County  of  Essex  aforesaid  ad- 
ministrator of  the  estate  of  John  Doe,  deceased,  and  thereupon 

entered  into  bond  as  such  administrator  in  the  sum  of 

dollars. 

2.  On  the day  of ,  19.  .  .,  the  intermediate 

account  of  your  petitioner  as  such  administrator  was  duly 
allowed  by  this  court,  whereby  it  appears  that  the  balance  of 

said  estate  remaining  in  his  hands  amounts  to. dollars. 

and  that  the  bond  given  by  your  petitioner  upon  the  grant  of 
letters  to  him  as  aforesaid  is  larger  than  is  necessary  for  the 
proper  protection  of  the  property  and  assets  of  the  said  estate. 

3.  The  persons  interested  in  the  estate  of  the  said  John 
Doe,  deceased,  are  as  follows :    Jane  Doe,  widow,  who  resides 

at  Number  .  .  .  . ,   ,  Street,  in  the of   ,  in 

the  County  of and  State  of ;   Henry  Doe,  a  son. 


Reduction  of  Bonds.  '  102 1 

who  resides  at  Number  .  .  .  ., Street,  in  the ol 

in  the  County  of and  State  of ,  and  your 

petitioner,  who  is  also  a  son  of  deceased. 

4.  Due  notice  of  this  application  has  been  given  to  all  of  the 
aforesaid  persons  interested  in  the  estate  of  said  John  Doe, 
deceased  (or  all  of  the  above-named  persons  interested  in  the 
estate  of  the  said  John  Doe,  deceased,  hare  duly  consented 
hereto,  as  by  their  consent  hereon  endorsed  will  more  fully 
appear). 

Your  petitioner  therefore  prays  that  this  court  may  order 
that  he  give  a  new  bond  as  such  administrator,  in  such  sum  as 
the  court  may  determine  as  sufficient  for  the  proper  protection 
of  the  property  and  assets  of  said  estate  remaining  in  his  hands. 

Dated  Xewark,  N.  J.,  William  Doe. 

i9--- 

State  of  New  Jersey, 


County  of  Essex. 


''  1  ss. 


William  Doe,  being  dulv  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this'^ 

day  of    , 

19.  .  ..  at  Newark,  N.  J.,  before  [ 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Wii.LLv.M   Doe. 


J 


Form  77.     Order  Reducing   Bond  of  Administrator,   Etc. 
[See  P.  L.  191 1,  page  95,  page  321,  supra.] 

Essex  Countn'  Orphans'  Court. 

In   the   matter  of   the   estc 


T   ,      T-x         1  1  I  C)n    Petition. 

John  iJoe,  deceased. 


tate  of  ) 


Order  Rcdiiciiui  .  Idiiiinistrator's 
Bond. 


I022  ■      Probate  Law  and  Practice. 

It  appearing  from  the  petition  of  William  Doe,  filed  herein, 
that  he  is  the  administrator  of  the  estate  of  John  Doe,  late  of 

the  County  of  Essex,  deceased,  and  that  on  the day  of 

,  19.  ...  he  entered  into  bond  to  the  Ordinary  in  the 

sum  of  dollars,  conditioned  for  the  faithful  per- 
formance of  his  duties  as  such  administrator,  and  that  on  the 

day  of    ,   19.  .  . ,  the  intermediate  account  of 

such  administrator  was  allowed  by  the  court,  whereby  it 
appears  that  the  balance  remaining  in  his  hands  amounts  to 
the  sum  of dollars. 

And  it  further  appearing  that  due  notice  of  this  application 
has  been  given  to  all  persons  interested  in  the  said  estate  ( or 
that  all  persons  interested  in  the  said  estate  have  duly  con- 
sented hereto)  and  the  court  being  satisfied  that  the  bond 
heretofore  given  by  such  administrator  is  in  a  larger  sum  than 
is  necessary  for  the  proper  protection  of  said  estate. 

It   is  thereupon,  on   this    day   of    19.  •  •, 

ORDERED  that  the  said  William  Doe,  administrator  as  afore- 
said, give  a  new  bond  to  the  Ordinary  of  the  State  of  New 

Jersey,  in  the  sum  of    dollars,  conditioned   for  the 

faithful  performance  of  his  duties  as  such  administrator,  as 
prescribed  by  law. 

W.  P.  M., 

Judge. 


Form  78.     Order  Discharging  Sureties  Upon  Filing  of  Reduced 
Bond. 

[See  P.  L.  191 1,  page  95,  page  321.  supra.] 

Essex  County  Orphans'  Court. 
In  the  matter  of   the   estate 


tate  of  ) 


T  ,      T^        ,  ,  ,  On  Petition. 

John  Doe,  deceased. 

Discharge   of   Original 
Sureties. 

It  appearing  that  by  an  order  of  this  court,  made  on  the 

day  of ,  19.  .  . ,  William  Doe,  administrator  of 

the  estate  of  John  Doe,  deceased,  was  ordered  to  give  a  new 


Reduction  of  Bonds.  1023 

bond  as  such  administrator,  in  the  sum  of   dollars. 

conditioned  for  the  faithful  performance  of  his  duties  as  such 
administrator,  and  the  said  William  Doe  having  duly  filed  a 
bond  as  directed  by  the  aforesaid  order  of  this  court,  with  con- 
ditions and  sureties  approved  by  this  court. 

It  is  thereupon,  on  this   day  of    nineteen 

hundred  and    ,  ordered  that    and    ,   the 

sureties  upon  the  original  bond  filed  by  William  Doe  as  such 
administrator,  be  and  they  are  hereby  discharged  from  all 
liability  thereunder   from  and   after  the   date   of   this   order. 

W.  P.  M., 

Judge. 

Form  78a.     Petition  for  the  Deposit  of  Securities  on  Reduction 
of  Bond. 

[See  Orphans'  Court  Act,  section  52,  as  amended  by  P.  L.  1915.  page 
40,  page  319.  supra.] 

Essex  County  Surrogate's  Court. 
In  the   matter  of   the  estate   of  ")  On  Petition  for  the  Deposit 
John  Doe,  deceased.  J  of  Securities. 

Petition. 
To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of and  State  of respectfully  shows 

that : 

1.  John   Doe,   late  of   the   City  of   Newark,   in   the   County 

of  Essex  and  State  of  New^  Jersey,  died  on  the day  of 

,  19.  .  .,  intestate,  and  your  petitioner  is  about  to  make 

application   for  letters  of  administration   ui)on   the  estate  of 
the  said  John  Doe,  deceased,  to  this  court. 

2.  The  .said  John  Doe  died  possessed  of  the  sum  of  twenty 
thousand  dollars  ($20,000.)  on  deposit  in  various  banking 
institutions  and  certain  stocks,  notes  and  bonds  and  mortgages 
of  the  value  of  approximately  one  hundred  thousand  dollars 
($100,000.).  as  set  forth  in  a  schedule  hereunto  annexed*  and 
made  a  jjart  liereof;  the  income  of  said  estate  amounts  to 
api)roximately  five  thousand  dollars  ($5,000.)  per  annum. 

Your  j)etitioner  therefore  i)rays  that  this  court  mav  bv  order 
direct  that  the  securities  named  in  the  schedule  hereto  annexed 
66 


1024  Probate  Law  and  Practice. 

be  deposited  with  the Trust  Company,  subject  to  the 

control  of  this  court  and  that  the  amount  of  the  bond  required 
from  your  petitioner  as  administrator  of  the  estate  of  the  said 
John  Doe,  deceased,  be  fixed  by  this  court  with  respect  to  the 
vahie  of  the  remainder  only  of  the  said  estate. 

Dated  William  Doe. 

, I9--- 


State  oe  New  Jersev 
County  oe  Essex 


'  1  ss. 


William  Doe,  of  full  age,  being  duly  sworn  according  to  law 
upon  his  oath,  deposes  and  says  that  he  is  the  petitioner  in  the 
foregoing  petition  named  and  that  the  matters  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


William  Doe. 


J 


Subscribed  and  sworn  to  this^ 

day  of ,  I 

19  .  .  .,  at before  j 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Schedule. 

[Here  insert  list  of  all  securities  zvliich  it  is  intended  to  de- 
posit, stating  their  character  and  value.) 


Form   78b.      Order    Directing   Deposit   of    Securities   and    Fixing 
Amount  of  Bond. 

Essex  County  Surrogate's  Court. 

In  the   matter  of   the  estate   of  )  On    Petition    for    the    De- 
John  Doe,  deceased.  j  posit  of   Securities. 

Order. 

Upon  reading  and  filing  the  petition  of  William  Doe,  filed 
herein,  whereby  it  appears  that  the  said  John  Doe  died  pos- 
sessed  of   cash  to   the   amount   of   Twenty   thousand   dollars 


Reduction  of  Bonds.  102 


<  $20,000. )  and  securities  to  the  amount  of  One  hundred  thou- 
sand dollars  ($100,000.)  and  that  the  income  from  said  estate 
amounts  to  approximately  Five  thousand  dollars  ($5,000.)  per 
vear,  and  it  appearing  that  the  value  of  said  estate  is  so  great 
that  this  court  deems  it  inexpedient  to  require  security  in  the 
full  amount  prescrihed  by  law. 

It  is  thereupon  on  this day  of  One  thou- 
sand nine  hundred  and    okdicked   that   the   securities 

named  in  the  schedule  annexed  to  the  ])etition  filed  herein  be 

deposited  with    Trust  Company   (or  Sariugs 

Bank,  or  Saz'ijigs  Institution),  subject  to  the  control  of  this 
court,  pursuant  to  the  statute  in  such  case  made  and  provided. 

And  it  is  further  ordered  that  the  amount  of  the  bond 
required  from  the  said  William  Doe  as  administrator  of  the 
estate  of  the  said  John  Doe,  deceased,  be  and  the  same  is  hereby 
fixed  in  the  sum  of  Sixtv  thousand  dollars  ($60,000.). 

F.  G.  S.,  Jr., 
Surrogate. 


Form  78c.     Certificate  of  Deposit  of  Securities. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex. 

This  is  to  certify  that  in  accordance  with  your  order  made  on 
the  day  of  ,  19.  .  . ,  William  Doe,  the  ad- 
ministrator of  the  estate  of  John  Doe,  deceased  on  the 

day  of ,  19.  .  . ,  deposited  with  the Trust 

Company,  as  custodian,  the  following  securities : 
{Here  insert  schedule  of  securities  in  the  same  manner  as  in 
the  schedule  annexed  to  the  petition.) 

and  that  the  aforesaid  securities  are  held  by  the  said 

'JVust  Company,  subject  to  the  control  of  the  Surrogate's  Court 
of  the  County  of  Essex,  pursuant  to  the  aforesaid  order  of  that 
court. 


Form   78d.      Petition   by  Administrator   to   Obtain   Possession   of 
Securities  Deposited.  c 

Essex  County  Surrogate's  Court. 

In  the  matter  of   the   estate'  of  ")  r)n  I'etition  to  Obtain  v'^e- 
John  Doe,  deceased.  j  cinilies  Deposited. 

Petition. 


I026  Probate  Law  and  Practice. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  WilHam  Doe,  of  the of ,  in 

the  County  of    and  State  of    ,  .respectfully 

shows  that : 

1.  Your  petitioner  is  the  administrator  of  the  estate  of  John 

Doe,  deceased,  and  by  an  order  of  this  court  made  on  the 

day  of    ,   19...,  he  was  directed  to  deposit  certain 

securities  belonging  to  the  said  estate  with  the Trust 

Company,  a  corporation  of  the  State  of  New  Jersey  and 
the  bond  of  your  petitioner  was  thereupon  fixed  at  the  sum  of 
sixty  thousand  dollars  ($60,000.). 

2.  The  securities  named  in  the  aforesaid  order  of  this  court 

were  duly  deposited  by  your  petitioner  in  the  aforesaid 

Trust  Company,  as  required  by  said  order. 

3.  Your  petitioner  has  in  his  possession  ten  bonds  of  the 
City  of  Newark,  valued  at  the  sum  of  eleven  thousand  dollars 
($11,000.),  which  he  purchased  with  a  portion  of  the  cash  left 
by  the  said  intestate,  which  said  l^onds  were  not  included  among 
those  deposited  by  your  petitioner,  as  aforesaid. 

4.  Among  the  securities  deposited  with  the  said Trust 

Company  are  ten  certain  bonds  of  the  Town  of  Montclair, 
valued  at  the  sum  of  ten  thousand  dollars  ($10,000),  which  said 
bonds  are  about  to  mature  and  which  your  petitioner  desires 
to  obtain  possession  of  for  the  purpose  of  presenting  the  same 
for  payment. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
•directing  and  authorizing  the  aforesaid  Trust  Company  to 
deliver  to  your  petitioner  the  said  ten  bonds  of  the  Town  of 
Montclair  of  the  value  of  ten  thousand  dollars  ($10,000.),  upon 

the  deposit  with  the  said Trust  Company  of  the 

aforesaid  ten  bonds  of  the  City  of  Newark  of  a  value  of  eleven 
thousand  dollars  ($11,000.). 

Dated ,  WiLLiAisr  DoK. 

T«).  .  . 


State  of  New  Jersey 
County  oe  Essex 


''  1  ss. 


William  Doe,  of  full  age,  being  duly  sworn  according  to  law 
upon  his  oath,  deposes  and  says  that  he  is  the  petitioner  in  the 


William  Doe. 


Reduction-  of  Bonds.  1027 

foregoing  })etitioii   named   and   that   the   matters   therein   con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this' 

day  of  

19  •  •  •,  cat ,  before 

me, 

J.  C.  F., 

Notary  Public  of  X.  J. 

If  the  administrator  desires  for  any  purpose  to  obtain  })osses- 
sion  of  securities  deposited  and  has  no  securities  in  his  hands 
with  which  to  replace  those  deposited,  the  petitioner  should 
recite  the  balance  of  the  estate  in  his  hands  at  the  time  of 
making  the  application  and  the  court  will  require  that  before 
making  the  order  authorizing  the  delivery  to  him  of  the  secur- 
ities that  the  administrator  enter  into  additional  bond  sufficient 
to  cover  the  balance  of  the  estate  in  his  hands  and  the  value  of 
the  securities  he  seeks  to  obtain  possession  of. 


Form    78e.      Order    Directing    Depositary    to    Deliver    Securities 
to  Administrator. 

Essex  Countv  Orphans'  Court. 

In  the  matter  of   the   estate  of  |  On  Petition  to  Obtain  Se- 
John  Doe,  deceased.  J  curities  Deposited. 

Order  Directing  Depositary 
to  Deliver  Securities  to 
Administrator. 

Upon  reading  and  tiling  the  petition  of  William  Doe.  ad- 
ministrator of  the  estate  of  John  Doe,  deceased,  whereby  it 
appears  that  it  is  necessary  for  the  proper  management  of  the 
estate  of  the  said  John  Doe,  deceased,  that  the  said  adminis- 
trator obtain  possession  of  ten  certain  bonds  of  the  Town  of 
Montclair  of  the  value  of  ten  thousand  dollars  ($10,000.) 
and  that  the   said   administrator  desires  to   deposit   with   the 

said   Trust  C(Miipany  ten  certain  bonds  of   the 

City    of    Newark    of    the    value    of    eleven    thousand    dollars 


I028  Probativ  Law  and  Practice. 

($11,000.),   in  lieu  of  the  aforesaid  bonds  of   the   Town  of 

Montclair   now   on   deposit   in   the   said    Trust 

Company. 

It   is   thereupon   on   this    day   of    ,    19.  .  ., 

ORDERED  that  the  said  WilHam  Doc,  administrator  as  afore- 
said deposit  with  the  said   Trust  Company  the 

said   ten   bonds   of   the   City   of    Newark   and   that   the    said 

Trust  Company  thereupon  deHver  to  the  said 

William   Doe,   administrator   as   aforesaid,   the   aforesaid   ten 
bonds  of  the  Town  of  Montclair  now  held  by  it  pursuant  to 

the  order  of  this  court  made  on  the day  of , 

19 J-  G.  S.,  Jr., 

Surrogate. 


IV.  SECURITY  BY  EXECUTORS. 

Form    79.       Petition    for    Order    Requiring    Executor    to     Give 
Security. 

[See  Orphans'  Court  Act,  section  140,  page  312,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  estate  of 
John  Doe,  deceased. 


On  Petition  for  Order  Re- 
>>  quiring   Executor    to    Give 
Security. 

Petition. 


The  petition  of  James  Doe,  of  the   of   ,  in 

the  County  of and  State  of ,  one  of  the  legatees 

in  the  last  will  and  testament  of  John  Doe,  deceased,  respect- 
fully shows  that : 

1.  John    Doe,    late   of   the   county   of    Essex,    died   on   the 

day  of ,  19.  .  .,  having  first  duly  executed  his 

last  will  and  testament,  which  was  duly  admitted  to  probate 
by  the  Surrogate  of  the  County  of  Essex,  and  letters  testa- 
mentary thereon  issued  to  William  Doe,  the  executor  therein 
named. 

2.  On  the day  of ,  19.  . . .  the  said  William 

Doe,  executor  as  aforesaid,  loaned  to  one  X.  Y.  the  sum  of 


Security  by  Executors.  1029 

dollars,  taking  from  him  his  promissory  note,  pay- 
able on  demand,  and  the  said  William  Doe,  executor  as  aforer 
said,  has  deposited  funds  of  the  estate  in  his  personal  bank 
account,  thereby  mingling  the  same  with  his  own  funds ;  and 
vour  petitioner  believes  that  the  property  of  the  said  estate 
of  the  said  John  Doe  in  the  hands  of  the  said  William  Doe, 
executor  as  aforesaid,  is  insecure  and  in  danger  of  being 
wasted. 

Your  petitioner  therefore  prays  that  this  court  may  require 
the  said  William  Doe,  executor  as  aforesaid,  to  give  security 
to  the  Ordinary  of  this  state  by  bond,  with  such  sureties  and 
in  such  amount  as  this  court  shall  deem  proper,  conditioned 
for  the  faithful  performance  by  said  executor  of  his  duty  under 
the  will  of  the  said  testator. 

Dated,  Newark,  N.  J.,  ^^^^^  ^^^ 

, I9--- 

State  of  New  Jersey, 
County  oe  Essex. 


3EY,  j 


James  Doe,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
])etition  named  and  that  the  matters  and  things  contained  there- 
in are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this" 

day  of 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  X.  J. 


James  Doe. 


Form    80.  Rule    Requiring    Executor    to    Show    Cause    Why    He 
Should  Not   Give   Security. 

[See  Orphans'  Court  Act,  section  140,  page  312.  supra.] 

Essex  County  Orphans'  Court. 

7      ^.  .,  r   .1  4^  ^     ^f^  On  Petition  for  Order  Re- 

in  the   matter  of   the   estate   01 

,   ,      ^^         ,  ,  >- quiring   Executor    to    dive 

ohn  Doe,  deceased.  ,, 

Security. 

Rule  to  Shozi'  Cause. 


1030  Probate  Law  and  Practice. 

James  Doe,  one  of  the  legatees  named  in  the  last  will  and 
testament  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 
having  filed  his  petition  alleging  that  the  property  of  the 
estate  of  the  said  John  Doe  in  the  hands  of  William  Doe,  the 
executor  of  the  last  will  and  testament  of  the  said  John  Doe, 
deceased,  is  unsafe,  insecure  and  in  danger  of  being  wasted, 
and  praying  that  the  said  William  Doe  be  required  to  give 
security  as  such  executor. 

It  is,  on  this day  of   ,  19.  •  .,  ordered  that 

William  Doe,  executor  of  the  last  will  and  testament  of  John 
Doe,   deceased,   show   cause   before   the   Orphans'    Court   of 

the  County  of  Essex,  on  the day  of ,  19.  . .,  at 

ten  o'clock  in  the  forenoon,  in  the  Court-House  in  the  City 
of  Newark,  why  he  should  not  be  required  to  give  security 
to  the  Ordinary  of  this  state  by  bond,  with  such  sureties  and 
in  such  amount  as  the  said  court  shall  deem  proper,  con- 
ditioned for  the  faithful  performance  by  him  of  his  duties 
as  executor  of  the  last  will  and  testament  of  John  Doe, 
deceased. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy  of 

this  rule  be  served  upon  the  said  William  Doe  within 

days  from  the  date  thereof.  W.  P.  M., 

Judge. 


Form  81.     Order  Requiring  Executor  to  Give  Security. 

[See  Orplians'  Court  Act,  section  140,  page  312,  supra.] 

Essex  County  Orphans'  Court. 

.     ,  .^   On  Petition  for  Order  Re- 
in the  matter  of  the  estate  of          .  .        -^^         ^       ^     n- 
^  ,      ^         ,             ,  yquinng   Executor   to    Give 
John  Doe,  deceased.  i, 
•^  J  Security. 

Order  Requiring  Bxecutor  to 
Give  Security. 

The  rule  to  show  cause  in  this  matter  having  been  duly 
served  upon  William  Doe,  the  executor  of  the  last  will  of 
John  Doe,  deceased,  and  it  having  been  proved  to  the  satis- 
faction of  the  Orphans'  Court  that  the  property  of  the  estate 


Security  by  Executors.  103  i 

of  John  Doe,  deceased,  in  the  hands  of  the  said  W'iHiani  Doe, 
executor  as  aforesaid,  is  unsafe,  insecure  and  in  danger  of 
being  wasted. 

It  is  thereupon,  on  this day  of ,  19.  .  . .  or- 
dered that  the  said  \\'ilhani  Doe,  executor  of  the  last  will  of 
John  Doe,  deceased,  be  and  he  hereby  is  required  to  give  se- 
curity to  the  Ordinary  of  this  state  in  the  sum  of dol- 
lars, by  bond,  with  sureties  to  be  approved  by  this  court,  con- 
ditioned for  the  faithful  performance  by  the  said  \\'illiam 
Doe  of  his  duty  under  the  will  of  the  said  testator. 

W.  P.  M., 

Judge. 

For  form  of  bond  bv  Executor  see  Form  6. 


V.  PROCEEDINGS  TO  REQUIRE  EXECUTOR  TO  GIVE 
BOND  TO  CO-EXECUTOR. 

Form  82.     Petition  by  Executor  for  Order  Requiring  Co-Executor 
to  Give  Him  Bond  for  Faithful  Performance  of  Trust. 

[See  Orphans'  Court  Act,  section  138,  page  422,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter   of   the   estate   of  "I  On   Petition  of  Co-Execu- 
John  Doe,  deceased.  j  tor  For  Relief. 

Petition. 

To  THE  Orphans'  Court  of  the  County  of  Essex  : 

The  petition  of  William  Doe,  of  the   of    in 

the   County   of    and    State   of    ,    respectfully 

shows  that : 

I.  John  Doe,  late  of  the  County  of  Essex,  deceased,  died 

on  the day  of ,  19.  .  .,  leaving  a  last  will  and 

testament,  wherein  and  whereby  he  appointed  one  James' 
Smith  and  your  petitioner  the  executors  thereof,  and  on  the 

day  of ,  19.  .  . ,  the  said  will  was  duly  admitted 

to  probate  by  the  Surrogate  of  the  County  of  Essex,  and 
letters  testamentary  thereon  issued  to  the  said  James  Smith 
and  your  petitioner,  the  executors  therein  named,  and  the  said 


1032  Probate  Law  and  Practice. 

James  Smith  and  your  petitioner  have  been  acting  as  executors 
under  the  will  of  the  said  John  Doe,  deceased,  since  the^grant 
of  letters  to  them  as  aforesaid. 

2.  On  the day  of ,  19.  .,  the  said  James  Smith 

took  from  the  safe-deposit  box  in  the Trust  Company, 

where  a  portion  of  the  assets  of  the  estate  of  the  said  John 
Doe,  deceased,  are  kept,  certain  jewelry,  the  property  of  the 

said  estate,  valued  at  the  sum  of dollars,  and  sold  the 

same  for  the  sum  of dollars,  and,  as  your  petitioner 

is  informed,  appropriated  the  money  to  his  own  use. 

3.  Your  petitioner  fears  that  he  may  become  liable  to  the 
estate  of  the  said  John  Doe,  deceased,  by  reason  of  the  mis- 
conduct of  the  said  James  Smith,  his  co-executor,  and  prays 
that : 

This  court  may  order  the  said  James  Smith  to  give  a  bond 
to  your  petitioner  conditioned  to  indemnify  him  from  all  loss 
that  may  happen  to  him  by  the  neglect,  default  or  breach  of 
trust  of  his  said  co-executor,  or  a  Hke  bond  to  the  Ordinary 
conditioned  for  the  faithful  performance  of  his  duties  as 
such  executor,  and  foY  the  payment  and  delivery  to  the 
person  that  may  be  entitled  to  receive  the  same  of  any  money  or 
property  that  may  come  to  his  hands  as  such  executor. 

Dated  Newark,  N.  J.,  William   Doe. 

: i9--- 

State  of  New  Jersey,  ) 
County  of  Essbx.      j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and 
belief. 


Subscribed  and  sworn  to  this"^ 

day  of ,  1^ 

19  .  .  .,  at ,  before 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


William  Doe. 


Security  nv  Executors.  1033 

Twenty  days  notice  of  this  application  must  be  given  to 
the  co-executor.  For  form  of  notice,  see  Form  209a.  For 
proof  of  service,  see  Form  38. 


Form    83.      Order    to    Show    Cause    Why    Executor    Should    Not 
Give   Security   to   Co-Executor. 
[See  Orphans'  Court  Act,  section  138,  page  422,  supra.] 

Essex  County  Orphans'  Court. 


In   the   matter   of   the   estate  of  |  On  Petition  of  Co-Execu- 
John  Doe,  deceased.  J  tor  For  Relief. 

Rule  to  Sho-ii'  Cause. 


^^■ilHam  Doe,  of  the of   in  the  County  of 

and  State  of one  of  the  executors  of  the  last 

will  and  testament  of  John  Doe,  deceased,  having  presented 
his  petition  to  this  court,  alleging  that  Janies  Smith,  his  co- 
executor,  has  wasted  and  mismanaged  the  funds  of  the  estate 
of  the  said  John  Doe,  whereby  the  said  William  Doe  is  liable 
to  suffer  loss  as  such  co-executor,  and  praying  that  this  court 
may  order  the  said  James  Smith,  his  co-executor  as  aforesaid, 
to  give  bonds  to  the  said  William  Doe  to  secure  him  against 
loss  by  reason  of  the  neglect,  default,  or  breach  of  trust  of  the 
said  James  Smith,  his  co-executor  as  aforesaid,  or  to  give  bond, 
to  the  Ordinary  conditioned  for  the  faithful  performance  of 
his  duty  as  such  executor. 

It   is   thereupon,   on   this    day   of    19..., 

ordered  that  the  said  James  Smith  show  cause  before  this  court 

on  the day  of ,  19.  .  . .  why  lie  should  not  give 

bond  to  William  Doe,  his  co-executor  as  aforesaid,  to  secure 
him  from  all  loss  that  may  happen  to  him  by  the  neglect,  default 
or  breach  of  trust  by  the  said  James  Smith,  or  to  give  bond  to 
the  Ordinary  conditioned  for  the  faithful  ])erformancc  of 
his  duties  as  such  executor. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy  of 

this  order  be  served  uj)on  the  said  James  v^mith  within 

days  from  the  date  hereof,  personally  or  by  leaving  the  same 


1034  Probate  Law  and  Practice. 

at  his  residence  or  usual  place  of  abode  with  a  ]:)erson  over  the 
age  of  fourteen  years.  W.  P.  M., 

Judge. 
For  proof  of  service,  see  Form  38. 


Form  84.     Order   Requiring   Co-Executor   to   Give   Bond. 

[See  Orphans'  Court  Act,  section  138,  page  422,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of   the   estate  of  ")  On  Petition  of  Co-Execu- 
John  Doe,  deceased.  j  tor  For  Relief. 

Order  Directing  Co-B.veciitor 
to  Give  Security. 

William  Doe  having  presented  his  petition  herein  alleging 
that  James  Smith,  his  co-executor,  has  wasted  and  mismanaged 
the  estate  of  the  said  John  Doe,  deceased,  whereby  the  said 
William  Doe  may  become  liable  to  the  said  estate  as  co-executor 
with  the  said  James  Smith,  and  praying  relief  in  the  premises, 
and  it  appearing  that  the  rule  to  show  cause  made  herein  has 
been  duly  served,  and  the  court  having  examined  into  the  mat- 
ter and  heard  the  examination  of  witnesses,  and  being  satisfied 
that  the  said  James  Smith  has  wasted  and  mismanaged  the 
estate  of  the  said  John  Doe,  deceased,  whereby  loss  may  accrue 
to  the  said  estate  and  to  the  said  William  Doe,  his  co-executor. 

It  is  thereupon,   on  this    day  of    ,    19.  .  • , 

ordered  that  the  said  James  Smith,  within   days  from 

the  date  hereof,  enter  into  bond  to  the  Ordinary  in  the  sum  of 
dollars  with  two  or  more  sufficient  sureties,  con- 
ditioned for  the  faithful  performance  of  his  duties  as  execu- 
tor, and  for  the  payment  and  delivery  of  any  money  or  prop- 
erty that  heretofore  has  or  hereafter  may  come  to  his  hands  as 
such  executor,  to  the  person  that  may  be  entitled  to  receive  the 
same,  which  bond  shall  be  approved  by  this  court  as  to  sureties 
and  condition  thereof.  W.  P.  M., 

Judge. 

For  bond  of  executor,  see  Form  6. 


Prosecution  of  Bonds.  1035 

VI.     PROSECUTION  OF  BONDS. 

Form  85.     Petition  by  Next  of  Kin  for  Leave  to  Sue  on  Adminis- 
tration Bond  at  Law. 
[See  Orplians"  Court  Act.  section  187,  page  326,  supra.] 

New  Iersev  Prerogative  Court. 


In   the  matter  of   the   estate   of  )   Petition      for      Leave      to 
John  Doe,  deceased.  J  Prosecute  Bond. 

Petition. 


To  E.  R.  W'..  Ordinary  of  the  State  of  New  Jersev : 

The  petition  of  William  Doe,  of  the of in 

the  County  of and  State  of respectfully  shows 

that : 

I.  Your  petitioner  is  one  of  the  next  of  kin  of  John  Doe,  late 
of  the  said  County  of  Essex  deceased,  who  died  intestate. 
Letters  of  administration  upon  the  estate  of  the  said  John  Doe, 
deceased,   were   duly   granted   hy   the    Surrogate   of   the   said 

County  of  Essex  on  the   day  of    ,   19.  . .,  to 

Henry  Doe,  who  took  upon  himself  the  burden  of  administer- 
ing the  estate  of  the  said  John  Doe. 

IL  Upon  the  grant  of  letters  to  him,  the  said  Henry  Doe, 
administrator  as  aforesaid,  gave  bond  to  the  Ordinary  of  the 

State  of  New  Jersey  in  the  penal  sum  of dollars,  with 

A.  B.,  and  C.  D.,  as  sureties,  which  bond  was  duly  filed  in  the 
office  of  the  Surrogate  of  the  said  County  of  Essex,  and  is  con- 
ditioned according  to  law,  as  by  a  copy  thereof,  annexed  to  this 
petition  and  made  a  part  thereof,  will  more  fully  appear. 

HL  On  the  ....  day  of ,  19.  .  .,  the  said  Henry  Doe, 

administrator  as  aforesaid,  presented  to  the  Orphans'  Court  of 
the  said  County  of  Essex  his  final  account,  showing  a  balance 

in  his  hands  for  distribution  of   dollars,  which  was 

duly  allowed  by  the  said  court  on  the  day  last  mentioned,  at 
which  time  the  said  Orphans'  Court  made  its  decree  ordering  a 
distribution  of  the  estate  of  said  deceased,  as  bv  the  said  decree, 
a  copy  of  which  is  hereto  annexed,  will  more  fully  aj)poar. 

IV.  Your  petitioner,  as  one  of  the  next  of  kin  of  the  said 
John   Doc.  deceased,  is  entitled  to  share  in  the  suri)lus  of  the- 


1036  Probate  Law  and  Practice. 

said  estate,  and  has  duly  tendered  to  the  said  Henry  Doe,  ad- 
ministrator as  aforesaid,  a  proper  refunding  bond  therefor,  as 
required  by  law,  but  the  said  Henry  Doe,  administrator  as 
aforesaid,  has  refused  to  pay  to  said  petitioner  the  distributive 
share  of  said  estate  to  which  he  is  entitled  or  any  part  thereof. 
Your  petitioner  therefore  prays  that  an  order  may  be  made 
permitting  him  to  prosecute  the  bond  given  by  the  said  Henry 
Doe,  administrator  as  aforesaid,  by  an  action  at  law  thereon  in 
a  court  of  record  of  this  state  to  recover  the  value  of  the  prop- 
erty so  received  by  said  administrator  and  not  duly  adminis- 
tered by  him. 

Dated  Newark,  N.  J.,  William  Doe. 
, ,  I9--- 


State  oe  New  Jersey 
County  oe  Essex 


Ev,  ■) 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  contained  there- 
in are  true  to  the  best  of  his  knowledge  and  belief. 


William  Doe. 


Subscribed  and  sworn  to  this"^ 
day  of , 

19.  .  .,  at  Newark,  N.  J-,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Annex  a  copy  of  the  bond  and  of  the  decree  of  distribution. 


Form  86.     Petition  of  Creditor  for  Leave  to  Sue  on  Administra- 
tion Bond. 

[See  Orphans'  Court  Act,  section  187.  page  326.  supra.] 

New  Jersey  Prerogative  Court. 

In  the  matter  of   the   estate   of  )  On   Petition   for  Leave  to 
John  Doe,  deceased.  j  Prosecute  Bond. 

Petition. 


Prosecution  of  Bonds.  1037 

To  E.  R.  \\'..  Ordinar}-  of  the  State  of  New  Jersey: 

The  petition  of  W'ilHam  Smith,  of  the  City  of  Newark,  in 
the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : 

1.  John  Doe,  late  of  the  County  of  Essex,  deceased,  died  in- 
testate, on  or  ahout  the   day  of   I9-  •  • ,  and 

letters  of  administration  upon  his  estate  were  dul}'  issued  hy 
the  Surrogate  of  the  said  County  of  Essex  to  \\'illiam  Doe,  on 

the day  of ,  19.  .  . ,  who  duly  entered  into  bond 

to  the  Ordinary  in  the  sum  of   dollars,  which  bond 

is  hied  in  the  office  of  the  Surrogate  of  the  said  Countv  of 
Essex,  and  is  conditioned  according  to  law  as  by  a  copy  there- 
of hereunto  annexed  and  made  a  part  hereof  will  more  fully 
appear. 

2.  On  the day  of ,  19.  .  . ,  \Mlliam  Doe,  the 

administrator  aforesaid,  filed  in  the  office  of  the  Surrogate  of 
the  County  of  Essex  an  inventory  of  the  personal  estate  of 

said   deceased,   amounting   to   the   sum   of    dollars; 

but  the  said  William  Doe,  administrator  as  aforesaid,  has 
not  exhibited  an  account  of  his  administration,  although  your 
petitioner  has  caused  a  citation  to  be  issued  out  of  the  Orphans' 
Court  of  the  said  County  of  Essex  to  compel  him  so  to  do. 

3.  On  the    day  of    ,    19.  .  .,  and  during  the 

lifetime  of  the  said  John  Doe,  deceased,  your  petitioner  loaned 

him  the  sum  of   dollars  upon  his  note  payable  upon 

demand.  The  said  John  Doe  did  not  repay  to  your  petitioner 
any  portion  of  the  said  sum  so  loaned  him  by  your  petitioner 
as  aforesaid.  After  the  death  of  the  said  John  Doe,  your 
petitioner  duly  presented  his  claim  upon  said  note  to  the  said 
William  Doe,  administrator  of  the  said  John  Doe  as  aforesaid, 
but  the  said  William  Doe  has  wholly  failed  and  neglected  to 
pay  the  sum  so  due  upon  said  note  to  your  petitioner,  "or  any 
part  therecjf ;  l)y  reason  whereof  the  bond  given  by  the  said 
William  Doe,  administrator  as  aforesaid,  has  become  forfeited, 
and  your  petitioner  has  been  aggrieved  by  such  forfeiture. 

Your  petitioner  therefore  prays  that  ;ui  order  may  be  made 
permitting  him  to  prosecute  the  said  bond  given  by  the  said 
William  l^oe,  administrator  as  aforesaid,  by  an  action  at  law 
thereon  in  a  court  of  record  in  tliis  state  to  recover  the  value 


1038  Probate  Law  and  Practice. 

of   the  property   so   received   by   said   administrator   and   not 
duly  administered  by  him. 

Dated  Newark,  N.  T-, 

William  Smith. 
, ,  i9--- 


State  oe  New 
County  of  E 


Iersev,  ) 
ssEx.       J 


WilHam  Smith,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this^ 

day  of  

19.  .  . ,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Annex  copy  of  bond. 


'  y  William   Smith. 


Form  87.     Order  for  Leave   to   Prosecute  Administration   Bond. 

[See  Orphans'  Court  Act,  section  187,  page  326,  supra.] 

New  Jersev  Prerogative  Court. 

In  the  matter  of  the  estate  of  |  On  Petition   for  Leave  to 
John  Doe,  deceased.  J  Prosecute  Bond. 

Order  to  Prosecute  Bond. 


Upon  reading  and  filing  the  petition  of  William  Doe.  where- 
by it  appears  that  he  is  one  of  the  next  of  kin  of  John  Doe, 
late  of  the  County  of  Essex  and  State  of  New  Jersey, 
deceased,  and  that  letters  of  administration  upon  the  estate 
of  the  said  John  Doe  were  duly  granted  to  Henry  Doe  by  the 
Surrogate  of  the  said  County  of  Essex,  and  that  the  said 
Henry  Doe  took  upon  himself  the  burden  of  the  administra- 
tion of  said  estate,  and  filed  his  final  account  with  the  Surro- 
gate of  the  County  of  Essex,  which  was  duly  allowed  by 
the  Orphans'  Court  of  the  said  County  of  Essex,  whereby  it 


Prosecution  of  Bonds.  1039 

appears  that  there  is  a  balance  in  his  hands  for  distribution 

amounting  to  the  sum  of   dollars. 

And  it  further  appearing  that  the  said  Orphans'  Court  of 
the  County  of  Essex  decreed  a  distribution  of  the  estate  of 
said  deceased,  and  that  the  said  William  Doe  is  entitled  to  a 
share  of  the  proceeds  of  said  estate,  but  that  the  said  Henry 
Doe,  administrator  as  aforesaid,  has  refused  and  neglected  to 
pay  to  the  said  William  Doe  the  distributive  share  in  said  estate 
to  which  he  is  entitled  as  aforesaid,  although  the  said  William 
Doe  has  duly  tendered  to  the  said  Henry  Doc,  administrator  as 
aforesaid,  a  proper  refunding  bond  therefor  as  required  by 
law. 

It  is  thereupon,  on  this day  of   ,  19.  .  .,  on 

motion  of    proctor  of  said  petitioner,  ordered,  that 

the  said  William  Doe  be,  and  he  is  hereby  permitted  to 
prosecute  an  action  at  law  in  the  name  of  the  Ordinary  in  a 
court  of  record  of  this  state  upon  the  bond  given  by  the  said 
Henry  Doe.  administrator  as  aforesaid,  and  now  on  file  in  the 
office  of  the  Surrogate  of  the  County  of  Essex,  at  the  expense 
of  the  said  William  Doe,  and  that  the  moneys  recovered  in 
such  action  be  paid  into  this  court,  to  be  applied  towards 
making  good  the  damages  sustained  by  the  non-performance 
of  the  condition  of  said  bond  in  such  manner  as  this  court 
shall  by  its  decree  direct. 

And  it  is  further  ordered  that  said  petitioner  forthwith  enter 

into  bond  to  the  Ordinary  in  the  sum  of    dollars, 

conditioned  to  save  the  Ordinary  harmless  against  all  loss  or 
liability  for  any  costs  or  charges  that  may  be  incurred  by  said 
prosecution,  which  said  bond  shall  be  approved  as  to  the  form 
and  security  thereof  by  the  r)rdinary  and  tiled  with  the  reg- 
ister of  this  court.  E.  R.  W., 

Ordinarv. 


Form  88.     Bond  to  Ordinary  for  Costs  of   Suit. 

Know  .m.i,  mkx  i;n-  'iifi'.sk,  i'ki-;si",n  ts 

That  we,  William  Doc  of  the  City  of  Newark  in  the  County 
of  Essex  and  State  of  New   |ersey.  as  ])rincipal.  and  A    H     of 
^7 


I040  Probate  Law  and  Practice. 

the of in  the  County  of and  St^ate  of 

New  Jersey,  and  C.  D.,  of  the    of    ,  in  the 

County  of and  State  of ,  as  sureties,  are  held 

and  firmly  bound  unto   the   Ordinary  of   the   State  of   New 

Jersey  in  the  sum  of    dollars  lawful  money  of  the 

United  States  of  America,  to  be  paid  to  the  said  Ordinary,  his 
successors  in  office  and  assigns,  to  which  payment  well  and 
truly  to  be  made  we  do  bind  ourselves  and  each  of  our  heirs, 
executors  and  administrators  jointly  and  severally  firmly  by 
these  presents. 

Sealed  with  our  seals  and  dated  this day  of , 

in  the  year  of  our  Lord,  one  thousand  nine  hundred  and 

Whereas  by  an  order  of  the  Ordinary  of  the  State  of  New 

Jersey,  made  on  the day  of ,.19.  .  .,  upon  the 

petition  of  William  Doe.  it  was  ordered  that  the  said  William 
Doe  be  permitted  to  prosecute  an  action  at  law  in  the  name  of 
the  Ordinary  on  a  certain  administration  bond  given  by  Henry 

Doe   as   principal,   with    and    as    sureties 

in  the  matter  of  the  administration  of  the  estate  of  John  Doe. 

deceased,  and  dated  the day  of ,  19.  . . ,  at  the 

expense  of  the  said  William  Doe. 

Now  therefore,  the  condition  of  this  obligation  is  such  that  if 
the  said  William  Doe,  A.  B.,  or  C.  D.,  or  any  of  them  shall 
fully  pay  and  satisfy  all  legal  costs  and  charges  that  may 
be  incurred  by  or  on  behalf  of  said  Ordinary  in  the  prose- 
cution of  the  action  at  law  about  to  be  brought  as  aforesaid 
upon  said  administration  bond,  and  shall  indemnify  and  save 
harmless  the  said  Ordinary  and  his  successors  from  any  costs 
or  charges  that  may  be  incurred  by  the  prosecution  of  said 
bond  and  from  any  and  all  loss  and  liability  for  or  on  account 
thereof,  then  this  obligation  to  be  void,  otherwise  to  remain 
in  full  force. 


Signed,   sealed  and   delivered   in 
the  presence  of 


William 

Doe 

[^. 

s.] 

A.B. 

[L- 

s.] 

CD. 

[L. 

s.] 

Add  justification  of  sureties  as  in  Form  7. 


Prosecution  of  Bonds.  1041 

Form  89.     Petition  to  Assess  Damages  on  a  Judgment  at  Law  on 
an  Administrator's   Bond. 

New  Jersev  Prerogative  Court. 

^       ,  .     ,  .^   On  Petition  for  Assessment 

In   the  matter  ot   the   estate  ot  .  ._,  .... 

^  ,      ^.^         ,  ,  '     >      ot  Damages  on  Adnimis- 

ohn  Doe,  deceased.  •        t^     , 

■'  I       tration  Bond. 

Petition. 

To  E.  R.  W.,  Ordinary  of  the  State  of  New  Jersey: 

The  petition  of  WiUiam  Doe  of  the of in 

the  County  of   and  State  of  New  Jersey,  respectfully 

shows  that : 

1.  He  is  one  of  the  children  and  next  of  kin  of  John  Doe, 
late  of  the  County  of  Essex,  deceased,  who  died  intestate. 
In  pusuance  of  the  order  of  this  court  in  the  above  entitled 
matter  made  on  the day  of  ,  19.  .  . ,  your  pe- 
titioner caused  an  action  to  be  brought  in  the  Circuit  Court 

of  the  County  of    {or  as  the  case  may  be)   in  the 

name  of  the  Ordinary  of   the   State  of   New  Jersey  against 

Henry    Doe,    as   principal,    and    and    ,    as 

sureties  on  the  bond  in  said  order  mentioned  given  by  them 
and  conditioned  for  the  faithful  administration  of  the  estate 
of  the  said  John  Doe,  deceased. 

2.  Judgment   final    in    said    suit    was    entered    against    said 

defendants  for  the  sum  of    dollars,  the  penalty  of 

said  bond,  with  costs,  which  were  taxed  at  the  sum  of 

dollars,  as  will  appear  by  a  copy  of  the  record  of  said  judgment 
hereto  annexed  and  made  a  part  hereof. 

3.  On  the day  of  the ,  the  Orphans'  Court  of 

the  County  of  Essex  by  its  decree  made  upon  the  settlement 
and  allowance  of  the  account  of  the  said  administrator  of  the 
personal  estate  of  the  said  deceased,  ascertained  and  de- 
termined that  there  was  a  balance  of  said  estate  in  the  hands 
of  said  administrator  for  distribution  among  the  next  of  kin  of 

the  said  deceased,  amounting  to dollars,  as  will  more 

fully  appear  from  a  co])y  of  said  order  hereunto  annexed;  and 
the  costs  of  your  j^etitioner  in  certain  proceedings  brought 
by  him  to  compel  the  said  Henry  Doe,  administrator  as  afore- 


I042  Probate  Law  and  Practice. 

said,  to  render  the  aforesaid  account  in  the  Orphans'  Court 
have  been  taxed  by  the  clerk  of  said  court  at  the  sum  of 
dollars  and cents,  as  appears  in  the  copy  there- 
of hereunto  annexed  and  made  a  part  hereof. 

4.  The  said  money  so  ascertained  and  determined  by  said 
Orphans'  Court  to  be  distributed  among  the  next  of  kin  of 
deceased  by  the  said  administrator  is  still  unpaid ;  by  reason 
whereof  the  obligors  in  said  bond  are  liable  for  the  payment 
thereof,  and  that  sum  should  be  assessed  as  damages  in  this 
suit  upon  said  bond  against  them,  together  with  all  costs 
incurred  in  said  suit  upon  said  bond,  and  a  proper  and  reason- 
able counsel  fee  to  the  counsel  of  your  petitioner  in  said  suit 
and  the  proceedings  in  relation  thereto. 

Your  petitioner  therefore  prays  that  damages  be  assessed 
according  to  law  and  the  practice  of  this  court  upon  said 
judgment  by  reason  of  the  breaches  of  the  said  bond,  a  copy 
whereof  is  hereto  annexed  and  made  a  part  hereof,  and  that 
he  may  have  such  other  or  further  relief  in  the  premises  as 
he  may  be  entitled  to. 

Dated  Newark,  N.  J.,  ,,,  ^^ 

•^  William  Doe. 
, ,  i9--- 


State  of  New  Jers?;y 
County  of  Essex 


'  j  ^.y. 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 


>  William  Doe. 


Subscribed  and  sworn  to  this^ 

day  of , 

19.  ...  at  Newark,  N.  J.,  before 
me, 

F.  G.  S.,  Jr., 
Notary  Public  of  N.  J. 

Annex  copy  of  decree  on  account,  copy  of  decree  of  distri- 
bution and  copy  of  judgment  roll  in  suit  on  bond. 


Prosecution  of  Bonds.  1043 

Form  90.     Order  to   Show  Cause  Why  Damages  Should  Not  be 
Assessed    on    Administration    Bond. 

New  Tersev  Prerogative  Court. 

^       ,                        .     ,  ,^   On  Petition  tor  Assessnicnt 

In   the  matter  ot    the   estate  01  I          .  „                      .... 

^  ,      ,-^         ,             ,  r     ot  Damages  on  Admmis- 

ohn  Uoe,  deceased.  •        iT     1 

•^  J       tration  Bond. 

Order  to  Sliozv  Caiisc. 

Upon  reading  and  tiling  the  duly  verified  petition  of  William 
Doe  for  an  assessment  of  the  damages  sustained  by  reason  of 
the  breaches  of  the  bond  given  by  Henry  Doe  as  principal  and 

and as  sureties  for  the  due  administration 

of  the  estate  of  John  Doe,  deceased,  by  the  said  Henry  Doe  as 
the  administrator  thereof,  upon  a  final  judgment  recovered 
upon  said  bond  in  the  Circuit  Court  of  the  County  of  Essex, 
and  praying  for  such  other  relief  as  he  may  be  entitled  to  in 
the  premises. 

It  is  on  this day  of ,  19.  .  .,  on  motion  of 

proctor  of  the  said  petitioner,  ordered  that  the  said 

and  ,  obligors  upon  said  bond  and  defend- 
ants in  the  suit  thereon,  show  cause,  if  any  they  have,  before 
the  Ordinary  of  the  State  of  New  Jersey  at  the  State-House 

in  the  City  of  Trenton  on  the day  of ,  at  the 

hour  of  ten  o'clock  A.  AL,  or  as  soon  thereafter  as  counsel 
can  be  heard,  why  the  damages  on  the  aforesaid  judgment  by 
reason  of  the  several  breaches  of  the  said  bond  should  not  be 

assessed  against  them  at  the  sum  of    dollars,  or  at 

such  other  sum  as  may  be  equitable  and  just,  beside  pe- 
titioner's costs  and  a  reasonable  counsel  fee  to  his  proctor  here- 
in and  why  the  said  petitioner  should  not  have  such  other 
relief  as  he  may  be  entitled  to,  and  it  is  further  ordered  that  a 

cojjy  of  this  order  ]je  served  upon  the  said and 

within    days  from  the  date  hereof. 

E.   R.   W., 
Ordinary. 


1044  Probate  Law  and  Practice. 

Form  91.     Order  of  Reference  on   Petition  to  Assess   Damages 
on  Administration   Bond. 

New  Jersey  Prerogative  Court. 

_       ,  .     ,  .^   On  Petition  for  Assessment 

In  the  matter  01   the  estate  01  I  ,  ^  .... 

^  ,      -r^         ,  ,  >      of  Damas^es  on  Admmis- 

Tohn  Doe,  deceased.  •       tV      , 

J       tration  Bond. 

Order  of  Reference. 

Upon  reading  and  fihng  the  petition  of  WilHam  Doe  for  the 
assessment  of  the  damages  sustained  by  reason  of  the 
breaches  of  a  certain  bond  given  by  Henry  Doe  as  principal 
and  and  as  sureties  for  the  due  ad- 
ministration of  the  estate  of  John  Doe,  deceased,  by  the  said 
Henry  Doe,  as  administrator  thereof,  upon  a  final  judgment 
recovered  upon  said  bond  in  the  Circuit  Court  of  the  County  of 
Essex,  and  praying  for  such  other  relief  as  he  may  be  en- 
titled to. 

It  is,  on  this day  of ,  19.  .  . ,  ordered  that  it 

be  referred  to ,  one  of  the  masters  in  chancery  of  this 

state,  to  ascertain  the  amount  of  the  damages  sustained  by 
reason  of  the  breaches  of  the  bond  aforesaid,  and  to  make 
his  report  thereof  to  the  Ordinary  with  all  convenient  speed. 

E.  R.  W., 
Ordinarv. 


Form  92.     Master's  Report. 

New  Jersev  Prerogative  Court. 

^       ,  ,     ,  A   On  Petition  for  Assessment 

in   the   matter  of   the   estate  of  ^  „  a  1    •    ■ 

^  ,      ^         ,  ,  /^      of  Damages  on  Admmis- 

|ohn  Doe,  deceased.  •        tV      1 

I       tration  Bond. 

Master's  Report. 

In  pursuance  of  an  order  of  the  Ordinary  of  the  State  of 

New  Jersey  made  in  this  matter  on  the day  of 

19...,  whereby  it  was  referred  to  the  subscriber,  one  of  the 
masters  in  chancery  of  New  Jersey,  to  ascertain  the  amount  of 
damages   if   any   sustained   by   reason   of    the   breaches   of   a 


Prosecution  of  Bonds.  104; 

certain   bond  given   by   Henry   Doe,   as   administrator   of   the 

estate  of  John  Doe,  deceased,  with and as  sureties 

thereon,  I  hereby  report  that  I  have  been  attended  by 
proctor  of  the  petitioner,  and  by    proctor  of  the  re- 
spondent, and  in  their  presence  have  examined  the  matters  so 
as  aforesaid  referred  to  me. 

And  I  further  report  that  the  proctor  for  the  petitioner 
produced  before  me  {here  state  the  character  of  the  exhibits 
produced  in  their  order)  and  I  find  from  the  exhibits  so  pro- 
duced and  from  the  depositions  taken  before  me,  which  are 

h.ereto  annexed,  and  do  hereby  report,  that  on  the day 

o^    >   I9---.  there  remained  in  the  hands  of  Henry 

Doe,  administrator  of  the  said  John  Doe,  deceased,  the  sum  of 
dollars,  for  which  amount  the  said  Henry  Doe,  ad- 
ministrator as  aforesaid,  and and sureties, 

were  liable  upon  the  bond  given  by  them  to  the  Ordinary ;  and 
I  further  report  that  the  interest  on  said  sum  of  money  last 

aforesaid  to  the  date  of  this  report  is   dollars,  and 

that  the  sum  of dollars  is  the  damages  sustained  by 

reason  of  the  breaches  of  said  bond.  Respectfully  submitted, 
this day  of ,  19.  .  .. 

R.  S.. 
Master  in  Chancery  of  New  Jersey. 


Form   93.      Order   to    Confirm   Report   Nisi. 

New  Jersey  Prerogative  Court. 

In   the   matter  of   the   estate   of)  ^n  Petition  for  Assessment 
John  Doe,  deceased.  f      ""^  Damages  on  .\dminis- 

j       tration  Bond. 

Order  to  Coiifinii   Report  Nisi. 

Upon  reading  and  filing  a  report  made  in   this  matter  by 

one  of  the  masters  in  chancery  of  this  state  on  the 

day  of ,  19.  . . 

It  is,  on  this day  of   ,  19.  .  .,  ordered  that 

said  report  shall  stand  in  all  things  confirmed  unless 


1046  Probate  Law  and  Practice. 

and (the  respondents)  shall  within  ten  days  after  serv- 
ice upon  them  of  a  copy  of  this  order,  show  cause  to  the  con- 
trary. E.  R.  W., 

Ordinary. 


Form  94.     Exceptions  to  Report. 

New  J  Erse  V  Prerogative  Court. 


In   the  matter  of  the   estate   of 


On  Petition  for  Assessment 

■      of  Damages  on  Adminis- 
Tohn  Doe,  deceased.  ^      .        ,j      , 

-'  I        tration  Bond. 

Exceptions  to  Report. 

Exceptions  taken  by  ....  and respondents  in  this  mat- 
ter, to  the  report  made  therein  on  the   ....   day  of   

19.  .  .,  by ,  one  of  the  masters  in  chancery  of  New 

Jersey : 

I.  Exception  is  taken  to  said  report  because  the  said  master 
has  therein  reported  (set  up  the  zvords  of  the  report)  whereas 
he  should  have  reported  (insert  the  matter  ivhich  exceptant 
contends  the  master  should  Jiave  reported). 

In  all  of  which  particulars  the  report  of  the  said  master  is 
erroneous,  and  the  exceptant  appeals  therefrom  to  the  judg- 
ment of  the  Ordinary. 

{Signature  of  Proctor). 


Form  95.     Order   Confirming   Master's   Report   and   Establishing 
Amount  of  Damages. 

New  Jersey  Prerogative  Court. 

-^   On  Petition  for  Assessment 
In   the  matter  of   the   estate  of  I  .  ^-^  a  j    •    • 

>      of  Damages  on  Admmis- 
Tohn  Doe,  deceased.  ^      .        -o      , 

I        tration  Bond. 

Order   Confirming   Master's 
Report. 

It  appearing  that  by  an  order  made  on  the  ....  day  of 

19.  .  .,  it  was  referred  to   one  of  the  masters  of  this 


Prosecution  of  Bonds.  1047 

court,  to  ascertain  and  report  the  aniount  of  damages  sus- 
tained by  reason  of  the  breaches  of  a  certain  bond  given  bv 
Henry  Doe,  administrator  of  the  estate  of  John  Doe,  deceased, 
for  the  faithful  performance  of  his  duty  as  such  administra- 
tor ;  that  exceptions  to  said  report  were  duly  filed  ;  and  the  mat- 
ter coming  on  to  be  heard  upon  the  said  report  and  the  excep- 
tions thereto,  and  the  Ordinary  having  considered  the  same. 

It  is,  on  this day  of ,  19.  .  . ,  ordered  that  the 

said  report  do  stand  in  all  things  confirmed,  and  it  is  further 
ordered  and  adjudged  that  the  damages  upon  the  final  judg- 
ment entered  in  the  Essex  County  Circuit  Court  on  the 

tlay  of ,  19.  .  .,  upon  the  aforesaid  administration  bond 

by  reason  of  the  breaches  of  the  said  bond,  be  and  they  are 
hereby  assessed  in  said  suit  of  the  Ordinary  of  the  State  of 

New  Jersey  against  the  said and (defendants) 

at  the  sum  of dollars,  besides  costs  on  final  judgment 

in  the  said  Essex  County  Circuit  Court  to  be  taxed,  and  the 
costs  of  the  proceedings  in  this  court,  also  to  be  taxed,  and 
that  an  execution  issue  forthwith  out  of  the  said  Essex  County 
Circuit  Court  according  to  the  practice  of  said  court,  to  make 
said  damages  and  said  costs  in  the  said  Essex  County  Circuit 
Court  and  in  this  court. 

And  it  is  further  ordered  that  in  the  costs  in  this  court  there 

shall  be  taxed  a  counsel    fee  of    dollars,   which   is 

hereby  allowed  to    ,  proctor  of  petitioner,   and  that 

the  said  sum  of dollars  damages  aforesaid,  together 

with  interest  thereon  and  costs  as  aforesaid  when  collected, 
shall  be  distributed  and  paid  over  in   the   following  manner 

and  to  the  following  persons,  to  wit :     To   ,  j^roctor, 

for  counsel   fee,  the  sum  of    dollars,  and  that  the 

balance  of  said  sum  amounting  to  the  sum  of   dollars 

be  distributed  among and ( the  distributees 

of  intestate)   pursuant  to  the  order  of  distribution  made  by 

the  Orphans'  Court  of  the  County  of  Essex  on  the day 

of ,  19.  .  .,  and  that  without  further  application  to  this 

^■^wrt.  E.  R.   W., 

Ordinary 


1048  Probatk  Law  and  Practice. 

Form  96.     Assessment  of  Damages  on  Administration  Bond. 

New  Jersev  Prerogative  Court. 

^       ,  ,     ,  -^   On  Petition  for  Assessment 

In   the   matter  01   the   estate  ot  .  „  a  ,    •   ■ 

^  ,      „         ,  ,  )^      01  Uamag-es  on  Admmis- 

ohn  Doe,  aeceased.  •        -rT      , 

J        tration  Bond. 

Assessment  of  Damages. 

\\'illiam  Doe,  having  duly  filed  his  petition  for  the  assess- 
ment of  damages  against   and   ,  upon  a  certain 

judgment  entered  against  tliem  in  the  Circuit  Court  of  the 
County  of  Essex  by  reason  of  certain  breaches  of  the  bond 
given  by  Henry  Doe,  the  administrator  of  the  estate  of  John 
Doe,  deceased,  and  the  rule  to  show  cause  made  herein  having 

been  duly  served  upon  the  said   and   and 

the  court  having  taken  testimony  and  considered  the  matter 
and  having  heard  and  considered  the  arguments  of  counsel, 
and  it  appearing  to  the  court  that  there  is  due  from  Henry  Doe, 
administrator  of  the  estate  of  the  said  John  Doe,  deceased, 
a  balance  of  the  estate  of  said  deceased,  amounting,  as  ascer- 
tained by  the  decree  of  the  Orphans'  Court  of  the  County  of 

Essex  made  on  the day  of ,  to  the  sum  of  .... 

dollars,  and  that  said  sum  is  still  unpaid  (Jiere  insert  any  other 
matters  going  to  make  up  the  damages)  and  it  appearing  that 
the  said  sum  is  the  amount  of  the  damages  sustained  by  the 
jjetitioner  and  others  interested  by  reason  of  the  breaches  of 
the  conditions  of  the  said  bond  given  by  Henry  Doe,  ad- 
ministrator as  aforesaid. 

It  is  on  this  ....  day  of ,  19.  .  .,  on  motion  of , 

proctor  for  petitioner,  ordered,  that  the  damages  upon  the 
judgment    entered    in    the    Circuit    Court    of    the    County    of 

Essex  upon  the day  of ,  19.  .,  upon  the  aforesaid 

administration  bond  by   reason   of   the   breaches   of   the   said 

bond  be,  and  they  are  hereby  assessed  at  the  sum  of 

dollars,  besides  costs  in  this  proceeding  to  be  taxed,  and  that 
execution  issue  forthwith  upon  said  judgment  out  of  the  said 
Circuit  Court  according  to  the  practice  of  said  court,  to  make 
such  damages  and  said  costs  in  the  said  Circuit  Court  and  in 
this  court. 


Prosecution  of  Bonds.  1049 

And  it  is  further  ordered  that  a  counsel   fee  of    

dollars  be  allowed  to ,  proctor  for  petitioner  and  that 

the  aforesaid  sum  of dollars  damages  aforesaid  and 

interest  thereon  when  collected,  shall  be  distributed  and  paid 
over  in  the  following  manner  and  to  the   following  persons, 

to  wit :    to    ,  proctor,    for  counsel    fee,   the   sum   of 

dollars.    To and ,  the  distributees 

of  said  intestate  equally  one part  thereof  amounting 

to  the  sum  of   dollars  to  each  of  said  persons  pur- 
suant to  the  order  of  the  Orphans'  Court  of  the  County  of 

Essex  made  on  the day  of   ,  19.  .  . ,  and  that 

without  further  application  to  this  court. 

E.  R.  W., 
Ordinary. 


Form  97.     Certificate  to  Prerogative  Court  by  Surrogate  That  No 
Caveat  Has  Been  Filed. 

[See  Prerogative  Court  Rule  10,  page  13,  supra.] 

Essex  County  Surrogate's  Court. 


State  of  New  Jersey 
County  of  Essex 


«"' } ... 


I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex,  hereby 
certify  that  no  caveat  against  proving  any  paper  writing  as 
the  last  Will  and  Testament  of  John  Doe,  deceased,  has  been 
filed  in  this  office  (or  that  no  dispute  has  arisen  in  respect  to 
the  right  of  guardianship  of  Jane  Doe,  a  minor),  (or  that  no 
dispute  has  arisen  as  to  the  right  of  administration  upon  the 
estate  of  John  Doe,  deceased). 

In  Testimony  Whereof,  I  have  here- 
unto set  my  hand  and  affixed  my  official 

(l.  s.)  seal   of   office,   this    day   of 

,  One  thousand  nine  liundred 

and 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk  of 
the  Surrogate's  Court. 


1050  Probate  Law  and  Practice. 

INVENTORIES. 
I.     OF  EXECUTORS  AND  ADMINISTRATORS. 

Form  98.     Appointment  of  Appraisers  by  Executor  or  Adminis- 
trator and  Approval  of  the  Surrogate. 

[See  Orphans'  Court  Act,  section  59,  page  361,  supra.] 

Essex  County  Surrogate's  Court. 


In   the   matter   of   the   estate  of  ) 


John  Doe,  deceased. 

Appointment  of  Appraisers. 
I,  Jane  Doe,  the  executrix  of  the  estate  of  John  Doe, 
deceased,  hereby  appoint  WilHam  Jones  and  John  Smith,  two 
discreet  and  impartial  persons,  to  make  a  just  appraisement 
of  the  goods  and  chattels,  rights  and  credits,  moneys  and  effects 
of  the  said  John  Doe,  deceased. 

Dated  Newark,  N.  J.,  ^^^^  I^^^ 
, ,  i9--- 

The  appointment  of  the  above-named  appraisers  is  hereby 

approved  this day  of ,  19.  .  . . 

F.  G.  S.,  Jr., 
Surrogate. 
This  form  is  used  in  all  cases  except  where  it  is  desired  to 
set  off  $200  for  the  benefit  of  the  family  of  decedent,  in  which 
case  the   appraisers   must   be   appointed   by   the    Surrogate — 
see  Forms  102  and  103. 


Form  99.     Inventory  and  Appraisement  by  Executor  or  Adminis- 
trator. 

[See  Orphans'  Court  Act,  sections  57  and  58,  page  360,  supra.] 

Essex  County  Surrogate's  Office. 


In   the  matter  of   the   estate  of  ") 


John  Doe,  deceased. 

Inventory  and  Appraisement. 


Inventories.  1051 

An  inventory  and  appraisement  of  the  goods  and  chattels. 

rights  and  credits,  moneys  and  effects  of  John  Doe,  of 

deceased,  made  by  \\'ilHani  Doe,  executor,  and  bv  A.  B.  and 
C.  D.,  appraisers. 

Household  Furniture  and  Chattels. 
Parlor. 

I  Piano $100  GO 

4  Pictures  at  $5  each   20  00 

4  Chairs  at  $5  each    20  00 

etc.,     (enmnerating    specifically     the    furniture 
in  each  room). 

Moneys,  Choses  in  Action,  Securities, 
ETC. 

Cash   money   at   residence    $100  00 

Cash   money  on   deposit   in    Savings 

Bank    -QO  00 

Bond  and  mortgage  dated    made  by   J- 

R.  on  lands  in to  secure  the  sum  of 

$1,000,  payable  one  year  from  date  with  in- 
terest at  5  per  cent i  .000  00 

Note  of  X.  Y.  for  $500,  dated  and 

payable from  date :;oo  00 

Account   against   C.    D 100  00 


Total  $2,340  00 

Dated  Newark,  N.  J., 

19-  ••  William  Doe, 

Executor. 
A.  B. 
CD. 

Appraisers. 


Form  100.     Oath  of  Executor,  Etc.,  to  Inventory. 

[See  Orphans'  Court  .Act.  section  62.  pa^c  361.  supra.] 

State  of  New  Jkpsev,  | 
County  of  Essex.       ( 

William  Doc,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  executor  of  the  last  will 


1052  Probate  Law  and  Practice. 

and  testament  of  John  Doe,  deceased,  in  the  foregoing  in- 
ventory named,  and  that  the  foregoing  is  a  true  and  perfect 
inventory  of  all  and  singular  the  goods  and  chattels,  rights 
and  credits,  moneys  and  efifects  of  the  said  John  Doe,  de- 
ceased, so  far  as  the  same  have  come  to  his  possession  or 
knowledge. 

Subscribed  and  sworn  to  this"^ 

day  of ,  y  William  Doe. 

19.  .  .,  before  me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 

This  affidavit  may  be  taken  before  any  official  authorized  to 
administer  an  oath. 


Form  loi.     Oath  of  Appraisers  to  Inventory. 

[See  Orphans'  Court  Act,  section  62,  page  361,  supra.] 

State  oe  New  Jersey 


County  oe  Essex. 


'  >  ss. 


A.  B.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  one  of  the  appraisers  in  the  fore- 
going inventory  named ;  that  the  goods  and  chattels,  rights, 
credits  and  effects  in  said  inventory  specified  were  by  him 
appraised  at  their  just  and  true  respective  values  according  to 
the  best  of  his  judgment,  and  that  C.  D.,  the  other  appraiser 
in  said  inventory  named,  was  present  at  the  same  time  with 
deponent  and  consented  to  the  said  valuation  and  appraisement. 

Subscribed  and  sworn  to  this^ 

day  of X  A.  B. 

19.  .  .,  before  me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 

This  affidavit  may  be  taken  before  any  official  authorized  to 
administer  an  oath. 


Inventories.  1053. 

II.      WHERE    EXEMPTION    FOR    FAMILY    IS    SET    OFF. 

Form      102.        Petition     for     Appointment      of     Appraisers      by 
Surrogate. 
[See  Orphans'  Court  Act,  section  59,  page  361,  supra,  and  section  60, 
page  366,  supra.] 

Essex  County  Surrogate's  Court. 


]n   the  matter  of   the  estate   of  |  On    AppHcation     for    Ap- 
John  Doe,  deceased.  j  pointment  of  Appraisers. 

Petition  for  Appointment  of  Ap- 
praisers. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  William  Doe  respectfully  shows  that : 
He  is  the  executor  named  in  the  last  will  and  testament 
of  John  Doe,  late  of  the  Coimty  of  Essex,  deceased,  who 
lately  died  leaving  a  family  residing  in  this  state ;  and  it  is 
desired  to  set  ofif  for  the  benefit  of  the  family  of  the  said  John 
Doe,  deceased,  goods  and  chattels  of  the  estate  of  the  said 
John  Doe,  deceased,  to  the  amount  of  two  hundred  dollars. 
Your  petitioner  therefore  prays  that  two  discreet  and  judici- 
ous persons  of  the  said  County  of  Essex,  not  interested  in  the 
estate  of  the  said  decedent  and  not  of  kin  to  his  widow  and 
children,  be  appointed  to  make  an  inventory  and  appraise- 
ment of  the  goods  and  chattels,  moneys  and  efYects  whereof 
the  said  John  Doe  died  seized,  pursuant  to  the  statute  in  such 
case  made  and  provided. 

Dated  Newark,  N.  J.,       '  Willi.xm  Doe. 

, ,  i9--- 

State  of  New  Jersey, 


;ey,  ") 


County  of  Essex.      '' 

William  Doe  being  duly  sworn  according  to  law  upon  his 
oath  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  l)elief. 

Subscribed  and  sworn  to  this"^ 

this day  of ,  19.  . .,  >  William   Doe. 

before  me,  J 

J.  C.  F., 

Notary  I'uIjHc  of  N.  J. 


1054  Probate  Law  and  Practice. 

Form  103.     Appointment  of  Appraisers  by  Surrogate. 

[See  Orphans'  Court  Act,  section  59,  page  361,  supra,  and  section  60, 
page  366,  supra.] 

Essex  County  Surrogate's  Court. 

In   the  matter  of   the  estate  of  )  On    Application     for    Ap- 
John  Doe,  deceased.  j  pointment  of  Appraisers. 

Appointment  of  Appraisers 
by  Surrogate. 

Upon  the  application  of  William  Doe,  executor  of  the  last 

will  and  testament  of  John  Doe,  late  of    ,  deceased, 

who  lately  died  leaving  a  family  residing  in  this  State  ; 

I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex  in  the 
State  of  New  Jersey,  do  hereby  appoint  A.  B.  and  C.  D.,  two 
discreet  and  judicious  persons  of  said  County  of  Essex,  not 
interested  in  the  estate  of  said  deceased  and  not  of  kin  to  his 
widow  or  children,  to  make  an  inventory  and  appraisement 
of  the  goods  and  chattels,  moneys  and  efifects  whereof  such 
decedent  died  possessed,  pursuant  to  the  statute  in  such  case 
made  and  provided. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
of  office  this   day  of   ,  nineteen  hundred  and 


F.  G.  3.,  Jr., 
Surrogate. 

It  is  only  necessary  that  the  appraisers  be  appointed  by  the 
surrogate  in  case  it  is  desired  to  set  oft'  two  hundred  dollars 
of  the  personal  estate  of  a  decedent  for  the  use  of  his  family. 


Form  104.     Oath  of  Appraisers. 

[See  Orphans'  Court  Act,  section  60,  page  366,  supra.] 


State  of  New  Jersey 
County  oe  Essex 


'I  ss. 


A.  B.,  and  C.  D.,  of  full  age,  being  duly  sworn  upon  their 
oaths,  depose,  and  each  for  himself  says  that  they  are  the  ap- 


Inventories.  1055 

praisers  appointed  by  the  Surrogate  as  aforesaid,  and  each  for 
himself  says  that  he  will  faithfully,  honestly  and  impartially 
appraise  the  goods  and  chattels,  moneys  and  effects  whereof 
the  said  John  Doe  died  seized  according  to  the  true  and  in- 
trinsic value  tiiereof  without  reference  to  what  the  same  might 
be  supposed  to  bring  at  a  sale  by  vendue.  A.  B. 

CD. 
Subscribed  and  sworn  to  this^ 

day  of ,  > 

19.  .  .,  before  me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 

This  affidavit  is  only  necessary  in  a  case  where  it  is  desired 
to  set  off  $200.  of  decedent's  estate  for  the  benefit  of  his  family. 
It  may  be  taken  before  any  official  authorized  to  administer 
an  oath. 


Form  105.     List  of  Goods  Selected  for  Family. 

[See  Orphans'  Court  Act,  section  60,  page  366,  supra.] 

The  following  is  a  list  of  the  goods  and  chattels,  moneys 
and  eft'ects  of  the  estate  of  John  Doe,  the  decedent  in  the  fore- 
going inventory  named,  and  selected  therefrom  by  me,  Jane 
Doe,  the  widow  of  the  said  John  Doe,  deceased,  for  the  use 
of  the  family  of  the  said  decedent. 

(Here  enumerate  the  goods  selected,  describing  them  as  in 
the  inventory,  and  giving  their  appraised  value.) 

T.\NE  Doe. 


Form    106.      Oath    of    Executor,    Etc.,    Verifying    List    of    Goods 
Selected  for  Use  of  Family. 
[See  Orphans'  Court  .^ct,  section  62.  page  368.  supra.] 

State  of  New  Jersey,  ) 

>  ss. 
County  of  Essex.      ( 

William  Doe.  being  duly  sworn  according  to  law  u|)on  his 
oath,  deposes  and  says  that  he  is  the  executor  in  the  foregoing 
68 


1056  Probate  Law  and  Practice. 

inventory  named,  and  that  the  goods  and  chattels  in  the  fore- 
going hst  named  and  specified  are  the  goods,  chattels  or  prop- 
erty of  John  Doe,  the  decedent  in  said  inventory  named,  se- 
lected from  said  inventory  by  Jane  Doe,  widow  of  the  said 
John  Doe,  deceased,  for  the  benefit  of  the  family  of  said  de- 
cedent. 

Subscribed  and  sworn  to  this^ 

day  of ,  >  William  Doe. 

19.  .  .,  before  me,  j 

J.  C.  F., 

Notary  Public  of  N.  J. 

This  affidavit  may  be  taken  before  any  official  authorized  to 
administer  an  oath. 


III.     GUARDIANS'  INVENTORIES. 

Form  107.    Inventory  by  Guardian. 

[See  Orphans'  Court  Act,  section  63.  page  364,  supra.] 

Essex  County  Surrogate's  Ofeice. 


In  the  matter  of  the  estate  of  ) 


John  Doe,  a  minor. 

Inventory  of  Guardian. 

The  inventory  of  William  Doe  of  all  the  estate,  real  and 
personal,  which  he  has  received  or  taken  possession  of  as 
guardian  of  John  Doe,  a  minor. 

Personal  Property. 

Bond  and  mortgage  given  by  A.  B.  and  C.  B.,  his 

wife  on  lands  in  the  City  of  Newark $1,000  00 

Cash  in savings  institution 1,000  00 

lO  shares  of  the  capital  stock  of  the  D.  L.,  &  W., 

R.   R 5,000  00 

Real  Estate. 

House  and  lot  known  as  No , St.,  in 

the of ,  valued  at 5,ooo  00 


Inventories.  1057 

Unimproved   tract   of    land    50x100    ft.,    known   as 

Nos , ,   St..  in 

the  City  of i,ooo  00 


Total $13,000  00 

\\'iLLiA.\[  Doe, 

Guardian. 


State  of  New  Jersev 
County  of  Essex 

William  Doe.  being  duly  sworn  according  to  law  ui^on  his 
oath,  deposes  and  says  that  he  is  the  guardian  of  John  Doe,, 
a  minor,  and  that  the  foregoing  is  a  true  and  perfect  inventory 
of  all  the  estate,  real  and  personal,  which  he  has  received  or 
taken  possession  of  as  guardian  of  the  said  John  Doe,  a  minor,, 
as  aforesaid. 

Subscribed  and  sworn  to  this  1 

day  of I 

19.  . .,  at  Newark,  N.  J.,  before 


me. 


William  Doe. 


J.  C.  F., 

Notary  Public  of  N.  J. 


IV.     PROCEEDINGS  TO  COMPEL  FILING  OF 
INVENTORY. 

Form  108.     Petition  Requesting  Surrogate  to   Report  Failure  to 
File  Inventory. 

[See  Orphans'  Court  .\ct.  section  58,  page  362,  supra.     P.  L.  191 1.  page 
734,  page  362,  supra.] 

Essex  County  Surkog.\te"s  Court. 
In   the  matter  of   the  estate  of  ") 
John  Doe,  deceased.  /  ^"  Petition,  etc. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  Jane  Doe  of  the   of   in  the 

County  of and  State  of respectfullv  shows 

that : 


1058  Probate  Law  and  Practice. 

1.  Your  petitioner  is  the  widow  of  John  Doe,  late  of  the 

County  of  Essex,  deceased.     On  the    day  of    , 

19...,  the  will  of  the  said  John  Doe  was  duly  admitted  to 
probate  by  the  Surrogate  of  the  said  County  of  Essex  and 
letters  testamentary  thereon  issued  to  William  Smith,  the 
executor  therein  named.  Your  petitioner  is  one  of  the  legatees 
named  in  the  aforesaid  will  of  John  Doe,  deceased. 

2.  The  said  William  Smith  has  failed  and  neglected  to  file 
an  inventory  of  the  estate  of  the  said  John  Doe,  deceased,  which 
has  come  into  his  hands,  although  more  than  three  months 
have  elapsed  since  the  issue  to  him  of  the  letters  testamentary 
as  aforesaid. 

Your  petitioner  therefore  prays  that  the  Surrogate  may 
report  to  the  Orphans'  Court  the  neglect  of  the  said  William 
Smith,  executor  as  aforesaid,  to  file  his  inventory  within  the 
time  limited  by  law. 

Dated  Newark,  N.  T-  t         t> 

Jane  Doe. 
, ,  i9--- 

State  of  New  Jersey, 
County  oe  Essex. 

Jane  Doe,  being  duly  sworn  according  to  law  upon  her  oath, 
•deposes  and  says  that  she  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  set 
forth  are  true  to  the  best  of  her  knowledge  and  belief. 

Subscribed  and  sworn  to  this"^ 

,,^-^  °,  ■;;■  ;■ ''"."'  >  Jane  Doe. 

1-9.  .  .,  at  Newark,  N.  J.,  before  '^ 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  109.     Report  by  Surrogate  of  Failure  of  Executor,  Etc.,  to 
File  Inventory. 

[See  Orphans"   Court  Act,   section  58,  page  362.  supra.     P.  L..   191 1. 
page  734,  page  362,  supra.] 

Essex  County  Orphans'  Court. 


Inventories.  1059 


i  On  Petition,  etc. 


in   the  matter  of   the  estate 
John  Doe,  deceased. 

Report  by  Siirrocjatc  of  Failure 
of  Executor,  etc.,  to  File  I)i- 
ventory. 

To  the  Orphans"  Court  of  the  County  of  Essex : 

I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex,  do 
hereby  report,  pursuant  to  the  request  of  Jane  Doe,  widow  of 
John  Doe,  deceased,  late  of  the  County  of  Essex,  that  W'ilHam 
Smith,  the  executor  of  the  last  will  and  testament  of  the  said 
John  Doe,  deceased,  has  failed  and  neglected  to  tile  an  in- 
ventory of  the  assets  of  the  said  John  Doe,  deceased,  which 
have  come  into  his  hands  as  such  executor,  for  more  than 
three  months  after  letters  testamentary  issued  to  *  him  as 
aforesaid. 

Respectfully   submitted  this    day  of    ,    ly.  .  . 

F.  G.  S.,Jr., 
Surrogate. 


Form    no.      Order    of    Orphans'    Court    Directing    Surrogate    to 
Cite  Executor,  Etc.,  to   File  inventory. 

[See  Orphans'  Court  Act,   section  58,  page  362,   supra.     P.   L.   191 1. 
page  734,  page  362.  supra.] 

Essex  County  Orphans'  Court. 


tate  of  )  „     „    .  . 

vOn  Petition,  etc. 


In   the   matter  of   the   estc 
John  Doe,  deceased. 

Order  Directing  Surrogate  to 
Cite  Executor  to  File  luvoi- 
tory. 

It  appearing  from  the  report  of  F.  G.  S.,  Jr.,  Surrogate  of 
the  County  of  Essex,  made  upon  the  application  of  Jane  Doe, 
widow  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 
that  William  Smith,  the  executor  of  the  last  will  and  testa- 
ment of  the  said  John  Doe,  deceased,  has  failed  and  neglected 
to  flic  an  inventory  of  the  assets  of  the  estate  of  the  said 


io6o  Pkobatk  Law  and  Practice;. 

John  Doe,  deceased,  which  have  come  into  his  hands,  although 
more  than  three  months  have  elapsed  since  the  grant  of  let- 
ters testamentary  to  him  as  aforesaid,  and  no  reason  appear- 
ing or  being  alleged  to  the  contrary. 

It  is  thereupon,  on  this day  of   ,  One  thou- 
sand nine  hundred  and    ,  orde;red  that  the   Surrogate 

of  the  County  of  Essex  cite  the  said  William  Smith  to  render 
an  inventory  of  the  personal  estate  of  the  said  John  Doe, 
deceased,  which  has  come  into  his   hands  as  such  executor. 

W.   P.   M., 

Judge. 


Form  III.     Citation  to  File  Inventory. 

[See  Orphans'  Court  Act,  section  58,  page  362.  supra,  and  il).,  section 
64,  page  365,  supra.] 

Essex  County  Orphans'  Court. 

State  oe  New  Jersey,  ") 
County  of  Essex,      j 

The  State  of  New  Jersey, 

To  William  Doe,  Administrator  of  the  estate  of 
[L.  S.]  John  Doe.  deceased.  Greeting: 

We  cite  and  command  you,  that  you  file  an  inventory  of 
the  goods,  chattels  and  credits  of  John  Doe,  deceased,  and 
tmless  you  shall  so  do,  that  you  personally  be  and  appear 
before  the  Orphans'  Court,'  to  be  held  at  the  Court  House,  in 

the  City  of  Newark,  in  and  for  the  County  of  Essex,  on 

the  ....  day  of ,  19.  .  . ,  at  ten  o'clock  in  the  forenoon, 

to  show  cause,  if  any  you  have,  why  you  have  not  filed  said 
inventory,  and  to  abide  the  judgment  of  the  said  court  in  the 
premises. 

Witness,  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 

Newark  aforesaid,  this day  of one  thousand 

nine  hundred  and F.  G.  S.,  Jr., 

Surrogate  and  Clerk. 

This  citation  must  be  served  by  Sheriff. 


Barring  Creditors.  io6i 

BARRING  CREDITORS. 

Form  112.     Rule  to  Limit  Creditors. 

[See  Orphans'  Court  Act,  section  d"],  page  558,  supra.] 

Essex  County  Surrogate's  Court. 

r    tlie  matter  of  the  estate  of  1 
•     John  Doe,  deceased.  j 

Ride  to  Limit  Creditors. 

Upon  appHcation  of  William  Doe,  executor  of  the  last  will 
and  testament  of  John  Doe,  deceased. 

It  is  on  this   day  of   ,  19.  .  .,  ordered  that 

the  said  William  Doe,  executor  as  aforesaid,  give  public  no- 
tice to  the  creditors  of  the  estate  of  the  said  John  Doe,  de- 
ceased, to  bring  in  their  debts,  demands  and  claims  against 
his  estate  under  oath,  within  nine  months  from  the  date  here- 
of, by  setting  up  such  notice  in  five  of  the  most  public  places 
in  said  county   for  two  months,  and  also  by  advertising  the 

same  at  least  once  in  each  week  for  the  like  time  in 

one  of  the  newspapef^  of  this  state;  and  it  is  further  ordered 
that  the  aforesaid  notice  shall  be  given  and  advertised  within 
twenty  days  after  the  date  of  this  order. 

F.  G.   S.,  Jr., 
Surrogate. 


Form  113.     Notice  to  Creditors  to  Present  Claims  against  Estate. 

[See  Orphans'  Court  Act,  section  67.  page  558,  supra;    and  Orphans' 
Court  Rule  40,  page  559,  supra.] 

Pursuant  to  the  order  of  F.  G.   S.,  Jr.,   Surrogate  of  the 

County  of  Essex,  made  on  the day  of ,  19.  .  . , 

on  the  application  of  William  Doe,  executor  of  the  estate  of 
John  Doe,  deceased,  notice  is  hereby  given  to  the  creditors  of 
said  deceased  to  exhibit  to  the  subscriber  executor  as  afore- 
said their  debts  and  demands  against  the  said  estate,  under 
oath,    within    nine    months    from    the    date   of    the    aforesaid 


io62  Probate  Law  and  Practice. 

order,  or  they  will  be  forever  barred  of  their  actions  therebr 
against  the  said  subscriber. 

Dated  Newark,  N.  J.,  William  Doe, 

,    iQ.  . .  Executor 

■■        '  ( 

This  notice  must  be  posted  in  five  of  the  most  public  plates 

in  the  county  and  also  published  for  two  months,  at  least  orice 
in  each  week,  in  a  newspaper  circulating  in  said  county.  Tee 
aforesaid  posting  and  publishing  must  be  done  within  20  days 
from  the  date  of  the  order  to  limit  creditors. 

For  proof  of  publication  see  Form  114;    for  proof  of  post- 
ing Form  115. 


Form  114.     Proof  of  Publication  of  Notice. 

[See   Orphans'    Court   Act,   section   70.   page   565.    supra.] 


State  oe  New  Jersey 
County  oe  Essex 


ERSEY, ) 

>  SS. 

SEX.       J 


X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath,  de- 
poses and  says. that  he  is  the  publisher  of  the ,  one  of 

the  newspapers  qf  this  State,  printed  and  published  at 

and  that  the  foregoing  notice  was  printed  and  published  in  the 
said  newspaper  for  two  months,  at  least  once  in  each  week,  the 

first  publication  being  on  the day  of   ,  19.  .  ., 

and  the  last  on  the day  of ,  19.  .  . 

Subscribed  and  sworn  to  this^ 

day  of ...,^  X.  Y. 

19.  . .,  before  me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  115.     Proof  of  Posting  Notices. 

[See    Orphans'    Court    Act,    section    70,    page    565,    supra.] 

State  oe  New  Jersey, 


County  of  Essex.       '' 


"t 


A.  B.,  being  duly  sworn  upon  his  oath  according  to  law,  de- 
poses and  says  that  on  the day  of ,  19.  .  .,  he 


Barring  Creditors.  1063 

posted  true  copies  of  the  foregoing  notice  in  live  of  the  most 
public  places  in   the   said   County   of   Essex,   to   wit:    {insert 
here  list  of  places  zclicre  notice  zuas  posted). 
Svibscribed  and  sworn  to  this 

day  of ,  A.   B. 

19.  .  .,  before  me, 
J.  C.  F., 

Notary  Public  of  X.  J. 


Form   116.     Oath  of   Creditor   Verifying   Claim. 

[See    Orphans'    Court    Act.    section    68,    page    559,    supra.] 

State  of  New  Jersey, 


i 


ss. 
County  of  Essex. 

A.  B.,  being  duly  sworn  upon  his  oath  according  to  law,  de- 
poses and  says  that  he  is  the  creditor  in  the  foregoing  claim 
mentioned,  that  the  goods  and  merchandise  therein  enumer- 
ated were  delivered  to,  and  services  therein  mentioned  were 

performed  for  John  Doe,  late  of ,  deceased  at  the  times 

and  at  the  prices  in  the  foregoing  claim  named ;   and  deponent 
further  says  that  no  part  of  the  foregoing  claim  has  been  paid 

but  that  the  whole  sum  of dollars  therein  named  is 

justly  due  and  owing  to  him. 

Subscribed  and  sworn  to  this^ 

day  of \  A.  B. 

19.  . .,  before  me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form   117:      Notice   by   Executor,   Etc.,   that   Claim    Presented   is 
Disputed. 

[See  Orphans'  Court  Act.  section  71,  page  536,  supra.] 

To  X.  Y. : 

You  are  hereby  notified  that  I  dispute  your  claim,  amount- 
ing to   dollars,  against  the  estate  of  John  Doe,  de- 


1064  Probate  Law  and  Practice. 

ceased,  presented  by  you  to  me  as  executor  of  said  estate. 
Dated  Xewark.  X.  J.. 

, ,  19.  • .  William  Doe. 

Executor. 


Form  118.     Decree  Barring  Creditors. 

[See  Orphans'  Court  Act.  section  70.  page  564.  supra.] 

Essex  County  Surrogate's  Court. 


In  the  matter  of  the   estate 
John  Doe,  deceased. 


Decree  Barring  Creditors. 


It  appearing  that,  by  an  order  made  by  the  Surrogate  of  the 
County  of  Essex  on  the day  of I9-  •  • ,  Wil- 
liam Doe,  executor  of  the  estate  of  John  Doe,  deceased,  was 
ordered  to  give  public  notice  to  the  creditors  of  the  estate  of 
the  said  John  Doe,  deceased,  to  bring  in  their  debts,  demands 
and  claims  against  his  estate  under  oath  within  nine  months 
from  the  date  of  said  order  by  setting  up  such  notice  in  five  of 
the  most  public  places  in  said  county  for  two  months,  and  also 

by  advertising  the  same  at  least  once  in  each  week  in   

one  of  the  newspapers  of  this  state,  for  the  same  time  and 
that  said  notice  should  be  given  and  advertised  within  twenty 
days  after  the  date  of  said  order. 

And  it  further  appearing  that  the  time  in  such  order  lim- 
ited has  expired,  and  it  being  proved  to  the  satisfaction  of  the 
Surrogate  that  said  notice  has  been  set  up  and  advertised  as 
directed. 

It  is  thereupon  on  this day  of ,  19.  . . ,  ordered 

that  all  creditors  of  the  said  John  Doe  who  have  not  brought 
in  their  claims  within  the  time  in  said  order  directed  shall 
be  barred  from  any  action  therefor  against  the  aforesaid  Wil- 
liam Doe  as  such  executor. 

F.  G.  S.,  Jr., 
Surrogate. 


Barring  Creditors.  1065 

RELIEF  OF  BARRED  CREDITORS. 

Form   119.     Petition  by   Barred  Creditor  for   Order  Authorizing 
Suit  on  Refunding  Bond. 

[See  Orphans'  Court  Act,  section  78,  page  580,  supra.] 

Essex  County  Orpii.ans'  Court. 

*^   On     Petition'     of     Barred 
In   the  matter  of   the  estate  of  I   Creditor  for  Order  Author- 


John  Doe.  deceased. 


izing    Suit    on    Refunding 
Bond. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex. 

The  petition   of   X.   Y.,   of   the    of    in   the 

County  of ,  and  State  of   ,  respectfully  shows 

that : 

1.  Your  petitioner  is  a  creditor  of  the  estate  of  John  Doe, 

deceased,  who  died  on  or  about  the day  of    , 

19.  .  .,  leaving  a  last  will  and  testament  wherein  and  whereby 
he  appointed  William  Doe  executor  thereof.  The  said  will  was 
on  the day  of ,  19.  .  . ,  duly  admitted  to  pro- 
bate and  letters  testaiuentary  thereon  issued  to  the  said  Wil- 
liam Doe  by  the  Surrogate  of  the  County  of  Essex. 

2.  On  the day  of   ,  19.  . . ,  a  decree  was 

made  by  the  Surrogate  of  the  said  County  of  Essex,  barring 
all  creditors  whose  claims  against  the  estate  of  the  said  John 
Doe,  deceased,  were  not  proved  within  the  time  limited  by  an 

order  of  the  said  Surrogate  made  on  the day  of , 

19... 

3.  Your  petitioner  has  a  claim  amounting  to dollars 

against  the  estate  of  the  said  John  Doe,  deceased,  for  moneys 
loaned  by  your  petitioner  to  the  said  John  Doe  in  his  lifetime, 
but  your  petitioner  did  not  bring  in  or  prove  his  claim  against 
said  estate  within  the  time  limited  in  said  order,  and  his  claim 
has  been  barred  by  said  decree. 

4.  The  said  John   Doe,  in  and  by  his  last  will  and  testa- 
ment, gave  and  bequeathed  unto  one  R.  S.,  the  sum  of 

dollars,   and    William    Doe,   executor   as   aforesaid,   has   paid 


io66  Probate  Law  and  Practice. 

the  said  legacy  to  the  said  R.  S.,  and  has  taken  from  him  a 
refunding  bond,  which  has  been  duly  filed  in  the  office  of 
the  Surrogate  of  the  said  County  of  Essex. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
authorizing  him  to  bring  suit  upon  such  refunding  bond  in  the 
name  of  the  said  William  Doe,  the  executor  therein  named, 
for  the  recovery  of  the  aforesaid  claim. 
Dated  Newark,  N.  J.,  X.  Y. 


,,  19. 


State  oe  New  Jersev 
County  oe  Essex 


:SEV,  ) 

>  ss. 
X.       I 


X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath. 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


X.  Y. 


Subscribed  and  sworn  to  this"^ 
day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me,  ^ 

F.  R.  S., 

Notary  Public  of  N.  J. 

Five  days'  notice  of  this  application  should  be  given  to  the 
executor  and  to  the  legatee.  For  form  of  notice  see  Form  214 ; 
for  proof  of  service  Form  38. 


Form   120.     Order  Authorizing   Barred   Creditor   to    Sue   on   Re- 
funding Bond. 

[See  Orphans'  Court  Act,  section  78,  page  580,  supra.] 

Essex  County  Orphans'  Court. 


\On     Petition     of     Barred 
Creditor  for  Order  Author- 
John  Doe,  deceased. 

Bond. 

Order  Aitthoricing  Suit  on 
Refunding  Bond. 


Barring  Creditors.  1067 

It  appearing  from  the  petition  of  X.  Y.,  lilcd  herein,  that  the 
said  X.  Y..  is  a  ereditor  of  the  said  estate  of  John  Doe.  de- 
ceased, and  that  his  said  claim  or  demand  has  been  barred  by 
a  decree  of  the  Surrogate  of  said  County  of  Essex  barring  the 
creditors  of  the  aforesaid  estate  from  their  actions  against 
VVilHam  Doe,  tiie  executor  of  said  estate;  and  it  further 
appearing  that  WiUiam  Doe.  the  executor  of  the  last  will  and 
testament  of  the  said  John  Doe.  deceased,  has  paid  to  R.  S.,  a 
legacy  given  him  in  and  by  the  will  of  the  said  John  Doe. 
deceased,  and  has  taken  from  such  legatee  a  refunding  bond 
which  has  been  hied  in  the  office  of  the  Surrogate  of  the 
aforesaid  County  of  Essex;  and  it  further  appearing  that  due 
notice  of  this  application  has  been  given  to  \\'illiam  Doe. 
executor  as  aforesaid,  and  to  R.  S..  the  aforesaid  legatee,  and 
no  reason  appearing  or  being  alleged  to  the  contrary. 

It   is   thereupon   on   this    dav   of    19.  .  . . 

ordered  that  the  said  X.  Y..  be  and  he  hereby  is  authorized 
to  bring  suit  in  the  name  of  William  Doe,  executor  of  said 
John  Doe,  deceased,  upon  the  refunding  bond  given  by  R.  S.. 
as  aforesaid,  to  recover  the  proportion  of  his  debt  which  ought 
to  be  paid  out  of  the  legacy  or  distributive  share  for  which 
said  bond  was  given.  W.  P.  M., 

Judge. 


Form  121.  Petition  for  Relief  by  Barred  Creditor  in  Case 
Executor  Neglects  to  Account  or  Obtain  Decree  for  Distribu- 
tion. 

[See  Orphans'  Court  Act.  section  80,  page  582,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the  estate  of  )  On     I*ctition     of     Barred 
John  Doe,  deceased.  j  Creditor  For  Relief. 

Petition. 

To  the  Orjjhans'  Court  of  the  County  of  Essex: 

The  petition  of  X.  Y..  who  resides  at  N^umber 

wStreet  in  the    of    ,  in  the  County  of    

and  State  of ,  respectfully  shows,  that : 


io68  Probata  Law  and  Practice. 

1.  Your  petitioner  is  a  creditor  of  the  estate  of  John  Doe, 
late  of  the  County  of  Essex,  deceased,  who  died  on  or  about 

the day  of ,  I9-  •  • ,  intestate.     On  the 

day  of   19.  •  •,  the  Surrogate  of  the  said  County  of 

Essex  duly  appointed  William  Doe  administrator  of  the  estate 
of  the  said  John  Doe  deceased  who  has  duly  taken  upon  him- 
self the  burden  of  administering  the  said  estate. 

2.  On  the    day  of    ,    19 a   decree   was 

made  by  the  Surrogate  of  the  said  County  of  Essex  barring 
all  creditors  whose  claims  against  the  estate  of  the  said  John 
Doe,  deceased,  were  not  presented  to  the  said  William  Doe. 
administrator  as  aforesaid,  within  the  time  limited  by  an  order 
of  the  said  Surrogate  made  on  the day  of ,  19.  .  . 

3.  Your  petitioner  has  a  claim  amounting  to dol- 
lars against  the  said  estate  of  John  Doe,  deceased,  for  moneys 
loaned  by  your  petitioner  to  the  said  John  Doe  in  his  life- 
time, which  claim  your  petitioner  did  not  bring  in  or  prove 
against  said  estate  within  the  time  limited  in  said  order,  and 
his  said  claim  has  been  barred  by  said  decree. 

4.  The  said  William  Doe,  administrator  as  aforesaid,  has 
duly  filed  his  account  as  such  administrator,  which  said  ac- 
count was  allowed  by  this  court  on  the day  of , 

19.  .  .,  whereby  it  appears  that  there  is  a  balance  remaining  in 
the  hands  of  the  said  Administrator  amounting  to  the  sum 

of dollars  for  distribution  among  the  next  of  kin  of 

the  said  John  Doe,  deceased ;  but  the  said  administrator  has 
failed  and  neglected  for  more  than  three  months  after  the  final 
settlement  of  his  account  as  aforesaid  to  apply  for  a  decree 
of  distribution  thereon. 

5.  On  the    day  of    ,    19...,   and  after  his 

claim  was  barred  by  the  decree  of  the  Surrogate  as  aforesaid, 
your  petitioner  presented  his  said  claim  to  the  said  William 
Doe,  administrator  as  aforesaid,  but  he  has  wholly  failed  and 
neglected  either  to  pay  the  same,  or  to  notify  your  petitioner 
that  his  said  claim  is  disputed. 

Your  petitioner  therefore  prays  that  this  court  may  in- 
vestigate this  matter  and  the  circumstances  of  the  case  and 
the  condition  of  the  estate,  and  may  order  your  petitioner's 
said  debt  to  be  paid  out  of  the  assets  remaining  in  the  hands  of 


Barring  Creditors.  1069 

the  aforesaid  executor,  and  that  your  petitioner  may  have  such 
other  reHef  in  the  premises  as  may  1)e  just. 

Dated  Newark.  X.  J.,  X.  Y. 
-   i9--- 


State  of  New  Jersey 
County  of  Essex 


""•  \  ss. 


X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 
tition named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


y  X.  Y. 


Subscribed  and  sworn  to  this~^ 

day  of , 

19.  .  ..  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Five  days'  notice  of  this  application  must  be  given  to  the 
administrator.  For  form  of  Notice  see  Form  214;  for  proof 
of  service  Form  38. 


Form    122.      Order    Directing    Administrator    to    Pay    Claim    of 
Barred   Creditor   from   Undistributed    Surplus    Estate. 

[See  Orplians'  Court  Act,  section  80,  page  582,  .supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  )  On     Petition     of     Barred 
John  Doe,  deceased.  j  Creditor  For  Relief. 

Order  Directing  Payment  of 
Claim    of  Barred   Creditor. 

It  appearing  from  the  duly  verified  petition  of  X.  Y.,  filed 
herein,  that  the  said  X.  Y.,  is  a  creditor  of  the  estate  of  John 
Doe,  deceased,  and  that  there  is  due  him  on  his  said  claim 

the  sum  of dollars, "and  that  his  said  claim  or  demand 

has  been  barred  by  a  decree  of  the  Surrogate  of  the  County  of 


10/0  Probate;  Law  and  Practice. 

Essex,  barring  the  creditors  of  the  aforesaid  estate  from  their 
actions  for  their  claims  therefor  against  William  Doe,  the  ad- 
ministrator of  the  said  estate,  and  it  further  appearing  that  the 
final  account  of  the  said  William  Doe,  administrator  as  afore- 
said, was  duly  allowed  by  this  court  on  the    day  of 

,  19.  .  .,  whereby  it  appears  that  there  remains  in  the 

hands  of  said  administrator  the  sum  of   dollars  to  be 

distributed  according  to  law,  and  that  the  said  William  Doe. 
administrator  as  aforesaid,  has  neglected  to  apply  for  a  decree 
of  distribution  thereof,  although  more  than  three  months  has 
elapsed  since  the  allowance  by  this  court  of  his  final  account  as 
aforesaid. 

And  it  further  appearing  that  the  said  X.  Y.  has  duly  pre- 
sented to  the  said  William  Doe,  administrator  as  aforesaid, 
his  aforesaid  claim  against  the  estate  of  said  John  Doe,  de- 
ceased, after  the  same  was  barred  by  the  decree  of  the  Surro- 
gate, as  aforesaid,  but  that  the  said  William  Doe,  adminis- 
trator as  aforesaid,  wholly  refused  and  neglected  to  pay  said 
claim,  and  that  said  claim  is  uncontested.  And  it  further 
appearing  that  due  notice  of  this  application  has  been  given  to 

W'illiam  Doe,  administrator  as  aforesaid,  and  to   and 

,  the  next  of  kin  of  the  aforesaid  intestate. 

And  the  court  having  investigated  the  circumstances  of  the 
case  and  the  condition  of  the  estate,  and  being  satisfied  that 
after  the  payment  of  all  claims  brought  in  and  proved  against 
the  said  estate  there  remain  sufficient  assets  in  the  hands  of 
the  administrator  to  satisfy  the  petitioner's  aforesaid  claim, 
and  that  the  delay  of  said  administrator  in  applying  for  a  decree 
of  distribution  of  said  estate  was  unreasonable  and  without 
sufficient  cause. 

It  is  thereupon,  on  this day  of ,  one  thousand 

nine  hundred  and ORDERED  that  the  said  William  Doe, 

administrator  of  the  estate  of  the  said  John  Doe,  deceased,  as 
aforesaid,  pay  from  the  assets  of  said  estate  in  his  hands  the 
sum  of  dollars  due  and  owing  to  X.  Y.,  the  pe- 
titioner herein,  from  such  estate  as  aforesaid,  and  it  is  further 
ordered  that  the  costs  of  this  application  be  paid  by  the  said 
W^illiam  Doe,  administrator  as '  aforesaid,  out  of  his  own 
estate.  W.  P.  M., 

Judge. 


Barring  Creditors.  1071 

Form  123.     Petition  of  Barred  Creditor  for  Payment  of  His  Claim 
from  Assets  Unaccounted  for.  ^ 

[See  Orphans'  Court  Act,  section  70.  page  577.  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  )  On     Petition     of     Barred 
John  Doe,  deceased.  J  Creditor  For  Relief. 

Petition. 

To  the  Orphans"  Court  of  the  County  of  Essex. 

The  petition  of  X.  Y.,  of  the   of    ,  in  the 

County  of and  State  of ,  respectfully  shows 

that : 

1.  Your  petitioner  is  a  creditor  of  the  estate  of  John  Doe, 

late  of ,  deceased,  who  died  on  or  about  the 

day  of ,  19.  .  .  .,  leaving  a  last  will  and  testament, 

wherein   and   whereby   he   appointed    William    Doe,   executor 

thereof  :    the  said  will  was,  on  the    day  of    , 

19...,  duly  admitted  to  probate  and  letters  testamentary 
thereon  issued  to  the  said  William  Doe  by  the  Surrogate  of 
the  County  of  Essex. 

2.  On  the day  of ,  19.  ...  a  decree  was  made 

by  the  Surrogate  of  the  County  of  Essex  barring  all  creditors 
whose  claims  against  the  said  estate  of  John  Doe,  deceased, 
were  not  proved  within  the  time  limited  by  an  order  of  the 

said  Surrogate,  made  on  the   day  of   ,   19.  .  . 

Your  petitioner  has  a  claim   amounting  to    dollars 

against  the  said  estate  of  John  Doe,  deceased,  for  moneys 
loaned  by  your  petitioner  to  the  said  John  Doe  in  his  lifetime, 
but  did  not  bring  in  or  prove  his  claim  against  said  estate  within 
the  time  limited  in  said  order,  and  his  said  claim  has  been 
Ijarred  by  said  decree. 

3.  The  said  William  Doe,  executor  as  aforesaid,  has  duly 
settled  his  final  account  as  such  Executor  and  the  same  was 

o"  tli^'   day  of   ,   19 duly  allowed  by  this 

court,  and  the  said  executor  has  duly  distributed  the  balance 
in  his  hands  as  shown  by  said  account  to  the  persons  entitled 
thereto. 

69 


1072  Probate  Law  and  Practice. 

4.  Your  petitioner  has  found  some  other  estate  of  said  testa- 
tor not  accounted  for  by  the  said  executor,  to  wit :    a  deposit 

in  the Savings  Institution,  in  the of , 

made  by  the  said  testator  in  his  hfetime  and  standing  in  his 
name,  which  amounts  to  the  sum  of   dollars. 

Your  petitioner  therefore  prays  that  he  may  have  his  afore- 
said debt,  demand  or  claim  against  the  said  estate  paid  from 
the  portion  of  said  estate  not  accounted  for  as  aforesaid. 

Dated   Newark,   N.   J.,  '  X.   Y. 
, ,  i9--- 


State  oe  New  Jersey, 
County  oe  Essex. 


'1 


X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledsre  and  belief. 


y  X.  Y. 


Sul)scribed  and  sworn  to  this"^ 
day  of , 

19.  . .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Five  days'  notice  of  this  application  must  be  given  to  the 
executor.  For  form  of  notice"  see  Form  214,  for  proof  of 
service  Form  38. 


Form  124.     Order  Directing  Executor  to   Pay  Claim  o£   Barred 
Creditor  from  Estate  Not  Accounted  for. 

[See  Orphans'  Court  Act,  section  70,  page  577,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of   the   estate   of  )  On     Petition     of     Barred 
John  Doe,  deceased.  (  Creditor  For  Relief. 


Order  for  Payment  of  Claim 
of  Barred  Creditor. 


Proceedings  for  Discovery.         id 


/o 


It  appearing  from  the  petition  of  X.  Y.,  tiled  herein,  that 
the  said  X.  Y.,  is  a  creditor  of  the  estate  of  John  Doe,  de- 
ceased, and  that  there  is  due  him  on  his  said  claim  the  sum  of 

dollars,  and  that  his  said  claim  or  demand  has  heen 

barred  by  a  decree  of  the  Surrogate  of  the  said  County  of 
Essex  barring  the  creditors  of  the  aforesaid  estate  from  their 
actions  therefor  against  William  Doe,  the  executor  of  said 
estate ;  and  it  further  appearing  that  William  Doe.  the  execu- 
tor of  the  aforesaid  estate,  has  duly  settled  his  hnal  account 
as  such  executor  and  the  same  has  been  duly  allowed  by 
this  court,  and  that  X.  Y.,  the  petitioner  herein,  has  found  some 
other  estate  not  accounted  for  by  said  executor,  to  wit :    the 

sum  of   dollars  on  deposit  in  the   Savings 

Institution,  in  the of in  the  name  of  the 

said  John  Doe,  deceased,  which  dei)osit  was  made  by  him 
during  his  lifetime. 

And  it  further  appearing  that  due  notice  of  this  application 
has  been  given  to  William  Doe,  executor  as  aforesaid,  and  that 
the  aforesaid  claim  of  the  said  X.  Y.,  is  not  disputed,  and  that 
no  other  creditors  have  been  barred  of  their  debts,  demands 
or  claims. 

It  is  thereupon,  on  this day  of  ,  one  thou- 
sand   nine    hundred    and     ,    ordered    that    the    said 

William  Doe,  executor  of  the  last  will  and  testament  of  John 
Doe,   deceased,  as  aforesaid,   forthwith   reduce  to  possession 

the   aforesaid   deposit   in   the   aforesaid    Savings 

Institution,  the  same  being  assets  of  the  said  estate  not  ac- 
counted for  by  him,  and  from  such  assets,  when  collected  by 

him,  pay  to  the  said  X.  Y.,  the  sum  of   dollars  due 

and  owing  to  him  from  said  estate  as  aforesaid. 

W.  P.  iM., 

Judge. 


PROCEEDINGS    FOR   DISCOVERY. 

I.      EXAMINATION    INTO    CONDITION    OF    ESTATE. 
Form    125.      Petition    for    Discovery. 

[Sec  (Jrplians'  C'nuri  .Act,  section  i3y,  page  357,  supra.] 

Essex  County  Orimi.xns'  Court. 


I074  Probate  Law  and  Practice;. 


In  the  matter  of  the  estate  of  )  On  Petition  for  Discovery 
John  Doe,  deceased.  j  and  Relief. 

Petitio}i. 


To  the  Orphans'  Court  of  the  County  of  Essex: 

The  Petition  of  WilHam  Doe,  of  the   of   ,  in 

the  County  of    and   State  of    respectfully 

shows  as  follows : 

1.  He  is  one  of  the  children  of  John  Doe,  late  of   , 

who  recently  died  intestate ;  James  Doe,  the  brother  of  your 
petitioner,  has  been  duly  appointed  by  the  Surrogate  of  the 
County  of  Essex  administrator  of  the  estate  of  your  petitioner's 
father,  the  ^aid  John  Doe,  and  your  petitioner  as  a  child  of 
the  said  intestate  is  interested  in  the  estate  in  the  hands  of  the 
said  James  Doe,  administrator  as  aforesaid. 

2.  The  said  James  Doe,  administrator  as  aforesaid,  on  the 

day  of ,  19.  .  .,  loaned dollars  of  the 

funds  of  the  said  estate  to  one  X.   Y.,  of    who  is 

the  brother-in-law  of  the  said  administrator,  taking  as  security 
therefor  the  promissory  note  of  the  said  X.  Y.,  payable  to  the 
said  estate,  in  one  year  from  the  date  thereof. 

3.  Petitioner  shows  that  the  said  X.  Y.,  is  insolvent  and 
unable  to  repay  the  moneys  so  loaned  to  him  as  aforesaid  and 
that  the  security  so  taken  by  the  said  administrator  for  the 
said  moneys  of  the  said  estate,  loaned  by  him  as  aforesaid, 
is  insufficient,  and  that  such  security  so  taken  by  him  was 
improper  and  inadequate,  and  that,  in  loaning  the  moneys  of 
the  said  estate  upon  such  improper  and  inadequate  security, 
the  said  James  Doe,  administrator  as  aforesaid,  has  wasted 
and  misapplied  the  estate  entrusted  to  him  as  such  adminis- 
trator. 

Your  petitioner  therefore  prays  that  the  said  James  Doe 
may  by  an  order  of  this  court  be  compelled  to  make  discovery 
of  the  condition  of  the  said  estate  by  the  production  of  books, 
papers,  securities  and  documents  relating  thereto,  and  that  this 
court  may  take  such  proceedings  for  the  protection  of  the  said 
estate  as  to  the  court  shall  seem  for  the  best  interest  of  the 
said  estate. 

Dated  Newark,  N.  J.,  William   Doiv. 
' i9--- 


Proceedings  for  Discovery.  1075 


State  of  New 
County  of  E 


Jersey,  ) 

SSEX.        j 


William  Doe,  Ijeing  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  an.d  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this 
day  of , 

19.  . .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.   T- 


William    Doe. 


Form  126.     Order  to  Show  Cause  on  Petition  for  Discovery. 

[See  Orphans'  Court  Act.  section  139,  page  357,  supra.] 

Essex  County  Orphans'  Court. 
In   the   matter  of   the   estate  of  )  On  Petition  for  Discovery 


): 


John  Doe,  deceased.  j  and  Relief. 

Order  to  Sliozv  Cause. 

Upon  reading  and  filing  the  verified  petition  of  William 
Doe,  a  person  interested  in  the  estate  of  John  Doe,  deceased, 
alleging  that  James  Doe,  the  administrator  of  the  estate  of 
the  said  John  Doe,  deceased,  has  wasted  and  misapplied  the 
estate  entrusted  to  him,  and  asking  the  aid  of  this  court. 

It  is  thereupon,  on  this   day  of    19.  .  , 

ordered  that  the  said  James  Doe,  administrator  as  aforesaid, 

show  cause  before  this  court  on  the day  of 

19...,  at  ten  o'clock  in  the  forenoon,  why  he  should  not 
make  discovery  of  the  condition  of  the  estate  of  the  said  johni 
Doe,  deceased. 

And  it  is  further  ordered  that  true  but  unccrtitied  copies  of' 
Ihis  order  and  of  the  j^etition  herein  be  served  upon  the  said" 
James  Doe  personally,  or  by  leaving  the  same  at  his  residence 


10/6  Probate  Law  and  Practice. 

or  usual  place  of  abode,  with  a  member  of  his  family  over  the 

age  of  fourteen  years,  within days  from  the  date  hereof. 

W.    P.    M., 

Judge. 
For  proof  of  service  see  Form  38. 


Form   127.     Order  for   Discovery. 

[See  Orphans'  Court  Act,  section  139,  page  357,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  ")  On  Petition  for  Discovery 
John  Doe,  deceased.  j  and  Relief. 

Order  for  Discovery. 

William  Doe,  one  of  the  next  of  kin  of  John  Doe,  late  of  the 
County  of  Essex,  deceased,  having  filed  his  petition  herein 
alleging  that  James  Doe,  the  administrator  of  the  estate  of  the 
said  John  Doe,  deceased,  has  wasted  and  misapplied  the  estate 

entrusted  to  him,  and  this  court  having  on  the    day 

of   ,  19.  .  .,  made  its  order  requiring  the  said  James 

Doe  to  show  cause  on  the day  of ,  19.  .  . ,  why 

he  should  not  make  discovery  of  the  condition  of  the  said 
estate,  which  order  to  show  cause  has  been  duly  served  upon 
the  said  James  Doe,  and  the  matter  coming  on  to  be  heard  on 
the  day  last  aforesaid,  and  the  court  having  examined  into  the 
matter,  and  no  cause  having  been  shown  Avhy  the  said  James 
Doe,  administrator  as  aforesaid,  should  not  make  discovery  as 
to  the  condition  of  the  estate  of  the  said  John  Doe,  deceased. 

It  is  thereupon,  on  this    day   of    ,    19.  .  • , 

ordered  that  the  said  James  Doe,  administrator  as  aforesaid, 

appear   personally   before   this   court   on   the    day   of 

,  19. . .,  at  ten  o'clock  in  the  forenoon,  at  the  Court- 

House  in  the  City  of  Newark,  to  make  discovery  of  the  con- 
dition of  the  said  estate,  at  which  time  he  is  hereby  directed 
to  produce  all  books,  papers,  securities  and  documents  of 
whatsoever  character,  nature  and  description  in  his  hands  or 
tmder  his  control,  relating  to  the  estate  of  the  said  John  Doe, 
deceased,  and  to  abide  the  judgment  and  decree  of  the  court 
in  the  premises. 


Proceedings  for  Discovery.  1077 

And  it  is  further  ordered  that  true  l)Ut  uncertified  copies  of 
this  order  and  of  the  petition  herein  be  served  upon  the  said 
James  Doe  personally  or  by  leaving  the  same  at  his  residence 
or  usual  place  of  abode  with  a  person  over  the  age  of  fourteen 

3'ears  within days  from  the  date  hereof. 

W.  P.  M., 
Judge. 
For  proof  of  service  see  Form  38. 


II.     DISCOVERY  OF  ASSETS  OF  ESTATE. 

Form    128.      Petition   by   Administrator,    Etc.,    for    Discovery    of 
Assets. 

[See  3  Comp.  Stat.,  page  3866,  section  139a,  page  358,  supra.] 

Essex  County  Orphans'  Court. 

^    ,  ^^   On    Petition    of    Adminis- 

In   the  matter  of  the  estate  of  I  ,        ^. 

^  ,      ^        ,  ,  >trator     for     Discovery     ot 

John  Doe,  deceased. 

j  Assets. 

Petition. 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of and  State  of ,  respectfully  shows 

that : 

1.  Your  petitioner  is  the  administrator  of  the  estate  of  John 
Doe,  late  of  the  County  of  Essex,  deceased.  During  his  life- 
time, the  said  John  Doe,  as  your  petitioner  verily  believes, 
loaned  to  one  James  Smith  a  certain  diamond  ring  of  the  value 

of dollars,  but  did  not  take  any  memorandum  from 

the  said  James  Smith  evidencing  the  loan  of  the  said  diamond 
ring. 

2.  The  said  James  Smith  has  the  aforesaid  diamond  ring 
in  his  possession,  but  denies  that  the  same  is  the  property  of  the 
estate  of  the  said  John  Doe,  deceased  and  on  the  contrary 
alleges  that  the  same  was  presented  to  him  by  the  said  John 
Doe  in  his  life-time. 

3.  Your  petitioner  is  informed  that  one  Henry  Jones  has 
knowledge  concerning  the  circumstances  under  which  the 
said  James  Smith  obtained  possession  of  the  aforesaid  ring 


1078  Probate  Law  and  Practice. 

from  the  said  John  Doe,  deceased,  although  the  said  Plenry 
Jones  denies  having  such  knowledge. 

Your  petitioner  therefore  prays  that  the  said  James  Smith 
may  he  required  to  appear  before  this  court,  and  make  dis- 
covery as  to  his  possession  of  any  i)ersonal  property  of  the 
estate  of  the  said  John  Doe,  deceased,  and  that  the  said  Henry 
Jones  may  be  required  to  appear  before  this  court  and  make 
discovery  as  to  his  knowledge  of  the  circumstances  under 
which  the  said  James  Smith  obtained  possession  of  the  afore- 
said ring  from  the  said  John  Doe.  deceased. 

Dated  Newark,  N.  J.,  William  Doe. 
, ,  i9--- 


State  of  New  Jersey 
County  oe  Essex 


"'■  J ... 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this'^ 


19.. 
me, 


^,  ^    ,  '  ^T "  V  1! '  f ' " '  ^  William   Doe. 

,  at  Newark,  N.     .,  before  ( 

J 

J-  C.  F., 

Notary  Public  of  N.  J. 


Form  129.     Order  for  Discovery  of  Assets. 

[See  3  Comp.  Stat.,  page  3866,  section  139a,  page  358,  supra.] 

Essex  County  Orphans'  Court. 

T       ,  ,     ,  -^   On    Petition    of    Adminis- 

In   the  matter  of   the   estate  of  .■        t-x-  e 

T  ,      T^        ,  ,  >trator     tor     Discovery     of 

lohn  Doe,  deceased.  (    . 

J   Assets. 

Order  for  Discovery. 

William  Doe,  of  the of in  the  County  of 

and   State   of    ,   administrator   of   the   estate 

of  John  Doe,  deceased,  having  filed  his  petition  herein,  whereby 


Proceedings  for  Discovery.  1079 

it  appears  that  he  believes  that  James  Smith  has  in  his  posses- 
sion personal  property  of  the  estate  of  the  said  John  Doe. 
deceased,  and  that  Henry  Jones  has  knowledge  of  the  exist- 
ence or  whereabouts  of  personal  property  of  the  estate  of  the 
said  John  Doe,  deceased. 

It   is   thereupon   on   this    day   of    ,    19..., 

ordered  that  the  said  James  Smith  appear  before  this  court  on 

the day  of ,  19.  .  .,  and  make  discovery  of  his 

possession  of  any  personal  property  of  the  said  John  Doe, 
deceased,  and  that  on  the  day  last  aforesaid,  the  said  Henry 
Jones  also  appear  and  make  discovery  of  his  knowledge  of  the 
existence  or  whereabouts  of  any  personal  property  of  the 
said  John  Doe,  deceased. 

It  is  further  ordered  that  a  true  but  uncertitied  copy  of  the 
aforesaid  order  and  of  the  petition  herein  be  served  upon  the 
said  James  Smith  and  Henry  Jones,  respectively,  personally, 
or  by  leaving  the  same  at  their  residence  or  usual  place  of  abode 

with  some  person  over  the  age  of  fourteen  years,  within 

days  from  the  date  hereof.  W.  P.  M., 

Judge. 

For  proof  of  service  see  Form  38. 


Form  130.     Order  Directing  that  Assets  of  Estate  be  Delivered 
to  Administrator. 
[See  3  Comp.  Stat.,  page  3866,  section  139a,  page  358,  supra.] 

Essex  County  Orphans'  Court. 

^       ,  .     ,  .~^   On    Petition    of    Adminis- 

In   the   matter  of   the   estate  01  r         -r^-  r 

T   ,      „         ,  ,  Vtrator     for     Discovery     of 

ohn  Doe,  deceased.  (    , 

I   Assets. 

Order. 

William  Doe,  of  the of ,  in  the  County  of 

and  State  of the  administrator  of  the  estate  of  John 

Doe,  late  of  the  County  of  Essex,  deceased,  having  filed  his 
jjetition  herein  alleging  that  during  his  lifetime  the  said  John 
Doe  loaned  to  one  James  Smith,  a  certain  diamond  ring,  the 
])roperty  of  the  said  John  Doe,  and  that  the  said  James  Smith 
claims  that  the  said  diamond  ring  was  given  him  by  the  said 


io8o  Probate  Law  and  Practice. 

John  Doe,  deceased,  and  not  loaned  as  aforesaid,  and  praying 
the  aid  of  the  court  in  the  premises,  and  the  rule  to  show 
cause  made  herein  having  been  duly  served,  and  the  court 
having  taken  testimony  and  considered  the  matter  and  being 
satisfied  that  the  said  John  Doe  in  his  life  time  loaned  to  the 
said  James  Smith  the  diamond  ring  aforesaid,  and  that  the 
same  is  the  property  of  the  estate  of  the  said  John  Doe, 
deceased. 

It  is  thereupon,  on  this day  of ,  19.  . . , 

ordered  that  the  said  James  Smith  deliver  the  aforesaid 
diamond  ring  to  William  Doe,  the  administrator  of  the  estate 

of  the  said  John  Doe,  deceased,  within days  from  the 

date  hereof  to  the  end  that  the  said  ring  may  be  administered 
upon  as  part  of  the  assets  of  the  estate  of  the  said  John  Doe, 
deceased.  W.  P.  M., 

Judge. 


III.     DISCOVERY   OF  WILLS. 

Form  131.     Petition  for  Discovery  of  Will. 
[See  P.  L.  191 1,  page  96,  page  189,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  estate  of  ")  On  Petition  for  Discovery 
John  Doe,  deceased.  j  of  Will. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of   and  State  of  New  Jersey,  respectfully 

shows  that : 

1.  Your  petitioner  is  the  son  and  one  of  the  next  of  kin  of 
John  Doe,  late  of  the  County  of  Essex,  deceased,  who  de- 
parted this  life  on  the day  of ,  19.  .  . ,  leaving. 

as  your  petitioner  is  informed  and  verily  believes,  a  last  will 
and  testament. 

2.  On  or  about  the day  of ,  19.  .  . ,  and  after 

the  death  of  the  said  John  Doe,  petitioner's  brother.   James 
Doe,  as  your  petitioner  is  informed  and  verily  believes,  took  a 


Proceedings  for  Discovery.  io8i 

paper  writing  which  your  petitioner  heHeves  to  Ije  the  last 
will  and  testament  of  the  said  John  Doe.  deceased,  from  a 
box  in  which  the  said  John  Doe,  deceased,  kqpt  his  personal 
papers:  and  the  said  James  Doe  has  the  aforesaid  paper 
writing  in  his  possession,  or  has  knowledge  of  the  existence  or 
whereabouts  of  the  same. 

3.  The  said  James  Doe,  though  often  requested  by  your 
petitioner  so  to  do,  refuses  and  neglects  to  i)roduce  the  afore- 
said ftvill  of  the  said  John  Doe,  deceased,  to  the  Surrogate  of 
the  County  of  Essex  for  probate,  or  to  give  your  petitioner 
any  information  as  to  its  whereabouts. 

Your  petitioner  therefore  prays  that  this  court  may  by  order 
require  the  said  James  Doe  to  appear  before  it  and  make  dis- 
covery as  to  his  possession  of,  or  knowledge  of  the  existence 
or  whereabouts  of  any  paper  writing  purporting  to  be  the  last 
will  and  testament  of  the  said  John  Doe,  deceased. 

Dated  Newark,  N.  J.,  '  William  Doe. 
, ,  I9--- 

Sta-te  of  New  Jersey,  ") 
County  of  Essex.      J 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this^ 

day  of ,  [ 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


>-  William  Doe. 


J 


Form  132.     Order  for  Discovery  of  Will. 

[See  P.  L.  191 1,  i)age  96,  page  189,  supra.] 

Essex  County  Orphans'  Court. 

In    the   matter  of   the  estate  of  ")  On  Petition  for  Discovery 
John  Doe,  deceased.  j  of  Will. 

Order  for  Discovery. 


io82  Probate  Law  and  Practice. 

It  appearing  from  the  petition  of  William  Doe,  tiled  herein, 
that  the  said  petitioner  is  one  of  the  sons  and  next  of  kin  of 
John  Doe,  late  of  the  County  of  Essex,  deceased;  and  that 
James  Doe  has  in  his  possession,  or  has  knowledge  of  the 
existence  or  whereabouts  of  a  paper  writing  purporting  to  be 
the  last  will  and  testament  of  the  said  John  Doe,  deceased, 
and  refuses  and  neglects  to  produce  the  same  to  the  Surrogate 
of  the  County  of  Essex  for  probate. 

It  is  thereupon,   on  this    day   of    ,    i*».  •  • , 

ORDERED  that  the  said  James  Doe  appear  before  this  court  on 

the day  of ,  19.  •  • ,  and  make  discovery  as  to 

his  possession  of  or  knowledge  of  the  existence  or  whereabouts 
of  any  paper  writing  purporting  to  be  the  last  will  and  testa- 
ment of  the  said  John  Doe,  deceased. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy 

of  this  order  be  served  upon  the  said  James  Doe  within 

days  from  the  date  hereof  personally  or  by  leaving  the  same  at 
his  residence  or  usual  place  of  abode  with  a  person  over  the 
age  of   fourteen  years. 


For  form  of  proof  of  service  see  Form  38. 


W.  P.  AI., 
Judge. 


Form   133.     Order  to   Produce  Will. 

[See  P.  L.  1911,  page  96,  page  189,  supra.] 

Essex  County  Orphans'  Court. 


bate  of  I  On  Petiti( 
j  of  Will. 


In   the  matter  of   the   estate  of  )  On  Petition  for  Discovery 
John  Doe,  deceased. 


Order  to  Produce  Will. 

This  matter  having  been  opened  to  the  court  by , 

of  counsel  with  the  petitioner  herein,  and  it  appearing  that 

on  the    day  of    ,   19.  .  .,  it  was  ordered  that 

James  Doe  appear  before  this   court  on  the    day  of 

,  19.  .  .,  and  make  discovery  as  to  his  possession  of  or 

knowledge  of  the  existence  or  whereabouts  of  any  paper  writing 
purporting  to  be  the  last  will  and  testament  of  John  Doe,  late 


Sale  of  Lands  for  Debts.  1083 

of  the  County  of  Essex,  deceased :  and  the  matter  coming  on 
to  be  heard,  and  the  court  having  taken  testimony  and  heard 
arguments  of  counsel,  and  being  satisfied  that  the  said  James 
Doe  has  in  his  possession,  or  under  his  control,  a  paper  writing 
purporting  to  be  the  last  will  and  testament  of  the  said  John 
Doe,  deceased,  which  he  has  refused  or  neglected  to  produce  to 
the  Surrogate  of  the  said  County  of  Essex  for  probate. 

It   is   thereupon   on   this    day   of    ,    19..., 

ORDERED  that  the  said  James  Doe  lodge  the  said  paper  writing 
purporting  to  be  the  last  will  and  testament  of  the  said  John 
Doe.  deceased,  which  is  in  his  possession,  or  under  his  control, 
with  the  Surrogate  of  the  County  of  Essex  for  probate,  within 

days  of  the  ser*'ice  upon  him  of  a  true  but  uncertified 

copy  of  this  order. 

W.  P.  M., 

Judge. 

For  form  of  proof  of  service  see  Form  38. 


SALE  OF  LANDS  FOR  PAYMENT  OF  DEBTS. 

I.     ON  PETITION  OF  EXECUTOR  OR  ADMINISTRATOR. 
Form  134.     Petition  for  Sale  of  Lands  to  Pay  Debts. 

[See  Orphans'  Court  Act,  section  82,  page  470,  supra;    and  Orphans' 
Court  Rule  33.  page  509.  supra.] 

Essex  County  Orphans'  Court. 


In   the  matter  of   the  estate  of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of  Essex  and  State  of   New  Jersey,  respectfully 
shows,  that :    • 

I.  On  the day  of  19.  .  . ,  he  was  duly  ap- 

] jointed,  by  the  Surrogate  of  the  County  of  Essex,  adminis- 
trator of  the  estate  of  John  Doc,  deceased,  and  he  has  dis- 


1084  Probate  Law  and  Practice. 

covered  and  believes  that  the  personal  estate  of  his  aforesaid 
intestate  is  insufficient  to  pay  his  debts,  and  herewith  exhibits 
under  oath  a  true  account  of  the  personal  estate  and  debts  of 
his  said  intestate,  so  far  as  he  can  discover  the  same,  which 
account  is  hereunto  annexed. 

2.  The  said  John  Doe  died  seized  of  four  certain  tracts  of 

lands  in  the of ,  in  the  County  of and 

State  of  New  Jersey,  to  wit:  (Describe  the  lands);  said 
lands  consist  of   four  vacant  building  lots  which  are  valued. 

as  nearly  as  your  petitioner  can  ascertain,  at  the  sum  of 

dollars  each. 

Your  petitioner  therefore  requests  the  aid  of  the  court  in 
the  premises  and  prays  that  an  order  nlay  be  made  in  manner 
and  form  as  required  by  law  requiring  all  persons  interested 
in  such  lands,  tenements,  hereditaments  and  real  estate  to 
appear  before  this  court  to  show  cause  why  so  much  of  the 
above  described  lands,  tenements,  hereditaments  and  real 
estate  whereof  the  said  John  Doe,  deceased,  died  seized,  as 
aforesaid,  should  not  be  sold  as  will  be  sufficient  to  pay  the 
residue  of  the  debts  of  said  intestate. 

Dated  Newark,  N.  J.,  '  William  Doe. 
,  ,  I9--- 

State  of  New  Jersey, 


County  of  Essex. 


i 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 


William  Doe. 


Subscril^ed  and  sworn  to  this 
day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  following  is  a  true  account  of  the  personal  estate  and 
debts,  of  the  aforesaid  John  Doe,  deceased,  so  far  as  your 


Sale  of  Lands  for  Debts.  1085 

petitioner,  administrator  of  the  estate  of  the  said   John  Doe, 
deceased,  has  been  able  to  discover : 

To  amount  of  personal  property  as  shown 
by  inventory  filed  in  the  Surrogate's  office  of 
the  County  of  Essex .$1,000. 

Loss  on  sale  of  said  personal  propertv 100. 

Total  value  of  personal  property $900. 

The  following  claims  have  been  presented  to  the 
administrator. 

H.  S.,  undertaker   $300. 

W.  H.  C,  ph3^sican   i;o. 

Y.  Z.,  claim  on  note  made  by  decedent  in  his 

lifetime    2,000. 


$2,450. 

State  of  New  Jersey, 
County  of  Essex. 


^^^'  ]  ss. 

X.         j 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  administrator  of  the 
estate  of  John  Doe,  deceased,  and  that  the  foregoing  is  a  true 
account  of  the  personal  estate  and' of  the  debts  of  the  decedent, 
so  far  as  he  can  discover  the  same. 


Subscribed  and  sworn  to  this"^ 

day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


>  William  Doe. 


Form    135.      Order    to    Show    Cause   Why   Lands    Should    Not   be 
Sold  to  Pay  Debts. 

[vSee  Orphans'  Court  Act,  section  82,  page  473,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Order  to  SJwzv  Cause.  ■ 


io86  Probate  Law  and  Practice. 

William  Doe,  administrator  of  the  estate  of  John  Doe, 
deceased,  having  exhibited  under  oath  a  true  account  of  the 
personal  estate  and  debts  of  said  intestate,  whereby  it  appears 
that  the  personal  estate  of  the  said  John  Doe,  deceased,  is  in- 
sufficient to  pay  his  debts  and  requesting  the  aid  of  the  court 
in  the  premises. 

It  is  thereupon  on  this day  of 19.  .  . ,  or- 
dered that  all  persons  interested  in  the  lands,  tenements,  her- 
editaments and  real  estate  of  the  said  John  Doe,  deceased,  ap- 
pear before  this  court  at  the  Court  House  in  the  city  of  New- 
ark on  the day  of ,  19.  . .,  at  10  a.  m.,  to  show 

cause,  why  so  much  of  the  said  lands,  tenements,  heredita- 
ments and  real  estate  of  the  said  John  Doe,  deceased,  should 
not  be  sold  as  will  be  sufficient  to  pay  his  debts. 

It  is   further  ordered  that  this  order  be  published  in  the 

one  of  the  newspapers  of  this  state  for  six  weeks  at 

least  once  in  each  week. 

W.  P.  M., 

F.  G.  S.,  Judge. 

Surrogate. 

The  foregoing  order  must  be  set  up  at  three  of  the  most 
public  places  in  said  county  for  six  weeks  successively  and  be 
published  at  least  once  in  each  week  for  the  same  time  in  one 
or  more  of  the  newspapers  of  this  State,  as  the  said  court  may 
direct.  For  form  of  proof  of  posting  order  see  Form  115.  For 
form  of  proof  of  advertisement  in  newspaper  see  Form  114. 


Form  136.     Decree  for  Sale. 

[See  Orphans'  Court  Act,  section  83,  page  476,  supra,  and  section  91, 
page  502,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  estate  of  ")  On    Petition    for    Sale    of 
John  Doe,  deceased.  f  Lands   to   Pay   Debts. 


Decree  for  Sale. 

The  order  to  show  cause  made  in  this  matter  on  the 

day  of    IQ---,  having  been  advertised  and  pubhshed 

according  to  law,  and  the  court  having  heard  and  examined 


Sale  of  Lands  for  Debts.  1087 

the  allegations  and  proofs  of  William  Doe,  administrator  of 
the  estate  of  John  Doe,  deceased,  and  of  the  parties  interested 
herein  and  it  appearing  upon  a  full  examination  into  the  matter 
that  the  personal  estate  of  John  Doe,  the  said  intestate,  is  not 
sufficient  to  pay  his  debts,  and  that  the  said  William  Doe,  ad- 
ministrator as  aforesaid,  has  applied  all  of  the  personal  estate 
that  has  come  to  his  hands  to  the  payment  of  said  debts,  and 

that  there  is  a  deficiency  amounting  to   the   sum  of    

dollars ; 

It  is  thereupon,  on  this day  of I9-  •  • .  or- 
dered that  the  said  William  Doe,  administrator  as  aforesaid, 
sell  the  following  tracts  of  land  whereof  the  said  John  Doe 
died  seized,  to  wit:    (insert  description  of  lands)  to  raise  the 

aforesaid  sum  of dollars  for  the  payment  of  the  debts 

of  the  said  decedent,  and  that  after  niaking  such  sale  the 
said  William  Doe  report  the  same  to  this  court  for  its  ap- 
proval and  confirmation ; 

And  it  is  further  ordered  that  before  selling  the  aforesaid 
lands  the  said  William  Doe,  administrator  as  aforesaid,  shall 
first  enter  into  bond  to  the  ordinary  with  condition  according 
to  the  statute  in  such  case  made  and  provided,  in  the. sum  of 

dollars,   with   two   or   more   sufficient   sureties,   to   be 

Approved  by  this  court. 

W.  P.  M., 

Judge. 

For  form  of  report  of  sale  see  Forms  157  and  161.  For 
decree  confirming  sale  see  Forms  159  and  162.  For  deed  by 
Administrator  see  Forms  160  and  163.  For  form  of  bond  see 
Form  137. 


Form  137.     Bond  by  Executor  or  Administrator  Ordered  to  Sell 
Lands. 

[See  Orphans'  Court  Act,  section  91,  page  503,  supra.] 

Know  all  men  by  these  presents  that  we,  A.  B.,  C.  D.,  and 

E.  F.,  all  of  the of in  the  County  of 

and  State  of  New  Jersey,  are  held  and  firmly  bound  unto  the 

<^)rdinary  of  the  State  of  New  Jersey  in  the  sum  of    

dollars  lawful  nKjnc\-  of  the  United  States,  to  be  ])aid  to  the 
70 


io88  Probate  Law  and  Practice. 

said  Ordinary  as  aforesaid,  his  successors  or  assigns  to  which 
payment  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors  and  administrators,  jointly  and  severally 
tirmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

one  thousand,  nine  hundred  and 

The  condition  of  this  obligation  is  such  that  if  the  above- 
bounden  A.  B.,  executor  of  the  last  will  and  testament  of 
X.  Y.,  deceased  {or  administrator  of  all  and  singular  the 
-goods,  chattels,  and  credits  of  X.  Y.,  deceased,  as  the 
case  may  be)  shall  well  and  truly  administer  the  moneys 
arising  from  the  sales  of  any  lands,  tenements  or  real 
estate  of  the  said  X.  Y.,  directed  by  the  order  of  the  Or- 
phans'  Court  of  the  County  of    to  be   sold 

according  to  law,  and  further  do  make  or  cause  to  be  made 
a  just  and  true  account  of  his  administration,  within  twelve 
months  from  the  date  of  the  above  obligation,  and  the 
surplus  of  money  which  shall  be  found  remaining  upon  the 
account  of  such  sale  or  sales  (the  same  being  first  examined 
and  allowed  by  the  Orphans'  Court  of  the  county,  or  other 
competent  authority)  shall  distribute  and  pay  unto  such 
person  or  persons  respectively  as  is,  are  or  shall  be  by  law  en- 
titled to  received  the  same, .  then  the  above  obligation  to  be 
void  and  of  none  effect,  otherwise  to  l)e  and  remain  in  full 
force  and  virtue. 

Signed,   sealed   and   delivered   in  ^  A.  B.   (l.  s.) 

the  presence  of  >  CD.   (l.  s.) 


E.F.   (l.  s.) 


Add  justification  of  sureties  as  in  Form  7. 


II.  PROCEEDINGS  BY  HEIR  AT  LAW  TO  PREVENT 

SALE. 

Form  138.     Petition  by  Heir  to  Fix  Amount  of  Bond  to  Prevent 
Sale  of  Lands. 

[See  Orphans'  Court  Act,  section  89,  page  474,  supra.] 

Essex  County  Orphans'  Court. 


Sale  of  Lands  for  Debts.  1089 


In   the   matter  of   the  estate  of  |  ( )n    Petition    for    Sale    of 
John  Doe,  deceased  j  Lands  to  I 'ay  Del)ts. 

Petition  by  Heir  at  Laze 
for  Order  Fixing  Amount 
of  Bond  to  prevent  Sale. 

The  petition  of  James  Doe.  of  the of  in  the 

County  of and  State  of ,  respectfully  shows  that : 

1.  Your  petitioner  is  one  of  the  heirs  at  law  of  John  Doe, 

late  of  the  County  of  Essex,  deceased.     On  the    day 

of    ,    19...,    William    Doe,    the    administrator    of    the 

aforesaid  John  Doe,  duly  presented  to  this  court  his  petition 
alleging  that  the  personal  estate  of  the  said  John  Doe  was  not 
sufficient  to  pay  his  debts,  and  praying  relief  in  the  ])remises, 
and  such  proceedings  were  had  thereon  that  this  court  on  the 
day  last  aforesaid  made  its  order  re(|uiring  all  persons  inter- 
ested in  the  lands  of  the  aforesaid  John  Doe,  deceased,  to  show 

cause  before  this  court  on  the day  of ,  19.  .  . 

why  so  much  of  the  lands  of  said  John  Doe,  deceased,  should 
not  be  sold  as  would  be  sufficient  to-  pay  his  debts. 

2.  Your  petitioner,  as  one  of  the  heirs  at  law  of  the  said 
John  Doe,  deceased,  desires  to  enter  into  bond  as  provided  by 
law  for  the  payment  to  the  said  administrator  of  so  much 
money  as  may  be  required  to  pay  the  residue  of  the  debts  of 
the  said  John  Doe,  deceased,  and  the  just  expenses  and  allow- 
ances incurred  in  the  settlement  of  his  estate  which  shall  remain 
after  the  personal  estate  shall  be  appplied  thereto,  and  to  idem- 
nify  and  save  harmless  the  said  administrator  from  any  dam- 
ages or  costs  to  which  he  may  individually  be  lawfully  subjected 
Ijy  reason  of  any  delay  incident  to  this  proceeding. 

Your  petitioner  therefore  prays  that  this  court  may  by  its 
order  fix  the  amount  of  and  sureties  re(iuired  upon  a  bond 
to  be  entered  into  by  your  petitioner,  pursuant  to  the  provisions 
of  the  act  in  such  case  made  and  ])rovided. 

Dated  Newark,  N.  J.,  James  Doe. 

,  I9--- 

State  of  New  Jersey, 


County  of  Essex. 


Ev,  ) 


James  Doe,  being  duly   sworn   according  to   law   upon   his 
oath,  deposes  and  says  that  he  is  the  ])etitioner  in  the  fore- 


lOQO  Probate  Law  and  Practice. 

going  petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and 
belief. 


Subscribed  and  sworn  to  this"^ 
day  of ,  I 

19.  .  .,  at  Newark.  N.  J.,  before 
me. 

J.  C.  F., 

Notary  Public  of  N.   T- 


Tames  Doe. 


Form  139.     Order  Fixing  Amount  of  Bond  to  be  Given  by  Heir 
at  Law. 

[See  Orphans'  Court  Act,  section  89,  page  474.  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  ")  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Order  Fixing  Aiiioitnf  of 
Bond  to  be  Given  hy 
Heir  at  Law. 

This  court,  having  on  the   day  of   19.  .  ., 

ordered  that  cause  be  shown  before  this  court  on  the   

day  of ,  19.  . .,  why  the  lands  and  real  estate  of  John 

Doe,  late  of  the  County  of  Essex  deceased,  should  not  be  sold 
for  the  payment  of  his  debts:  and  at  the  time  fixed  for  the 
hearing  upon  the  said  order  James  Doe,  one  of  the  heirs  at  law 
of  the  said  John  Doe,  deceased,  having  presented  his  petition 
herein,  reciting  that  he  desires  to  enter  into  bond  as  provided 
by  law  for  the  payment  to  William  Doe,  the  administrator  of 
the  estate  of  the  said  John  Doe,  deceased,  of  so  much  money 
as  may  be  recjuired  to  pay  the  residtie  of  the  debts  of  the  said 
John  Doe,  deceased  ;  and  the  court  having  inquired  into  the 
matter. 

It  is  thereupon,   on  this    day   of    ,    19.... 

ordered  that  the  said  Tames  Doe  enter  into  bond  with  the  said 


Sale  of  Laxds  for  Debts.  109 i 

William  Doe.  administrator  as  aforesaid,  within    davs 

from  the  date  hereof,  in  the  sum  of dollars,  with  two 

or  more  sufficient  sureties,  conditioned  for  the  payment  to  the 
said  \\'illiam  Doe,  administrator  as  aforesaid,  of  so  much 
money  as  may  be  required  to  pay  the  residue  of  the  debts  of 
the  said  John  Doe,  deceased,  and  the  just  expenses  and  allow- 
ances incurred  in  the  settlement  of  his  estate,  which  shall 
remain  after  the  personal  estate  shall  be  applied  thereto,  and 
to  indemnify  and  save  harmless  the  said  administrator  from 
any  damages  or  costs  to  which  he  may  individually  be  law- 
fully subjected  by  reason  of  any  delay  incident  to  this  j^ro- 
ceeding  which  bond  shall  be  approved  by  this  court  as  to  the 
form  and  sureties  thereof. 

W.  P.  ^I., 
Judge. 
For  form  of  bond^  see  Form  140. 


Form  140.     Bond  by  Heir  for  Payment  of  Debts. 
[See  Orphans'  Court  Act,  section  89,  page  474,  supra.] 

Know  all  men  by  these  presents,  that  we.  A.  B.,  heir 
at  law  of  John  Doe,  deceased,  and  C.  D.  and  E.  F..  all  of  the 

of ,  in  the  County  of  Essex  and  State  of  New 

Jersey,  are  held  and  firmly  bound  unto  X.  Y.,  the  adminis- 
trator of  the  estate  of  John  Doe,  deceased,  in  the  sum  of 

dollars  to  be  i)aid  to  him  or  to  his  successors  in  office,  or  to  his 
representatives  or  assigns,  to  which  payment  well  and  truly  to 
be  made,  we  bind  ourselves  and  each  of  our  heirs,  executors 
and  administrators,  jointly  and  severally,  firmly  by  these  pres- 
ents. 

Sealed  with  our  seals  and  dated  this day  of 

one  thousand  nine  hundred  and 

Whereas,  by  an  order  made  by  the  Orphans'  Court  of  the 

County  of  Essex  on  the day  of 19.  .  . ,  it  was 

ordered  that  cause  be  shown  before  said  court  on  the   

(lay  of ,  19. .  .,  why  lands  and  real  estate  of  John  Doe, 

deceased,  should  not  be  sold  for  the  payment  of  his  debts,  and 
whereas,  A.  B.  is  one  of  the  heirs  at  law  of  the  said  John  Doe, 
deceased  (or  one  of  the  devisees  iiiider  the  last  will  of  the  said 


1092  Probate  Law  and  Practice. 

John  Doc,  deceased),  and  desires  to  prevent  the  sale  of  said 
lands. 

Now  the  condition  of  this  obligation  is  such,  that  if  the 
said  A.  B.  shall  pay  to  the  said  administrator  so  much  money 
as  may  be  required  to  pay  the  residue  of  the  debts  of  the  said 
John  Doe,  deceased,  and  the  just  expenses  and  allowances  for 
the  settlement  of  his  estate  which  shall  remain  after  the  per- 
sonal estate  shall  be  applied  thereto,  and  shall  indemnify  and 
save  harmless  the  said  X.  Y.,  administrator  as  aforesaid,  from 
any  damages  or  costs  to  which  he  may  individually  be  law- 
fully subjected  by  reason  of  the  delay  caused  by  the  giving  of 
this  bond,  then  this  obligation  to  be  void  and  of  no  effect,  other- 
wise to  remain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered  ^  A.  B.    [l.  S.] 

in   the  presence  of  >  C.  D.    [e.  s.] 

j  .  E.  F.    [L.  s.] 

Add  justification  of  sureties  as  in  Form  7. 


Form  141.     Order  Approving  Bond  of  Heir  at  Law  and  Adjourn- 
ing Hearing. 

[See  Orphans'  Court  Act,  section  89.  page  474,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  -     j  Lands  to  Pay  Debts. 

Order  Approving  Bond  and 
Adjourning  Hearing. 

This  court,  having  on  the   day  of   ,  19.  .  ., 

ordered  that  cause  be  shown  before  it  on  the   day  of 

,  19.  .  .,  why  the  lands  and  real  estate  of  John  Doe, 

deceased,  should  not  be  sold  for  the  payment  of  his  debts, 
and  James  Doe,  one  of  the  heirs  at  law  of  the  said  John  Doe, 
deceased,  having  presented  his  petition  praying  that  this  court 
would  fix  the  amount  of  and  sureties  required  upon  a  bond  to 
be  entered  into  by  the  said  James  Doe  for  the  payment  of  so 
much  monev  as  mav  be  required  to  pav  the  residue  of  the 


Sale  of  Lands  for  Debts.  1093 

debts  of  the  said  John  Doe,  deceased,  which  shall  remain  after 
the  personal  estate  be  applied  thereto,  and  the  court  having  by 

Its  order  made  on  the day  of I9-  •  ■ ,  ordered 

that  the  said  James  Doe  enter  into  bond  with  the  said  William 

Doe,  administrator  as  aforesaid,  in  the  sum  of dollars, 

and  the  said  James  Doe  having  presented  to  the  court  for  its 
approval  a  bond  conditioned  for  the  payment  to  the  said  Wil- 
liam Doe,  administrator  as  aforesaid,  of  so  much  money  as  may 
be  required  to  pay  the  residue  of  the  debts  of  the  said  John 
Doe,  deceased,  and  the  just  expenses  and  allowances  for  the 
settlement  of  his  estate,  which  shall  remain  after  the  personal 
estate  shall  have  been  applied  thereto,  and  to  indemnify  and 
save  harmless  the  said  administrator  from  any  damages  or 
costs  to  which  he  may  be  individually  subjected  by  reason  of 
the  delay  ;  and  the  court  having  examined  into  the  matter  and 
approved  the  amount,  form  and  sureties  of  the  said  bond. 

It  is  thereupon,  on  this day  of ,  19.  .  . ,  ordered, 

that  the  said  bond  be,  and  the  same  is  hereby  approved  as  to  the 
amount,  form  and  sureties  thereof,  and  that  the  hearing  of  the 
said  rule  to  show  cause  and  all  proceedings  thereunder  stand 
adjourned  until  the  amount  of  the  aforesaid  deficiency  can  be 
ascertained.  W.  P.  M., 

Judge. 


Form  142.  Demand  on  Heir  at  Law  to  Pay  Administrator  Moneys 
Required  to  Pay  Residue  of  Debts,  and  Notice  of  Appli- 
cation for  Prosecution  of  Bond. 

[See  Orphans'  Court  Act,  section  89,  page  474,  supra;    and  Orphans' 
Court  Rule  31,  page  475,  supra.] 

Essex  County  Orphans'  Court. 


In   the   matter  of   the  estate  of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  j       Lands  to  Pay  Debts. 

/hvitiiiui  on  Ilcir. 


To  A.  B.,  heir  at  law  of  John  Doe,  deceased,  and  C.  1).  and  \\. 

F.,  sureties : 

You  are  hereby  ncjtilied  that  all  of  the  ])ers()nal  estate  of 
John  Doe,  deceased,  has  been  a])plie(l  to  ihe  paxnicnt   of  his 


1094  Probate  Law  and  Practice. 

debts  and  the  just  expenses  and  allowances  for  the  settlement 
of  his  estate,  and  that  the  residue  of  the  aforesaid  debts,  ex- 
penses and  allowances  which  remain  after  the  personal  estate 

has  been   applied  thereto   amounts   to    dollars,   and    I 

hereby  demand  the  payment  of  the  aforesaid  sum  of   

dollars  required  to  pay  the  aforesaid  residue  pursuant  to  the 
condition  of  a  bond  made  and  entered  into  by  you  to  me  and 

bearing  date  on  the day  of ,  19.  .  . 

You  are  further  notified  that  if  you  refuse  or  neglect  to  pay 
to  me  the  aforesaid  residue  of  such  debts,  expenses  and  allow- 
ances I  shall,  on  the    day  of    ,    19.  .  .,  apply 

to  the  Orphans'  Court  of  the  County  of  Essex  for  an  order  au- 
thorizing me  to  prosecute  the  bond  given  by  you  to  me  as 
aforesaid  or  directing  me  to  sell  sufficient  of  the  lands  whereof 
the  said  John  Doe  died  seized,  to  pay  the  residue  of  the  debts, 
expenses  and  allowances  as  aforesaid. 

Dated  Newark,  N.J.,  X.  Y. 
, ,  I9--- 

This  notice  must  be  served  at  least  five  days  before  the  day 
named  upon  which  the  application  will  be  made.  Notice  of 
the  application  must  also  be  given  to  the  sureties  on  the  bond. 

For  form  of  notice  see  Form  214;  for  proof  of  service 
Form  38. 


Form   143.     Petition  by  Administrator  Where   Heir   Neglects   to 
Pay  Moneys  Required  to  Pay  Residue  of  Debts  o£  Intestate. 

[See  Orphans'  Court  Act,  section  89,  page  474,  supra,  and  Orphans' 
Court  Rule  31,  page  475,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the  estate   of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  j       Lands  to  Pay  Debts. 

Petition  for  Order  to  Prosecute 
Bond  of  Heir  at  Lazv. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of and  vState  of ,  respectfully  shows 

that : 


Sale  of  Lands  for  Debts.  1095 

1.  Your  petitioner  is  the  ci,dministrator  of  the  estate  of  John 
Doe,  late  of  the  County  of  Essex  deceased,  and  by  an  order  of 

this  court  made  on  the day  of ,  19.  .  . ,  it  was 

ordered  that  cause  be  shown  before  this  court  on  the   

day  of ,  19.  .  .,  why  so  much  of  the  lands  and  the  real 

estate  of  the  said  John  Doe,  deceased,  should  not  be  sold  as 
will  be  sufificient  for  the  payment  of  his  debts. 

2.  On  the  day  in  the  aforesaid  order  named,  James  Doe,  one 
of  the  heirs  at  law  (or  devisees)  of  the  said  John  Doe,  deceased, 
appeared  before  this  court  and  entered  into  bond  to  your  pe- 
titioner in  the  sum  of dollars  with  C.  D.  and  E.  F.  as 

sureties,  conditioned  for  the  payment  to  your  petitioner  of  so 
much  money  as  might  be  required  to  pay  the  residue  of  the 
debts  of  the  said  John  Doe,  deceased,  and  the  just  expenses  and 
allowances  for  the  settlement  of  his  estate  which  should  remain 
after  the  personal  estate  should  be  applied  thereto,  and  this 

court  thereupon,  on  the day  of   19.  .  . ,  duly 

approved  said  bond  as  to  the  amount,  form  and  sureties 
thereof,  and  ordered  that  the  hearing  of  the  said  rule  to  show 
cause  stand  adjourned  until  the  amount  of  said  deficiency 
should  be  ascertained.  * 

3.  Your  petitioner  has  duly  applied  to  the  payment  of  the 
aforesaid  debts,  expenses  and  allowances  all  of  the  personal 
property  of  the  said  John  Doe,  deceased,  which  has  come  to  his 
possession  or  knowledge,  but  the  said  personal  property  was  not 
sufficient  to  pay  all  the  aforesaid  debts,  expenses  and  allow- 
ances, and  there  remains  unpaid  a  residue  thereof  amounting 
to dollars. 

4.  On  the   day  of   19.  .  .,  your  petitioner 

made  demand  upon  the  said  James  Doe,  C.  D.,  and  E.  F.,  his 
sureties  as  aforesaid,  for  the  payment  of  the  aforesaid  residue, 
but  they  have  refused  and  neglected  to  pay  the  same  or  any 
I)art  thereof. 

5.  Due  notice  of  this  application  has  been  given  to  the 
said  James  Doe,  the  said  heir  at  law  ;  and  to  C.  D.  and  E.  F., 
the  sureties  U])on  tlic  bond  given  by  him  as  aforesaid. 

Your  ])ctitioner  therefore  i)rays  that  this  court  may  order 
that  the  said  bond  given  by  James  Doe,  with  C.  D.  and  E.  F. 
as  sureties  as  aforesaid,  be  prosecuted  for  the  jjurpose  of  raising 


1096  Probate  Law  and  Practice. 

the   aforesaid   sum   of    dollars   necessary   to   pay   the 

residue  of  the  aforesaid  debts  of  the  said  intestate,  or  that  this 
court  may  make  such  order  for  the  sale  of  the  lands  and  real 
estate  whereof  the  said  John  Doe  died  seized  as  might  have 
been  made  if  the  said  bond  had  not  been  given. 

Dated  Newark,  N.  J.,  William  Doe. 
, ,  ig--- 


Stattj  of  New  Jersey 
County  oe  Essex 


=''^'  I ... 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true,  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this^ 
ic.  .  ..  at  Newark,  N.  J.,  before 


^''^^'^^ 'I  William  Doe. 


me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  144.     Order  for  Prosecution  of  Bond  or  for  Sale  of  Lands 
in  Default  of  Payment  by  Heirs  or  Devisees. 

[See  Orphans'  Court  Act,  section  89,  page  474,  supra,  and  Orphans' 
Court  Rule  31.  page  475,  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the  estate   of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  j       Lands  to  Pay  Debts. 

Order    for    Prosecution    of 
Bond  of  Heir  at  Lazv. 

This  court  having,  by  an  order  made  on  the day  of 

,  19.  .  . ,  ordered  that  cause  be  shown  before  it  on  the 

day  of ,  19.  . . ,  why  the  lands  and  real  estate 

of  John  Doe,  deceased,  should  not  be  sold  for  the  payment  of 
his  debts,  and  on  the  day  in  said  order  named,  James  Doe, 
one  of  the  next  of  kin  of  the  said  John  Doe,  deceased,  having 


Sale  of  Lands  for  Debts.  1097 

appeared  before  this  court  and  entered  into  bond  to  William 
Doe,  the  administrator  of  the  estate  of  the  said  John  Doe, 
deceased,  with  C.  D.  and  E.  F.  as  sureties,  conditioned  for 
the  payment  to  the  said  administrator  of  so  much  money  as 
might  be  required  to  pay  the  residue  of  the  debts  of  the  said 
John  Doe  and  the  just  expenses  and  allowances  of  the  settle- 
ment of  his  estate,  which  should  remain  after  the  personal 
estate  should  be  applied  thereto. 

And  this  court  having,  by  its  order  made  on  the day 

of ,  19.  . .,  duly  approved  the  said  bond,  and  directed 

that  the  proceedings  under  the  aforesaid  rule  to  show  cause 
stand  adjourned  until  the  amount  of  such  deficiency  should  be 
ascertained,  and  it  further  appearing  from  the  petition  of  Wil- 
liam Doe,  filed  herein,  that  said  deficiency  has  been  ascertained 

to  amount  to  the  sum  of   dollars,  and  that  the  said 

William  Doe  has  duly  demanded  from  the  said  James  Doe,  and 
from  C.  D.  and  E.  F.,  his  sureties  as  aforesaid,  the  payment 

of  the  said  sum  of dollars  required  to  pay  the  residue 

of  the  aforesaid  debts,  expenses  and  allowances,  but  that  they 
have  refused  and  neglected  to  pay  the  same  or  any  part  thereof : 
and  it  appearing  that  due  notice  of  this  application  has  been 
given  to  James  Doe,  heir  at  law,  and  to  C.  D.  and  E.  F.,  his 
sureties  as  aforesaid. 

It  is  thereupon,  on   this    day  of    ,    19..., 

ordered  that  the  said  bond  be  prosecuted  in  any  court  of  compe- 
tent jurisdiction  by  the  said  W^illiam  Doe,  administrator  as 
aforesaid,   for  the  purpose  of   raising  the  aforesaid   sum   of 

dollars  to  pay  the  aforesaid  residue  of  the  debts  of 

the  said  John  Doe,  deceased  (or  that  the  said  JVilliatH  Doc. 
administrator  as  aforesaid,  sell  the  folloiving  described  tracts 
of  land  ivhereof  the  said  John  Doe  died  seiccd,  to  zuit  (insert 
description  of  land)  for  the  payment  of  the  aforesaid  residue 
of  the  debts  of  the  said  John  Doe,  deceased,  and  that  after 
making  such  sale,  the  said  IVilliam  Doe  report  the  same  to 
this  court  for  its  approval  and  consideration,  and  it  is  further 
ordered  that  before  selling  the  aforesaid  lands,  the  said  Wil- 
liam Doe,  administrator  as  aforesaid,  first  enter  into  bond  to 
the  Ordinary  7i'ith  condition  prescribed  by  the  statute  in  such 


1098  Probate  Law  and  Practice. 

case   made   and   provided,   in   the   sum   of    dollars. 

with  tzvo  or  more  sureties  to  be  approved  by  this  court). 

W.   P.   M., 

Judge. 


III.     ON  PETITION  OF  JUDGMENT  CREDITOR. 

Form  145.  Notice  by  Judgment  Creditor  to  Administrator  to 
Sell  Lands  to  Pay  Debts. 

[See  Orphans'  Court  Act,  section  97.  page  471,  supra;  and  Orphans' 
Court  Rule  32.  page  472,  supra.] 

Essex  County  Orphans'  Court. 

_       ,                       .     ,  ^>   On    Petition    of    Tudsjment 

In   the   matter   of   the  estate   of      „     ■  .        ^       ^^  ,       .  ^ 

^r  ,      „         ,             ,  >  Creditor  for  bale  ot  Lands 

ohn  Doe,  deceased.  .      t-.       t^  1 

■>                '  j   to  Pay  Debts. 

Notice  to  Administrator. 

To  William  Doe,  administrator  of  the  estate  of  John  Doe, 
deceased : 

You  are  hereby  notified  that  I  require  you  to  take  proceed- 
ings according  to  law  to  have  sufficient  of  the  lands  whereof 
the  said  John  Doe,  deceased,  died  seized  sold  to  satisfy  an 
execution  issued  upon  a  judgment  obtained  by  me  against  you 
as  administrator  of  the  estate  of  the  said  John  Doe,'  deceased, 

in  the  Supreme  Court  of  the  State  of  New  Jersey  for 

dollars  damages  and  costs,  which  said  execution  has  been  re- 
turned wholly  unsatisfied  for  want  of  personal  estate  to  be 
levied  on  and  sold. 

And  you  are  further  notified  that  if  you  neglect  or  refuse 
to  take  such  proceedings  for  the  space  of  one  month  after  serv- 
ice of  this  notice  upon  you,  I  shall  on  the    day  of 

,  19.  . .,  at  10  a.  m.,  apply  to  the  Orphans'  Court  of 

the  County  of  Essex  at  the  Court  House  in  the  City  of 
Newark,  for  an  order  directing  that  such  sale  be  made. 

Dated  Newark,  N.  J.,  X.  Y. 

, ,  I9--- 

For  form  of  proof  of  service  see  Form  38. 


Sale  of  Lands  for  Debts.  1099 

Form  146.     Petition  of  Judgment  Creditor  for  Sale  of  Lands  of 
Decedent  to  Pay  Debts. 

[See  Orphans'  Court  Act,  section  97.  page  471,  supra,  and  Orphans' 
Court  Rule  32,  page  472,  supra.] 

Essex  County  Orphans'  Court. 

.-     ,  f"^    On    Petition   of    ludgment 

In   the   matter  ot   the  estate  of      „      ,.  o  ,1  V       , 

^  ,      „         ,  ,  >  Creditor  to   bell   Lands   to 

ohn  Uoe,  deceased.  \   ^      „  , 

J    Pay  Debts. 

Pctihoii. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  X.  Y.,  of  the    of in  the 

County  of   and  State  of   rcs{)ectfully  shows 

that : 

1.  On  the   day  of   ,   19.  . . ,  your  petitioner 

recovered  a  judgment  in  the  Supreme  Court  of  the  State  of 

New  Jersey  for   dollars  damages  and  costs  against 

William  Doe,  administrator  of  the  estate  of  John  Doe,  deceased, 
as  such  administrator ;  and  execution  upon  said  judgment  was 
duly  issued  and  returned  wholly  unsatisfied  for  want  of 
personal  estate  of  the  said  John  Doe,  deceased,  to  be  levied 
on  and  sold. 

2.  The  said  John  Doe  died  seized  of  certain  lands  and 
real  estate  within  the  said  County  of  Essex,  described  as 
follows:    (describe  the  lands). 

3.  On  the day  of ,  19.  .  .,  your  petitioner  duly 

required  the  said  William  Doe,  administrator  as  aforesaid, 
by  notice  in  writing  served  upon  him  on  the  day  last  above 
mentioned,  to  take  proceedings  to  obtain  a  sale  of  the  aforesaid 
lands  according  to  law ;  but  the  said  W' illiam  Doe  has  neg- 
lected and  refused  to  take  such  proceedings,  although  more 
than  one  month  has  elapsed  since  he  was  required  so  to  do  as 
aforesaid. 

Your  petitioner  therefore  prays  that  this  court  may  make  an 
order  in  the  name  of  William  Doe,  administrator  as  aforesaid, 
requiring  all  persons  interested  in  the  lands  tenements,  here- 
ditaments and  real  estate  of  the  said  John  Doe.  deceased,  to 
show  cause  before  this  court  whv  the  aforesaid  lands  of  the 


iioo  Probate;  Law  and  Practice. 

said  John  Doe,  deceased,  should  not  be  sold  to  pay  his  debts, 
and  that  such  further  proceedings  may  be  had  as  are  pre- 
scribed by  law  in  relation  to  the  sale  «^f  real  estate  where  the 
personal  estate  is  insufficient  to  pay  debts. 

Dated  Newark,  N.  J.,  X.  Y. 


State  ov  New  Jersey 
County  of  Essex 


'\ss. 


X.  Y.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this"^ 
dav  of 


U).  . 

.,  at  Newark,  N.  J.,  before 

me. 

J.  C.  F., 

Notary  Public  of  N.  J. 

y  X.  Y. 


Orphans'  Court  Rule  ^2,  provides  that  five  days  notice  of 
an  application  of  this  character  shall  be  given  to  the  executor 
or  administrator.  The  petitioner  may,  however,  take  a  rule 
requiring  such  executor  or  administrator  to  show  cause  why 
the  prayer  of  the  petition  should  not  be  granted,  which  rule 
may  be  served  in  such  manner  as  the  court  may  direct,  or  he 
may  incorporate  such  notice  in  his  demand  upon  the  adminis- 
trator to  take  proceedings  for  the  sale  of  lands  as  in  Form  145. 


Form   147.     Order   to   Show   Cause   Why   Lands   Should   Not   be 
Sold  to  Pay  Debts,  on  Application  of  a  Judgment  Creditor. 
[See  Orphans'  Court  Act,  section  97.  page  471.  supra,  and  Orphans' 
Court  Rule  32,  page  472,  supra.] 

Essex  County  Orphans'  Court. 

T     .1  .,  r   ^1  ,   ^        A   On    Petition    of    Judgment 

In  the  matter  of   the  estate   of      „      ,.  ^  ,,  -'      ^'^ 

T  1     -Tk       J  J  r  Creditor  to   Sell  Lands  to 

John  Doe,  deceased.  f    ^       .^  , 

J    Pay  Debts. 

Order  to  Slwzv  Cause. 


Sale  of  Lands  for  Debts.  iioi 

Apj)lication  having  been  made  to  this  court  bv  X.  Y..  a 
judgment  creditor  of  the  estate  of  John  Doe,  deceased,  for  the 
sale  of  the  lands  of  said  decedent  to  pay  his  debts,  and  it  ap- 
pearing that  the  said  X.  Y.,  has  obtained  a  judgment  against 
William  Doe.  administrator  of  the  estate  of  the  said  John  Doc. 
tleceased,  as  such  administrator,  and  that  the  execution  issued 
on  the  same  remains  wholly  unsatisfied  for  want  of  personal 
estate  to  be  levied  on  and  sold,  and  that  said  decedent  died 
seized  of  certain  real  estate. 

And  if  further  appearing  that  the  said  William  Doe,  adminis- 
trator as  aforesaid,  has  neglected  and  refused  to  take  pro- 
ceedings to  obtain  a  sale  of  the  said  real  estate  whereof  the  said 
John  Doe  died  seized  for  the  space  of  one  month  after  being 
required  by  the  aforesaid  X.  Y.  so  to  do,  and  it  appearing 
that  due  notice  of  said  application  has  been  given  to  W'illiam 
Doe,  administrator  as  aforesaid. 

And  the  Court  having  examined  into  the  circumstances  of 
the  case,  and  it  appearing  to  the  satisfaction  of  the  court  that 
the  whole  of  the  aforesaid  judgment  of  the  said  X.  Y.  remains 
unpaid  and  that  the  personal  estate  of  the  said  John  Doe  is 
insufficient  to  pay  the  said  judgment. 

It  is  thereupon,  on  this day  of ,  19.  .  . ,  or- 
dered that  all  persons  interested  in  the  lands,  tenements  and 
real  estate  of  the  said  John  Doe,  deceased,  appear  before  this 

court  at  the  Court  House  in  the  city  of  Newark  on  the 

day  of ,  19.  . . ,  at  10  a.  m.,  to  show  cause  why  so  much 

of  the  said  lands,  tenements  and  real  estate  of  the  said  John 
Doe,  deceased,  should  not  be  sold  as  will  be  sufficient  to  pay 
his  debts. 

It  is    further  ordered  that  this  order  be  published  in  the 

one  of  the  newspapers  of  this  state  for  six  weeks  at 

least  once  in  each  week.  ^'  '    ''' 

F.  0.  S.,  Jr.,  W.  P.  M., 

Surrogate.  Judge. 


1102  Probate  Law  and  Practice;. 

Form  148.     Citation  to  Administrator  to  Testify  on  Application 
for  Sale  of  Lands  by  Creditor. 

[See  Orphans'  Court  Rule  32,  page  472,  supra.] 

Essex  County  Orphans'  Court. 


State  of  New  Jersey, 
County  of  Essex. 


■1 


The  State  of  New  Jersey  to  William  Doe,  adminis- 

[l.  s.]     trator  of  the  estate  of  John  Doe,  deceased:     You 

are   hereby    cited    and    warned    to    be    and    appear 

before  the  Orphans'  Court  of  the  County  of   Essex  at  the 

Court  House  in  the  city  of  Newark,  on  the   day  of 

,  19.  . . ,  at  10  a.  m.,  to  testify  as  to  the  amount  of  the 

personal  estate  and  debts  of  the  said  John  Doe.  deceased,  in  the 
matter  of  the  application  of  X.  Y.,  a  judgment  creditor  of  the 
estate  of  the  said  John  Doe,  for  the  sale  of  lands  of  said  de- 
cedent to  pay  his  debts  and  to  further  abide  the  judgment  of 
the  court  in  the  premises. 

Witness  W.  P.  M.,  Esquire,  judge  of  said  Orphans'  Court 

at  the  City  of  Newark  this day  of ,  19.  .  . 

F.  G.  S.,  Jr., 
Surrogate. 

The  object  of  this  citation  is  to  bring  tlie  executor  or  ad- 
ministrator into  court  on  the  return  of  the  rule  to  show  cause 
to  testify  as  to  the  amount  of  the  personal  estate  of  decedent 
and  of  the  debts  presented  to  him.  The  subsequent  proceedings 
are  the  same  as  in  a  case  where  the  rule  to  show  cause  is 
granted  upon  the  application  of  the  executor  or  administrator. 


IV.     PROCEEDINGS    FOR    SALE    OF    LAND    IN    COUNTY 

OTHER  THAN  THAT  WHERE  DECEDENT 

RESIDED. 

Form  149.    Petition  for  Order  for  Sale  of  Lands  Situate  in  Coun- 
ty Other  than  that  in  which  Decedent  Resided. 

[See  Orphans'  Court  Act.  section  84,  page  480.  supra.] 

Hudson  County  Orphans'  Court. 


Sale  of  Lands  for  Debts.  1103 

}On  Petition  for  Sale  of 
Lands  Situate  in  County 
Other  than  that  in  which 
Decedent  Resided. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Hudson. 

The  petition  of  WilHam  Doe.  of  the of  in 

the  County  of    and  State  of    respectfully 

shows  that : 

1.  Your  petitioner  is  the  administrator  of  the  estate  of  John 
Doe,  late  of  the  County  of  Essex,  deceased,  who  died  seized  of 
certain  lands  and  premises  in  the  County  of  Hudson  aforesaid, 
described  as  follows:    (Here  insert  description  of  lands). 

2.  On  the    day  of    ,    19...,   the   Orphans' 

Court  of  the  County  of  Essex  made  its  order  whereby  it  appears 
that  the  personal  estate  of  the  said  John  Doe,  deceased,  is  in- 
sufficient to  pay  his  debts,  and  wherein  the  said  William  Doe. 
administrator  as  aforesaid,  was  ordered  to  sell  certain  lands  of 
the  said  John  Doe,  deceased,  (among  others  the  above  described 
lands)  for  the  payment  of  his  debts,  as  will  more  fully  and  at 
large  appear  by  an  authenticated  copy  of  such  order  hereunto 
annexed  and  made  a  part  hereof. 

Your  petitioner  therefore  prays  that  this  court  may  make  an 
order  directing  him  to  sell  the  above  described  lands  of  the  said 
John  Doe,  deceased,  situate  in  the  County  of  Hudson  as  afore- 
said. 

Dated  Newark,  N.  J.,  William  Doe. 
- -  I9--- 

State  of  New  Tersev,  ) 

y  ss 
County  of  Essex.       j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  .says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


J 104  Probate  Law  and  Practice. 

Subscribed  and  sworn  to  this^ 

m'"^?^^;-,' •;■;■■>        wiluamdoe. 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

There  should  be  annexed  to  this  petition  a  certified  copy  of 
the  order  for  sale. 


Form  150.     Order  for  Sale  of  Lands  in  County  Other  Than  That 
in  Which  Decedent  Resided. 

[See  Orphans'  Court  Act,  section  84,  page  480,  supra.] 

Hudson  County  Orphans'  Court. 

"^    On    Petition    for    Sale    of 
In   the  matter  of   the   estate   of  i    Lands     in     County     Other 
John  Doe,  deceased.  |    than    that    in    which    De- 

cedent Resided. 

Order  for  Sale  of  Lands. 

It  appearing  from  the  petition  of  W'illiam  Doe,  and  an 
authenticated  copy  of  an  order  of  the  Orphans'  Court  of  the 
County  of  Essex,  filed  herein,  that  the  said  William  Doe  is 
administrator  of  the  estate  of  John  Doe,  deceased;  that  the 
personal  estate  of  the  said  John  Doe,  deceased,  is  insufficient 
to  pay  his  debts ;  and  that  the  said  Orphans'  Court  of  the 
County  of  Essex,  on  the  day  of  ,  one  thou- 
sand   nine   hundred    and    ordered    the    said    William 

Doe,  administrator  as  aforesaid,  to  sell  certain  lands  whereof 
the  said  John  Doe  died  seized,  in  said  order  particularly  de- 
scribed, including,  among  others,  certain  lands  situate  in  the 
County  of  Hudson,  hereinafter  described,  for  the  payment  of 
the  debts  of  the  said  John  Doe,  deceased. 

It  is  thereupon,  on  this day  of  one  thou- 
sand nine  hundred  and  ,  Ordered  that  the  said  Wil- 
liam Doe,  administrator  as  aforesaid,  sell  the  following  de- 
.scribed  lands  in  the  County  of  Hudson,  whereof  the  afore- 
said John  Doe  died  seized,  to  wit :    ( Here  Insert  description  of 


Sale  of  Lands  for  Debts.  1105 

lands),  for  the  payment  of  the  debts  of  said  decedent,  and  that 
after  making  such  sale,  the  said  William  Doe  report  the  same 
to  this  court  for  its  approval  and  confirmation. 

And  it  is  further  ordered  that  the  said  William  Doe  enter 

into  bond  to  the  Ordinary  in  the  sum  of dollars,  with 

condition  prescribed  by  law,  with  two  or  more  sufficient  siu-e- 
ties  to  be  approved  by  this  court. 

G.  C.  T., 
Judge. 

For  form  of  bond  see  Form  137. 


V.     PROCEEDINGS  ON  SALE  OF  LAND  AT  PUBLIC  SALE. 

Form  151.     Advertisement  of  Sale  of  Lands  by  Executor,  Admin- 
istrator or  Guardian. 

[See  P.  L.  191-2,  page  131,  page  506,  supra.] 

By  virtue  of  an  order  of  the  Orphans'  Court  of  the  County 
of  Essex  made  on  the day  of ,  19.  . .  the  sub- 
scriber,  the  guardian  of  William  Doe.  a  minor,  will   on  the 

day  of  .........  19.  .,  at  .  .  o'clock  in  the  afternoon, 

sell  at  public  vendue,  upon  the  premises,  all  that  tract  of  land 
and  premises  situate  (describe  the  lauds  ordered  sold  by  the 
same  description  as  in  the  order). 

Dated  Newark,  N.  J..  Richard  Doe. 
, ,  19.  .  .  Guardian. 

This  notice  of  sale  must  be  set  up  for  the  p'eriod  of  four 
weeks  l)efore  the  time  appointed  for  such  sale  in  five  or  more 
public  places  in  the  comity,  one  whereof  must  be  in  the  town- 
.ship,  ward  or  city  where  such  real  estate  is  situate,  and  must 
also  be  published  at  least  four  weeks  successively  once  a  week 
next  preceding  the  time  appointed  for  selling,  in  two  news- 
papers printed  and  published  in  the  coimty  in  which  the  lands 
are  situate,  of  which  one  must  be  printed  and  published  either 
at  the  county  seat  of  said  county,  or  at  the  largest  municipality 
of  said  count V. 


I  io6  Probate  Law  and  Practice. 


'■  \  ss. 


Form  152.     Proof  of  Advertisement  of  Sale  in  Newspaper. 
[See  P.  L.  191.^.  page  131,  page  506,  supra.] 

State  of  New  Jersey, 
County  of  Essex. 

R.  S.,  of  full  age,  being  duly  sworn  upon  his  oath, 
deposes  and  says  that  he  is  the  publisher  of  a  news- 
paper printed   and  published  at   the    of    ,   in 

the   County   of    and    State   of   New   Jersey,   and   that 

the  foregoing  notice  of  sale  was  published  in  said  newspaper 
on  the day  of 19-  • ,  and  continued  to  be  pub- 
lished therein  for  four  weeks  successively  once  in  each  week. 

the  last  publication  thereof  being  on  the day  of , 

19.... 

Sul>scribed  and  sworn  to  this"^ 

day  of   , 

19.  ...  at  Newark,  N.  J.,  before 
ine. 

X.  Y., 

Notary  Public  of  N.  J. 


R.  S. 


Form  153.     Proof  of  Posting  Notice  of  Sale. 

[See  P.  L.  1912,  page  131,  page  506.  supra.] 

State  of  New  Jersey, 


County  of  Essex. 

Richard  Doe.  of  full  age.  being  duly  sworn  upon  his  oath. 

deposes  and  says  that  on  the day  of 19. . . . 

he  set  up  the  foregoing  advertisement  of  sale  at  the  following 
places:  (Jiere  describe  the  places  zvlierc  the  notice  zvas  set  up). 
the  same  being  five  public  places  in  the  County  of  Essex  and 

State   of   New   Jersey,   one   whereof   was   at    ,   in   the 

township  (ward  or  city)  of in  said  county,  in  which 

township  (or  zvard  or  city)  the  real  estate  described  in  said 
advertisement  of  sale  is  situate. 

Subscriljed  and  sworn  to  this' 

,f^yf  ;:-;--kT"^  Richard  Doe. 

i().  .  .,  at  Newark.  N.  J.,  before 

me,    . 

J.  C.  F., 

Notarv  Public  of  N.  T- 


Sale  of  Lands  for  Debts.  1107 

Form  154.     Notice  of  Intention  to  Present  Report  of  Sale. 
[See  Orphans'  Court  Rule  35.  page  510.  supra.] 

Essex  Couxtv  Orphans'  Court. 

In   the  matter  of   the   estate   of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Notice  of  Intention  to 
Make  Report  of  Sale. 

To  Mary  Doe  and  James  Doe : 

You  are  hereby  notified  that  pursuant  to  an  order  of  the 
Orphans'  Court  of  the  County  of  Essex,  I  have  sold  the  fol- 
lowing described  lands  of  the  estate  of  John  Doe,  deceased^ 

for  the  payment  of  his  debts,  to ,  for  the  sum  of  .... 

dollars,   the   said  lands   so   sold  by  me   being  situated    (Jicrc 

briefly  describe  the  lands),  and  that  on  the    day  of 

,    19..,   I    shall   present   my   report  of   such   sale   to 

the  said  Orphans'  Court,  and  apply  for  an  order  confirming 
the  same. 

Richard  Doe, 
Administrator  of  the  estate  of  John  Doe, 
deceased. 

Dated  Newark,  N.  J. 

,  ,  I9--- 

For  proof  of  service,  see  Form  38. 

This  notice  is  necessary  unless  the  consent  of  all  persons 
in  interest  is  endorsed  upon  the  report.  This  notice  must  be 
served  on  residents  of  this  state  five  days  before  its  return  and 
upon  non-residents  not  less  than  five  or  more  than  sixty  days 
as  the  court  may  by  order  direct. 


Form    155.     Petition    for    Order    Designating    Method    of    Service 
Upon  Non-Resident  Parties  in  Interest. 

[.See  Orphans'  Court  Rule  35,  page  510,  supra.] 

Essex  County  Orphans'  Court. 


iio8  Probate;  Law  and  Practice. 

In  the  matter  of  the  estate  of  |  On    Petition    for    Sale   of 
John  Doe,  deceased.  (  Lands  to  Pay  Debts. 

Petition  for  Order  Designating  Method 
of  Service  upon  Non-Residents. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  Wilham  Doe  of  the of in 

the  County  of and  State  of respectfully  shows 

that : 

1.  Your  petitioner  is  the  executor  of  the  last  will  and  tes- 
tament of  John  Doe,  late  of  the  County  of  Essex,  rleceased, 

and  on  the day  of ,  19.  . ,  pursuant  to  an  order 

of  this  court  made  on  the day  of ,  19.  • ,  sold 

certain  lands  of  the  said  John  Doe  for  the  payment  of  his 
debts. 

2.  Your  petitioner  is  about  to  make  report  of  the  aforesaid 
sale  to  this  court  for  confirmation  and  has  ascertained  that 
certain  persons  in  interest  reside  without  the  state  of   New 

Jersey,  to  wit :   James  Doe,  who  resides  at  No , 

Street,  in  the  City  of  St.  Louis,  in  the  state  of  Missouri ;    and 

Edith  Doe,  who  resides  at  No , Street  in  the  City 

of  St.  Petersburg,  in  the  State  of  Florida.  The  said  Edith 
Doe  is  an  infant  of  the  age  of  eighteen  years,  who  resides  with 
her  grandmother,  Mary  Doe.  No  guardian  has  been  appointed 
for  the  said  Edith  Doe  so  far  as  your  petitioner  has  been  able 
to  ascertain. 

Your  petitioner  therefore  prays  that  this  court  may  by 
order  direct  what  notice  of  the  presentation  to  this  court  of 
your  petitioners'  aforesaid  report  of  sale  shall  be  given  to  the 
said  persons  in  interest. 

Dated  Newark,  N.  J.,  ^^^^^^^^^  ^^^ 
, i9--- 


State  of  New  Jersey, 
County  oe  Essex. 


-      J 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Sale  of  Lands  for  Debts.  1109 

Subscribed  and  sworn  to  this"^ 
dav  of   „.  ^ 

^    ^.  '  I       X-      T       1     r  r  ^^  JLIJAM    DOK. 

19..,  at  Aewark,   A.  j..  betore  ( 
me, 

J.  C.  F., 

Notary  Public  of  N.    ]. 


J 


Form    156.     Order    Designating    Method    of    Service    upon    Non- 
Resident  Parties  in  Interest. 
[See  Orphans'  Court  Rule  35,  page  510,  supra. J 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  J  Lands. 

Order]   Dcs{g)iatiii(j    Metliod    of 
Service   Upon  Non-Residcnts. 

It  appearing  from  the  petition  of  William  Doe  filed  herein 
that  he  is  the  executor  of  the  last  will  and  testament  of  John 
Doe,  deceased ;    that  pursuant  to  an  order  of  this  court  made 

on  the    day  of    ,   19.  .  . ,  he  has  sold  certain 

lands  of  the  said  John  Doe,  deceased,  for  the  payment  of  his 
debts  and  that  he  is  about  to  make  report  of  said  sale  to  this 
court  for  confirmation,  and  it  further  appearing  that  James 

Doe,  who  resides  at  No Street,  in  the  City  of  St. 

Louis  in  the  State  of  Missouri  and  Edith  Doe,  who  resides  at 

No , Street  in  the  City  of  St.  Petersburg,  in  the 

State  of  Florida,  are  interested  herein  and  that  the  said  Edith 
Doe  is  a  minor  of  the  age  of  eighteen  years  and  resides  with 
her  grandmother,  Mary  Doe,  at  the  aforesaid  address,  and  it 
ajjpearing  that  no  guardian  has  been  appointed  for  the  said 
Edith  Doe. 

It  is  on  this day  of nineteen  hundred  and 

,  Ordered  that  the  said  William  Doe,  executor  as  afore- 
said, give  at  least  thirty  days'  notice  of  his  aforesaid  applica- 
tion, to  the  said  James  Doe  by  mailing  a  copy  of  said  notice 
addressed  to  him  at  his  aforesaid  residence  or  usual  place  of 
abode  with  the  j^ostage  thereon  ])repaid.  and  that  he  give  like 
notice  to  the  said  Edith  D(je  by  mailing  a  copy  of  said  notice 


mo  Probate  Law  and  Practice. 

addressed  to  the  said  Edith  Doe  and  also  one  addressed  to 
Mary  Doe  with  whom  she  resides  addressed  to  them  at  their 
aforesaid  residence  or  usual  place  of  abode  with  the  postage 
thereon  prepaid. 

W.  P.  M., 
Judge. 


Form  157.     Report  of  Sale  of  Lands  Made  by  an  Executor,  Ad- 
ministrator or  Guardian,  at  Public  Sale. 

[See  Orphans'  Court  Act,  section  85,  page  509,  supra,  and  Orphans' 
Court  Rules  34  and  35,  page  510,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Report  of  Sale. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

In  pursuance  of  an  order  of  this  court  made  in  the  above 
entitled  matter  on  the day  of 19.  .  . ,  direct- 
ing the  subscriber,  the  administrator  of  the  estate  of  John  Doe. 
deceased,  to  sell  certain  lands  of  the  said  John  Doe,  deceased, 
for  the  payment  of  his  debts,  which  lands  are  described  as 
follows:    {Here  insert  description  of  lands). 

I  do  hereby  report  that  I  did  give  notice  that  the  said  lands 
and  premises  would  be  exposed  for  sale  at  public  vendue  on 

the    day  of    ,   19.  .  . ,  at    ....    o'clock   in  the 

afternoon,  upon  the  said  premises,  by  public  notices,  signed 
by  myself,  and  set  up  at   five  or  more  public  places   in  the 

County  of  Essex,  one  whereof  was  in  the  Township  of 

{or  ivard,  if  in  a  city),  in  which  the  said  real  estate  is  situate, 
at  least  four  weeks  before  the  time  appointed  for  the  sale  of 
the  same,  and  also  by  publishing  said  notice  in  the   ........ 

and ,  two  of  the  newspapers  printed  and  published  in 

the  said  County  of  Essex,  in  which  the  said  real  estate  is  situ- 
ated, of  which  one  was  a  newspaper  published  at  the  City  of 
Newark,  County  of  Essex  and  State  of  New  Jersey,  being  the 
county  seat  of  {or  largest  municipality  in)  the  said  County  of 


Sale  of  Lands  for  Debts.  iiii 

Essex,  for  four  weeks  successively,  once  in  each  week  next 
preceding  the  time  appointed  for  the  said  sale. 

And  I  further  report  that  at  the  time  and  place  so  appointed 
and  advertised.  I  did  publicly  adjourn  the  said  sale  until  the 

day  of   ,   19.  . ,  at  the  hour  of   in  the 

forenoon,  'and  at  the  time  and  place  to  which  the  said  sale 
was  adjourned,  as  aforesaid,  did  expose  the  said  lands  and 
premises  to  sale  at  public  vendue  to  the  highest  bidder,  and 

then  and  there  bidding  for  the  same  the  sum  of 

dollars,  and  no  one  else  bidding  so  much  or  more  for 

the  same,  the  said  tract  of  land  and  premises  was  thereupon 

struck  off  and  sold  by  me  to  the  said   ,  at  the  price 

aforesaid. 

I  do  further  report  that  the  persons  interested  in  the  said 
lands  so  sold  by  me  as  aforesaid  are  as  follows,  to  wh :    Mary 

Doe,  a  sister  of  intestate,  who  resides  at  Number 

Street,  in  the of ,  in  the  County  of , 

and  State  of and  James  Doe,  a  brother  of  intestate, 

who   resides  at   Number    Street,   in   the   City 

of   ,  in  the  County  of   and  State  of    

All  of  the  aforesaid  persons  in  interest  are  of  full  age  with  the 
exception  of  the  aforesaid  James  Doe,  who  is  a  minor  of 
the  age  of  .  .  years  and  who  resides  with  his  sister.  Mary  Doe, 
at  her  above  named  residence  and  due  notice  of  my  inten^ 
tion  to  present  this  report  has  been  given  to  all  of  the  aforesaid 
persons  in  interest,  ( or  all  of  the  said  persons  in  interest 
have  consented  to  the  confirmation  of  said  sale  as  by  their 
consents  hereunto  annexed  ivill  more  fully  appear). 

Respectfully  .submitted  this   day  of 19.  . . 

Richard  Doe, 
Administrator  of  the 

Estate  of  John  Doe,  deceased. 


State  of  New  Jersey, 
County  of  Essex. 


1 


Richard  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  administrator  in  the  fore- 
going report  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 


1 1 12  Probate  Law  and  Practice. 


Richard  Doe. 


Subscribed  and  sworn  to  this^ 
day  of   

19...  at  Newark,  N.  J.,  before 
me. 

J.  C.  F., 

Notary  Public  of  N.  J. 
For  form  of  notice  of  application,  see  Form  154,  supra. 


'1 


Form  158.     Affidavit  of  Value  of  Lands  Sold  by  Order  of  Court. 

[See  Orphans'  Court  Rule  34,  pdge  510,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Affidavit  of  Value  of  Lands. 

State  of  New  Jersey, 


-     3 


County  of  Essex. 

A.  B.,  being  duly  sworn  according  to  law  upon  his  oath 
deposes  and  says  that  he  now  is  and  for  ....  years  last  past 

has  been  in  the  real  estate  business  in  the of \  . ., 

in  the  County  of  Essex  aforesaid  and  that  he  has  inspected 
the  property  described  in  the  foregoing  report. 

Your  deponent  further  says  that  he  is  familiar  with  the 
value  of  property  in  the  neighborhood  wherein  the  aforesaid 

lands  are  located,  and  that  in  his  opinion  the  sum  of 

dollars  is  the  fair  market  value  of  the  aforesaid  lands. 

Subscribed  and  sworn  to  this' 

day  of   (^  ^    g 

19. .,   at    ,    N.   J.,   before 

me, 

Q.  R.  Z. 

Notary  Public  of  N.  J. 

The  affidavits  of  at  least  two  persons  familiar  with  the  value 
of  property  in  the  neighborhood  where  the  lands  sold  are 
located  are  required. 


Sale  of  Lands  for  Debts.  1113 

Form  159.     Order  Confirming  Public  Sale  of  Lands  by  Executor, 
Administrator  or  Guardian. 

[See  Orphans'  Court  Act.  section  85.  page  509.  supra,  and  Orphans' 
Court  Rules  34  and  35,  page  510,  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the   estate   of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  J  Lands  to  Pay  Debts. 

Order  Confirming  Sale 
of  Lands. 

Upon  reading  and  tiHng  a  report  bearing  date  the   

day  of  ,  19.  .  .,  made  in  the  above  stated  matter  by 

Richarci  Roe,  administrator  of  the  estate  of  John  Doe,  de- 
ceased, of  the  sale  of  lands  made  by  him  piu'suant  to  an  order 

of  this  court  made  on  the    day  of    ,    19.  .  ., 

which  lands  are  described  as  follows:  {Here  insert  description 
of  lands  as  in  report  of  sale). 

And  it  appearing  by  said  report  that  the  said  administrator 
duly  advertised  the  time  and  place  of  said  sale  according  to 
law  and  did  at  the  time  and  place  so  advertised  sell  the  same 

at  public  vendue  to  the  highest  bidder ;    and  that    

bidding  therefor   the   sum   of    dollars,   and  being  the 

highest  bidder  for  the  same,  the  said  premises  were  then  and 
there  struck  off  and  sold  to  the  said 

And  it  further  appearing  that  due  notice  of  his  intention 
to  make  the  aforesaid  report  was  given  by  the  said  adminis- 
trator to  all  persons  in  interest  {or  that  all  persons  in  interest 
have  dnlx  consented  to  the  confirmation  of  said  sale  as  by  the 
consents  annexed  to  the  report  of  sale  filed  herein  ivill  more 
fully  appear),  and  no  cause  being  shown  or  appearing  against 
confirming  the  said  sale. 

It  is  thereupon,  on  this day  of one  thou- 
sand nine  hundred  and  Ordered,  Adjudged  and  De- 
creed that  the  said  sale  be  and  the  same  hereby  is  confirmed 
as  valid  and  efifectual  in  law  ;  and  it  is  further  ordered  that 
the  said  Richard  Doe,  administrator  as  aforesaid,  execute 
good  and  sufficient  conveyances  in  tiie  law  to  the  said 


1 1 14  Probate  Law  and  Practice. 

for  the  said  land  so  purchased  by  him  as  aforesaid,  upon  his 
complying  with  the  conditions  of  said  sale. 

W.  P.  M,, 

Judge. 
For  form  of  deed  see  Form  i6o. 


Form  i6o.     Deed  for  Land  Sold  by  Executor  or  Administrator  at 
Public  Sale. 

[See  Orphans'  Court  Act,  section  94,  page  514,  supra.] 

This  indenture,  made  on  the    day  of    ,  in 

the  year  of  our  Lord,  one  thousand  nine  hundred  and , 

between  William  Doe  of  the of ,  in  the  County 

of    ,  and   State  of    the  administrator  of  the 

estate  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 

party  of  the  hrst  part,  and  James  Smith,  of  the    of 

in  the  County  of and  State  of ,  party 

of  the  second  part : 

WITNESSETH,  That  the  said  party  of  the  first  part,  by  virtue 
of  an  order  of  the  Orphans'  Court  of  the  County  of  Essex,  in 

the  State  of  New  Jersey,  made  on  the  day  of 

,  in  the  year  of  otu'  Lord,  one  thotisand  nine  hun- 
dred and   ,  of  the  term  of   in  said  year, 

having  first  advertised  the  same  according  to  law.  did  sell 
the  lands  hereinafter  described  at  public  vendue  to  the  said 
party  of  the  second  part,  he  being  the  highest  bidder  therefor. 

for    the    sum   of    dollars,   and   did   report   the   said 

sale  to  the  said  Orphans'  Court  which  by  its  order  made  on 

the    day  of    in  the  year  of  our   Lord,  one 

thousand  nine  hundred  and did  confirm  the  aforesaid 

sale,  and  did  order  and  direct  the  said  party  of  the  first  part 
to  execute  a  good  and  sufficient  conveyance  in  the  law  to  the 
said  party  of  the  second  part  for  the  same. 

Now  This  Indenture  Witnesseth,  That  the  said  party 
of  the  first  part,  administrator,  as  aforesaid,  in  consideration 

of  the  sum  of Dollars,  to  him  paid  by  the  said  party 

of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, does  grant,  bargain,  sell  and  convey  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns. "all  that  certain  tract 


Sale  of  Lands  for  Debts.  1115 

or  parcel  of  land  and  i)reniises,  hereinafter  particularly  de- 
scribed, situate,  lying-  and  being  in  the    of    

in  the  County  of ,  and  State  of {here  insert  de- 
scription of  lands).  Together  with  the  hereditaments  and 
appurtenances  thereunto  belonging;  to  have  and  to  hold  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  to  the 
only  proper  use  of  the  said  party  of  the  second  part,  his  heirs 
and  assigns  forever,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

In  Witness  \\'herEof,  the  said  party  of  the  first  part  as 
such  administrator  as  aforesaid,  hath  hereunto  set  his  hand 
and  seal  the  day  and  year  first  above  written. 

Signed.  Sealed  and  Delivered       "|  William  Doe. 

in  the  presence  of  j        Administrator      of     the 

Estate  of  John  Doe. 
deceased. 

Annex  acknowledgment  as  in  Form  8a. 


VI.     PROCEEDINGS    ON    SALE    OF    LAND    AT    PRIVATE 

SALE. 

Form  161.     Report  of  Sale  of  Land  at  Private  Sale  by  Executor, 
Administrator  or  Guardian. 

[See  Orphans'  Court  Act,  section  85.  page  509,  supra;  4  Comp.  Stat., 
page  4686,  section  31.  page  505,  supra;  and  Orphans'  Court  Rules  34 
and  35,  page  510.  supra.] 

Essex  Countv  Orphans'  Court. 


In   the   matter  of   the   estate   of  )  On    Petition    for    Sale    of 
John  Doe,  deceased.  (  Lands  to  Pay  Debts. 


)  On    P( 

i  Lands 

Report  of  Sale. 


To  the  Orphans'  Court  of  the  County  of  Essex: 

In  inirsuance  of  an  order  of  this  court  made  in  the  above 
entitled  matter  on  the day  of 19.  .  . ,  direct- 
ing the  subscriber,  tlie  administrator  of  the  estate  of  John  Doe. 
deceased,  to  sell  certain  lands  of  the  said  John  Doe,  deceased, 
for  the  payment  of  his  debts,  which  lands  are  described  as 
follows:   (Here  insert  dcscriplion  of  lands). 


Jii6  Probate  Law  and  Practice. 

I  do  hereby  report  that  I  have  entered  into  a  contract  with 
one  John  Jones  for  the  sale  of  said  lands  to  him  for  the  sum 

of    dollars,   subject   to   the   confirmation   of   said   sale 

by  this  court,  and  I  further  report  that  the  persons  interested 
in  the  said  lands  so  sold  by  me  as  aforesaid  are  as  follows,  to 
with :    Mary  Doe,  a  sister  of  intestate,  who  resides  at  Number 

.  .  .  . , Street,  in  the  City  of ,  in  the  County  of 

and  State  of   and  James  Doe,  a  brother 

of    said    intestate,    who   resides    at    Number    .  ';:'v',"  V 

Street,  in  the  City  of    in  the  County  of   

and  State  of   The  said  Alary  Doe  is  of   full  age 

and  the  said  James  Doe  is  a  minor  of  the  age  of  i6 
years  and  resides  with  his  sister  Mary  Doe,  who  stands  in  loco 
parentis  to  him,  at  her  aforesaid  address.  Due  notice  of  my 
intention  to  make  this  report  has  l^een  duly  given  to  all  of  the 
aforesaid  persons  interested,  (or  all  of  the  said  persons  in  inter- 
est haz'e  consented  to  the  confirmation  of  said  sale,  as  by  their 
consents  hereunto  aniie.ved  will  more  fully  appear.) 

Respectfully  sul)mitted  this day  of ,  19.  .  .. 

Richard  Doe. 

State  of  New  Jersey,  ) 
County  of  Essex.      j 

Richard  Doe,  being  duly  sworn  according  to  law  upon  liis 
oath,  deposes  and  says  that  he  is  the  person  in  the  foregoing 
report  named  and  that  the  matters  and  things  therein  contained 
are  true  to  the  l)est  of  his  knowledge  and  belief. 


Richard  Doe. 


Subscribed  and  sworn  to  this" 

day  of    , 

19..,  at  Newark,  N.  J.,  before  | 
me,  j 

F.  R.  S., 

Notary  Public  of  N.  J. 

There  should  be  annexed  to  this  report  the  affidavits  of  two 
persons  familiar  with  the  value  of  the  property,  see  Form  158, 
supra. 

Five  days  notice  of  the  presentation  of  this  report  must  be 
given  to  all  persons  in  interest  who  are  residents  of  this  state, 
unless  their  consent  to  the  sale  is  indorsed  on  the  report  and 


Sale  of  Lands  for  Debts.  1117 

not  less  than  five  nor  more  than  sixty  days'  notice  upon  non- 
residents as  the  court  may  by  order  direct. 

For  form  of  notice  see  Form   154,  for  petition  and  order 
directing  service  on  non-residents  see  Forms  155  and  156. 


Form   162.     Order   Confirming  Sale  of  Lands  at  Private   Sale   by 
Executor,  Administrator  or  Guardian. 

[See  Orphans'  Court  Act,  section  85,  page  509,  supra;  4  Comp.  Stat., 
page  4686,  section  31,  page  505,  supra;  and  Orphans'  Court  Rules  34 
and  35.  page  510,  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the  estate   of  |  On    Petition    for    Sale    of 
John  Doe.  deceased.  j  Lands  to  Pay  Debts. 

Order  Confirming  Sale  of 
Lands. 

Upon  reading  and  filing  a  report  bearing  date  the   

day  of   ,   19..,  made  in  the  above  stated  matter  by 

Richard  Doe,  administrator  of  the  estate  of  John  Doe,  de- 
ceased, of  the  sale  of  lands  by  said  administrator  pursuant  to 

an  order  of  this  court  made  on  the day  of   , 

19.  .,  which  said  lands  are  described  as  follows:  {Here  insert 
description  of  lands  as  in  report  of  sale.) 

And  it  appearing  by  said  report  that  the  said  administrator 
has  entered  into  contract  with  one  John  Jones  for  the  sale  of 
said  lands  for  the  sum  of dollars,  subject  to  the  con- 
firmation thereof  by  this  court,  and  it  appearing  that  due  notice 
of  his  intention  to  make  the  aforesaid  report  to  this  court 
was  given  by  the  said  administrator  to  all  persons  in  interest 
(or  that  all  persons  in  interest  have  consented  to  the  confirma- 
tion of  said  sale,  as  b\  their  conscnis  thereto  anne.xed  zvilL 
more  fully  appear)  ;  and  the  court  ])eing  satisfied  that  the 
price  for  which  the  aforesaid  lands  were  sold  by  the  said 
administrator  was  a  fair  ])ricc.  and  that  the  said  sale  is  not 
injurious  to  the  interests  of  the  parties  concerned  herein,  and 
no  cause  l)eing  shown  or  appearing  against  confirming  such 
sale. 


iii8  Probate  Law  and  Practice. 

It  is  thereupon,  on  this day  of ,  One  thou- 
sand nine  hundred  and   ,  Ordered,  Adjudged,  and 

Decreed,  that  the  said  sale  be  and  the  same  hereby  is  con- 
firmed as  valid  and  effectual  in  law ;  and  it  is  further  ordered 
that  the  said  Richard  Doe,  administrator  as  aforesaid,  execute 
good  and  sufficient  conveyances  in  the  law  to  the  said  John 
Jones  for  the  lands  so  purchased  by  him  as  aforesaid,  upon 
his  complying  with  the  conditions  of  said  sale. 

W.  P.  M., 
Judge. 

For  form  of  Deed,  see  Form  163. 


Form  163.     Deed  of  Administrator  for  Land  Sold  at  Private  Sale. 
[See  Orphans'  Court  Act,  section  94,  page  514,  supra. ]^ 

This  Indenture,  Made  the day  of in  the 

year  of  Our  Lord,  one  thousand  nine  hundred  and   , 

between   William   Doe,   of   the    of    ,   in   the 

County  of and  State  of ,  the  administrator 

of  the  estate  of  John  Doe,  late  of  the  County  of  Essex,  de- 
ceased,  party  of   the   First   Part ;    and   James   Smith,   of  the 

of ,  in  the  County  of and  State  of 

party  of  the  Second  Part ; 

Witnesseth,  That  whereas  the  said  party  of  the  first  part, 
by  virtue  of  an  order  of  the  Orphans'  Court  of  the  County 

of  Essex,  in  the  State  of  New  Jersey,  made  on  the   

day  of ,  in  the  year  of  Our  Lord  one  thousand  nine 

hundred  and ,  of  the  term  of in  said  year,  did 

sell  the  land  hereinafter  described,  to  the  said  party  of  the  sec- 
ond part,  at  private  sale,  for  the  sum  of Dollars,  and 

did  report  the  said  sale  to  the  said  Orphans'  Court,  which, 

by  its  order  made  on  the day  of ,  in  the  year 

of   Our  Lord,  one  thousand  nine   hundred   and    did 

duly  confirm  the  said  sale  and  did  direct  the  said  party  of  the 
first  part  to  execute  a  good  and  sufficient  conveyance  in  the 
law  to  the  said  party  of  the  second  part  for  the  same. 

Now  This  Indenture  Witnesseth,  That  the  said  party 
of  the  first  part,  administrator  as  aforesaid,  in  consideration  of 

the  sum  of   dollars  to  him  paid  by  the  said  party  of 

the  second  part,  the  receipt  whereof  is  hereby  acknowledged. 


Sale  of  Lands  for  Debts.  i  1 19 

does  grant,  bargain,  sell  and  convey  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  all  that  certain  tract  or 
parcel  of  land  and  premises,  hereinafter  particularly  described, 

situate,  lying  and  being  in  the   of   ,  in  the 

County  of and  State  of 

(Insert  description  of  laiids  as  in  order.) 

Together  with  the  hereditaments  and  appurtenances  there- 
unto belonging ;  to  have  and  to  hold  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  to  the  only  proper  use  of 
the  said  party  of  the  second  part,  his  heirs  and  assigns  for- 
ever, according  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

In  Witness  Whereof,  the  said  party  of  the  first  part,  as 
such  administrator  as  aforesaid,  hath  hereunto  set  his  hand 
and  seal  the  day  and  year  first  above  written. 

Signed,  sealed  and  delivered  |  William  Doe  (L.  S.) 

in  the  presence  of  i- Administrator   of   the   estate   of 

X.  Y.  J  John  Doe,  deceased. 

State  of  New  Jersey,  | 
County  of  Essex,      j 

Be  It  Remembered,  That  on  this day  of , 

in  the  year  of  Our  Lord  one  thousand  nine  hundred  and  .  .  .  ., 
before  me,  the  subscriber,  a  Master  in  Chancery,  of  New  Jer- 
sey, personally  appeared  William  Doe,  the  administrator  of 
the  estate  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 
who,  I  am  satisfied  is  the  grantor  in  the  within  Deed  of  Con- 
veyance named ;  and  I,  having  first  made  known  to  him  the 
contents  thereof,  he  did  thereupon  acknowledge  that  he  signed, 
sealed  and  delivered  the  same  as  his  voluntary  act  and  deed, 
for  the  uses  and  purposes  therein  expressed. 

X.  Y., 

Master  in  Chancery  of  N.  J. 


72 


1 120  Probate  Law  and  Practice. 

VII.  PROCEEDINGS  BY  JUDGMENT  CREDITOR  OF  HEIR 
FOR  PAYMENT  OF  JUDGMENT  FROM  SURPLUS 
PROCEEDS  OF  SALE. 

Form  164.  Petition  of  Judgment  Creditor  of  Heir  for  Payment 
of  Judgment  from  Surplus  Proceeds  of  Sale  of  Lands  to  Pay 
Debts. 

[See  Orphans'  Court  Act,  section  96,  page  518,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of  the   estate   of  )   On    Petition    for    Sale    of 
John  Doe,  deceased.  j  Lands  to  Pay  Debts. 

Petition  of  Judgment  Cred- 
itor for  Payment  of  Judg- 
ment from  Surplus  Pro- 
ceeds. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  William  Roe,  of  the of ,  in 

the  County  of and  State  of respectfully  shows 

that : 

1.  James  Doe,  the  administrator  of  the  estate  of  John  Doe, 
late  of  the  County  of  Essex  aforesaid,  deceased,  was,  by  an 

order  of  this  court  made  on  the day  of ,  19.  .  ., 

ordered  to  sell  certain  lands  in  said  order  particularly  described 
whereof  the  said  John  Doe  died  seized,  for  the  payment  of  the 
debts  of  the  said  John  Doe,  deceased ;  and  the  said  James  Doe 
has  duly  sold  the  said  lands  in  pursuance  of  the  aforesaid 
order  of  this  court. 

2.  The  said  James  Doe,  administrator  as  aforesaid,  has 
stated  and  settled  his  final  account  as  such  administrator  in 
the  office  of  the  Surrogate  of  the  County  of  Essex,  and  the 
said  account  was  duly  allowed  by  this  court  by  its  decree  made 

on  the day  of ^9-  ■  • ,  and  on  such  settlement 

of  the  accounts  of  the  said  James  Doe,  administrator  as  afore- 
said, a  surplus  amounting  to  the  sum  of  dollars  re- 
mains from  the  sale  of  said  lands  in  the  hands  of  the  afore- 
said administrator,  after  the  payment  of  the  debts  of  the  said 
John  Doe,  deceased,  to  be  distributed  among  the  heirs  of  such 
intestate. 


Sale  of  Lands  for  Debts.  1121 

3-  <^)'i  the   day  of   19.  .  ..  your  pctitioner 

reco\ered  a  judgment  in  the  Supreme  Court  of  New  Jersey 

for    dollars   damages   and   costs   against    Henry   Doe, 

one  of  the  heirs  at  law  of  the  said  John  Doe,  deceased,  who, 
as  such  heir,  is  entitled  to  a  portion  of  the  aforesaid  surplus 
from  the  sale  of  the  lands  of  the  said  John  Doe,  deceased, 
as  aforesaid.  No  part  of  your  petitioner's  aforesaid  judgment 
has  been  paid,  but  the  whole  thereof  is  still  due  and  owing. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
directing  James  Doe.  administrator  as  aforesaid,  to  pay  your 
petitioner's  aforesaid  judgment  out  of  the  share  of  the  said 
Henry  Doe  in  said  surplus,  to  which  said  Henry  Doe  is  so 
entitled,  against  which  the  same  is  a  lien,  in  the  same  order 
of  priority  as  if  said  share  of  the  said  Henry  Doe  in  said 
lands  had  been  owned  by  him  in  severalty  and  the  same  had 
l)een  sold  under  execution. 

Dated  Newark,  N.  J., 

William    Roe. 
>   9  ly... 

State  of  New  Jerssjy,  | 
County  of  Essex.      j 

William  Roe.  being  duly  sworn  according  to  law  u])on  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  contained 
therein  arc  true  to  the  best  of  his  knowledge  and  belief. 


WirjjAM  Roe. 


Subscribed  and  sworn  to  this 

day  of   , 

19..,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary   Public  of  N.  J. 

Five  days'  notice  of  this  application  should  be  gi\cn  {o  the 
administrator  and  to  the  judgment  debtor. 

For  form  of  notice  sec  l^'orm  214.  for  proof  of  service  I'orm 
38. 


1 122  Probate  Law  and  Practice. 

Form  165.     Order  Directing  Payment  of  Judgment  Against  Heir 
of  Intestate  from  Surplus  Proceeds  of  Sale  of  Lands  for  Pay- 
ment of  Debts. 
[See  Orphans'  Court  Act,  section  96,  page  518,  supra.] 

Essex  County  Orphans'  Court. 


In   the  matter  of   the   estate   of  )  On  Sale  of  Lands  to  Pay 
John  Doe,  deceased.  f  Debts. 


Order  Directing  Payment 
of  Judgment  from  Sur- 
plus Proceeds. 

It  appearing  from  the  petition  of  WilUam  Roe,  filed  herein, 

that  lands  of  John  Doe,  late  of  the of   ,  in  the 

County  of  have  been  sold  by  James  Doe,  adminis- 
trator of  the  estate  of  the  said  John  Doe,  deceased,  by  order 

of  this  court  made  on  the  ....  day  of ,  19.  .  . ,  for  the 

payment  of  the  debts  of  the  said  John  Doe,  deceased,  and  it 
further  appearing  from  the  final  account  of  said  James  Doe, 
as  such  administrator,  which  account  was  duly  allowed  by  this 

court  by  its  decree  made  on  the day  of ,  19.  •  • , 

that  there  remains  in  the  hands  of  the  said  James  Doe,  ad- 
ministrator as  aforesaid,  after  the  payment  of  the  debts  of  the 
said  John  Doe,  deceased,  a  surplus  of  the  proceeds  of  sale 

amounting  to  the  sum  of    dollars,  to  be  distributed 

among  the  heirs  of  such  decedent;    and  it  further  appearing 

that  William  Roe,  the  petitioner  herein,  on  the day  of 

,  19.  -  .,  recovered  a  judgment  in  the  Supreme  Court 

of  New  Jersey  for  . dollars  damages  and  costs  against 

Henry  Doe,  one  of  the  heirs  at  law  of  the  said  John  Doe, 
deceased,  who,  as  such  heir,  is  entitled  to  a  portion  of  the 
aforesaid  surplus  from  the  aforesaid  sale  of  the  lands  of  said 
decedent,  and  that  no  portion  of  said  judgment  has  been  paid, 
but  that  the  whole  thereof  remains  due  and  owing,  and  due 
notice  of  this  application  having  been  given  to  the  said  Henry 
Doe,  heir  at  law,  and  James  Doe,  administrator  as  aforesaid, 
and  no  reason  appearing  or  being  alleged  to  the  contrary. 

It  is  thereupon,  on  this day  of  ,  19.  . ,  or- 
dered  that   James    Doe,    administrator    as    aforesaid,    pay   to 


FULFII^LMENT  OF  DECEDEXT's  CONTRACT.  II23 

the  said  William  Roe,  the  petitioner  herein,  his  aforesaid  judg- 
ment out  of  the  proceeds  of  the  sale  of  such  share  of  the  afore- 
said estate  against  which  the  same  would  be  a  lien,  had  such 
share  been  owned  in  severalty  by  the  aforesaid  James  Doe. 
and  in  the  same  order  of  priority  as  if  sold  under  execution. 

W.  P.  M., 
Judge. 


MISCELLANEOUS    PROCEEDINGS    RESPECTING 

LANDS. 

I.  FULFILLMENT  OF  CONTRACT  OF  DECEDENT. 

Foem   166.     Petition  for  Fulfillment  of  Contract   of  Decedent  for 
Sale  of  Lands. 

[See  Orphans'  Court  Act,  section  154,  page  427,  supra,  and  P.  L.  1915, 
p.  41,  page  428,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of  the   estate   ofl    O"  Petition  for  Fulfillment 
John  Doe,  deceased.  Y      f  ^^''^'''''  °^  Decedent 

J        for  Sale  of  Lands. 

Pet  il  ion. 

To  the  Orphans"  Court  of  the  County  of  Essex  : 

The   petition   of  X.   Y.,   of   the    of    in 

the  County  of and  State  of respectfully  shows 

that : 

1.  John   Doe,   late   of   said   County   (jf   Essex,   deceased,   in 

his  lifetime,  to  wit,  on  or  about  the day  of   

19.  . .,  made  an  agreement  for  the  sale  and  conveyance  to  your 
petitioner  of  the  following  described  lands,  tenements  and 
hereditaments  within  this  county  and  state,  to  wit:  {Describe 
the  lands). 

2.  On  the day  of ,  19.  .  ..  petitioner  ])ai(l  to 

the  said  John  Doe  the  sum  of dollars,  beini;-  the  i)ur- 

chase  price  of  the  aforesaid  premises,  and  he  was  thereupon 
placed  in  the  possession  of  such  lands,  tenements,  and  heredit- 
aments by  the  said  John   Doe,   (or  the  said  .1  ohu  Doe  made  a 


1124  Pkouatl;  Law  axd  Practice. 

contract  in  zcriting  for  the  sale  or  conveyance  to  yonr  pe- 
titioner of  certain  lands  7vithiii  this  state,  icliich  contract  is 
of  tJie  tenor  follozving,  to  i^'it:    {Insert  the  contract.)) 

3.  The  said  John  Doe  died  on  the   day  of    

19..,  intestate,  without  having  conveyed  the  aforesaid  lands, 
to  your  petitioner,  and  letters  of  administration  upon  his  estate 
have  been  duly  granted  by  the  Surrogate  of  the  County  of 
Essex  to  William  Doe. 

Your  petitioner  therefore  prays  that  this  court  may  decree 
the  fulfillment  of  the  said  contract,  and  order  the  said  William 
Doe.  administrator  as  aforesaid,  to  make  a  good  and  sufficient 
deed  of  conveyance  to  the  said  X.  Y.,  according  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

Dated  Newark,  N.  J.  X.  Y. 

, I9--- 

State  of  New  Jersey 


RSEV,  ") 


County  oe  Essex. 

X.  Y..  being  duly  sworn  according  t(j  law  upon  his  oath. 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Sul)scribed  and  sworn  to  this^ 
day  of   

IQ.  ...  at  Newark.  N.  J.,  before 
me. 

J.  C.  F., 

Notarv  Public  of  N.   J 


^  X.  Y 


Form  167.     Order  Fixing  Time  for  Hearing  and  Directing  Notice. 

[See  P.  L.  1915,  page  41.  page  428,  supra.] 

Essex  County  Orphans'  Court. 

^  .     ,  .  1   On  Petition  for  Fulfillment 

In   the  matter  of  the  estate  of         .    ^     ^      ^       ,    t-.        ,     ^ 
r  ,      T^        ,  ,  r  of    Contract    of    Decedent 

lohn  Doe,  deceased.  .      ^  1      c  r       j 

J   for  Sale  of  Lands. 

Order  Fixing  Day  for  Hearing. 


FULFILLMKXT  OF  DECEDEXT's  CoXTRACT.  I  1 25 

L'pon  reading  and  tiling  the  petition  of  X.  Y.  for  the  fulfill- 
ment of  a  certain  contract  in  writing  for  the  conveyance  of 
certain  lands  in  said  petition  particularly  described  between 
the  said  X.  Y.  and  John  Doe,  late  of  the  County  of  Essex, 
deceased,  and  praying  that  William  Doe,  the  administrator  of 
the  estate  of  the  said  John  Doe,  deceased,  may  be  directed  to 
fulfill  the  aforesaid  contract  and  to  make  a  good  and  suflficient 
deed  of  conveyance  for  the  said  land  to  the  said  X.  Y\ 

It  is  thereupon  on  this  day  of  one  thou- 
sand nine  hundred  and    ,  ordered  that    the 

day  of  ,  19.  .  . ,  at  ten  o'clock  in  the  fore- 
noon, at  the  Court  House  in  the  City  of  N^ewark.  be  and  the 
same  herebv  is  fixed  as  the  time  and  place  to  hear  the  afore- 
said application  of  the  said  X.  Y.,  and  it  is  further  ordered 
that  notice  of  said  application  be  published  in  two  newspapers 
published  in  the  County  of  Essex  and  posted  for  the  time  and 
in  the  manner  as  advertisements  for  the  sale  of  lands  by  a 
Sheriff  under  execution  are  by  law  required  to  be  set  up  and 
published.  W.  P.  M., 

Judge- 


Form  168.     Notice  of  Application  for  the  Fulfillment  of  Contract 
of  Decedent  for  Sale  of  Lands. 

[See  P.  L.  1915.  page  41,  page  428.  supra.] 

Pursuant  to  an  order  of  the  Orphans'  Court  of  the  County 

of  Essex  made  on  the    day  of    •  ly.  .  .  . , 

notice  is  hereby  given  that  the   day  of   , 

19.  .  .  .,  at  10  a.  m.,  at  the  Court  House  in  the  City  of  Newark, 
has  been  fixed  by  said  court  for  the  hearing  of  the  application 
of  the  subscriber  for  an  order  for  the  fulfillment  of  a  written 
contract  made  and  entered  into  by  John  Doe,  late  of  said 
County  of  Essex,  deceased,  in  his  lifetime,  for  the  sale  to  the 
subscriber  of  a  certain  tract  of  land,  to  wit:  {Describe  the 
land). 

Dated  Newark,  N.  J..  X.  Y. 
-  ...."..,  i9..- 

The  above  notice  must  l)c  set  up  and  published  in  the  same 
manner  as  advertisements  for  the  sale  of  lands  bv  a  sheriff 


TI26  Probate  Law  and  Practice. 

under  execution  are  required  to  be  set  up  and  published. 

For  form  of  proof  of  publishing  and  posting,  see  Forms  152 
and  153. 


Form  169.     Decree  for  Fulfillment  of  Contract  of  Decedent  for 
Sale  of  Lands. 

[See   Orphans'   Court   Act,   section    154.   page   427.   supra,   and   P.   L. 
1915,  p.  41,  page  428,  supra.] 

Essex  County  Orphans'  Court. 

T       .  ^,  -  ^,  ,^   On  Petition  for  Fulfillment 

in   the   matter   ot   the   estate   of        ^    ^  r    t^        , 

T  ,      r^        J  J  roi    Contract    of    Decedent 

)ohn  Doe,  deceased.  (    .       ^  , 

J    for  bale  of  Lands. 

Decree  for  FitlfiUiiiciit 
of  Contract. 

A  petition  having  been  presented  to  this  court  by  X.  Y., 
praying  for  the   fulfillment  of   an   agreement  made  by  John 

Doe,  late  of   ,  deceased,  who  departed  this  life  on  the 

day  of   ,  19.  .  .,  for  the  sale  and  conveyance 

of  certain  lands,  tenements,  and  hereditaments  within  this 
State  to  the  said  X.  Y.,  and  it  appearing  that  by  its  order 

made  on  the day  of   ,  19.  .  .,  this  court  fixed 

the day  of ,  19.  .  . ,  at  10  a.  m.,  at  the 

Court  House  in  the  City  of  Newark  as  the  time  and  place  for 
hearing  this  matter  and  it  further  appearing  that  notice  of  said 
application  and  of  the  time  and  place  fixed  for  hearing  the 
same  was  duly  given  for  at  least  two  months  prior  to  the  day 
fixed  by  this  court  for  hearing  this  matter  as  aforesaid  by  adver- 
tisements set  up  and  published  in  the  same  manlier  as  advertise- 
ments for  the  sale  of  lands  by  a  sherifif  under  execution  are 
required  to  be  set  up  and  published,  and  on  the  day  last  afore- 
said the  court  having  heard  the  allegations  and  objections  of 
the  parties  interested  and  it  being  duly  proved  to  the  satis- 
faction of  the  court  that  the  said  John  Doe,  late  of , 

deceased,  in  his  lifetime,  to  wit,  on  the day  of 

19.  .  .,  made  an  agreement  for  the  sale  or  conveyance  of  certain 
lands,  tenements  and  hereditaments  within  this  state  to  X.  Y.. 


Sale  of  Lands  r.v  Administrator  c.  t.  a.  1127 

to  wit,  [hiscrt  description  of  livuis)  ;  that  the  purchase  price  of 
said  lands  was  duly  paid  therefor  by  the  said  X.  Y.,  and  that 
the  said  purchaser  was  placed  in  the  possession  of  such  lands, 
tenements  and  hereditaments  by  the  said  John  Doe,  deceased, 
and  that  the  application  for  this  order  was  made  within  five 
years  from  the  making  of  such  agreement,   {or  that  the  said 

John  Doe,  late  of ,,  deceased,  in  his  lifetime,  to  icif,  on 

the day  of ,  ^9-  -,  made  a  certain  contract  in 

li'riting  for  the  sale  or  conveyance  to  X.  Y.,  of  certain  lands 
within  this  State  ivhich  contract  is  in  the  tenor  follozi'iiu/.  to 
zcit:  [insert  the  contract),  and  that  the  application  for  this 
order  -was  made  -within  fi-c'e  years  from  the  date  of  such  co)i- 
tract),  and  no  sufhcient  cause  appearing  to  the  contrary. 

It  is  thereupon  on  this  day  of  ,  19.  . ,  or- 
dered, adjudged  and  decreed  that  the  aforesaid  contract  (  or 
agreement)  be  fultilled,  and  that  the  said  William  Doe,  ad- 
ministrator as  aforesaid,  make  a  good  and  sufhcient  deed  of 
conveyance  to  the  said  X.  Y.  of  the  lands  herein  above  de- 
scribed, (or  and  it  is  further  ordered  that  upon  the  purchase 
money  of  said  lands,  tenements  and  hereditaments  being  paid 
by  the  said  X.  Y.,  to  the  said  William  Doe,  administrator  of  the 
said  John  Doe,  deceased,  in  manner  follonnng,  that  is  to  say 
(as  required  in  the  contract),  that  the  said  William  Doe,  ad- 
ministrator of  the  estate  of  the  said  John  Doe,  deceased, 
make  a  good  and  sufficient  deed  of  conveyance  to  the  said 
X.  Y.,  for  the  above-described  lands)  according  to  the  statute 
in  such  case  made  and  provided. 

W.  P.  Al., 
Judge. 


II.  SALE  OF  LANDS  BY  ADMINISTRATOR  WITH  THE 
WILL  ANNEXED  UNDER  POWER  OF  SALE  CON- 
TAINED IN  WILL. 

Form   170.     Petition   of  Administrator   for  Approval   of  Sale. 

[See   2   Comp.    Stat.,   page   2263,   section    14,   page  446,   supra;    and 
Orphans'  Court  Rules  33,  34,  and  35,  page  446,  supra.] 

Essex  County  Ori^hans'  Court. 


1128  Probate  Law  and  Practice. 


-N 


In   tlie   matter  of  the   estate   of 
Tolm  Doe,  deceased. 


On   Petition    for   Approval 
of   Sale  of   Lands  by  Ad- 
ministrate 
Annexed. 


ministrator    with    the    \Vill 


Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  X.  Y.,  of  the   of    in  the 

County  of    and   State   of    ,   respectfully   shows 

that : 

1.  John  Doe,  late  of  the of in  the  County  of 

and  State  of ,  departed  this  life,  leaving  a  last 

will  and  testament,  wherein  he  constituted  and  appointed 
William  Doe  sole  executor  thereof,  which  will  was  duly  ad- 
mitted to  probate  on  the   day  of   ,  19.  . ,  and 

letters  testamentary  thereon  duly  issued  to  the  said  William 
Doe,  the  executor  therein  named,  by  the  Surrogate  of  the 
County  of  Essex. 

2.  The  said  John  Doe,  in  and  by  his  said  will  invested  the 
said  William  Doe,  executor  as  aforesaid,  with  power  and  au- 
thority to  sell  and  convey  any  and  all  the  lands  of  which  said 
testator  died  seized,  in  manner  and  form  as  follows:  (here 
insert  pozuer  of  sale  as  contained  in  7vill). 

3.  On  the day  of   19.  . ,  the  said  William 

Doe,  executor  as  aforesaid,  died,  and  on  the   day  of 

19.  .,  letters  of  substitutionary  administration  with 

the  will  of  the  said  John  Doe,  deceased,  annexed,  were  duly 
issued  by  the  Surrogate  of  the  said  County  of  Essex  to  your 
petitioner,  who  thereupon  duly  entered  into  bond  to  the  Ordi- 
nary in  the  sum  of dollars,  with  sureties  appjroved  by 

said  Surrogate  and  with  condition  prescribed  by  law. 

4.  The  said  John  Doe  died  seized  of  a  certain  tract  of  land 

in  the of in  the  County  of  Essex  and  State 

of  New  Jersey,  to  wit:  {describe  the  land  ivhich  the  adtninis- 
trator  desires  to  sell)  which  said  land  consists  of  a  vacant 
building  lot  (or  otherwise  as  the  case  may  he). 

5.  A.   B.  has  recently  offered  your  petitioner  the   sum   of 

dollars  in  cash  for  the  premises  hereinbefore  described, 

and  has  made  a  deposit  of   dollars  on  account  of  the 


Sale  of  Laxds  by  Admixistrator  c.  t.  a.  1129 

same,  and  your  petitioner,  after  making  diligent  inquiry  among 
persons  acquainted  with  the  vahie  of  real  estate  in  that  vicinity, 
and  being  advised  that  the  said  sum  of  ....  dollars  offered  by 
the  said  A.  B.,  as  aforesaid,  is  a  fair  and  full  price  for  said 
premises,  has  accepted  the  same,  subject  to  the  approval  of  this 
court. 

6.  The  names  of  all  persons  interested  in  the  above  de- 
scribed lands  are  as  follows:    Mary  Doe,  the  widow  of  said 

testator,  who  resides  at  No Street,  in  the  City  of 

in  the  County  of and  State  of and  the 

following  named  children  of  the  said  testator,  to  wit :    Henry 

Doe.  who  resides  at  No.    ...    Street,   in   the   City  of 

in  the  County  of    ,  and  State  of    and 

James  Doe.  who  resides  at  No Street,  in  the 

of ,  in  the  County  of and  State  of All 

of  the  aforesaid  persons  in  interest  are  of  full  age,  and  have 
been  duly  served  with  notice  of  this  application  (  or  have  con- 
sented to  the  aforesaid  sale,  as  by  their  consent  hereunto  an- 
nexed zinll  more  fully  appear). 

7.  The  personal  property  of  the  estate  of  the  said  John  Doe. 
deceased,  now  in  the  hands  of  your  petitioner  as  such  adminis- 
trator amounts  in  value  to  the  sum  of dollars. 

Your  petitioner  therefore  submits  the  terms  of  the  proposed 
sale  of  said  lands  to  this  court  for  its  approval,  and  prays  that 
an  order  may  be  made  authorizing  him  as  substitutionary 
administrator  with  the  will  annexed  of  the  said  John  Doe, 
deceased,  to  execute  a  deed  of  conveyance  to  the  said  A.  B. 
for  the  above  described  premises  for  the  above-named  con- 
sideration. 

Dated  Newark,  N.  J.  V    \- 
'9-- 

State  ov  New  Jersen',  ) 
County  of  Essex.      | 

X.  \ .,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  contained  there- 
in are  true  to  the  best  of  his  knowledge  and  belief. 


1 130  Probate  Law  and  Practice. 

Deponent  further  says  that  the  value  of  the  estate  of  the 
said  John  Doe,  deceased,  now  in  his  hands  will  not  exceed 
the  sum  of dollars. 


X.  Y. 


Subscribed  and  sworn  to  this"" 

day  of   , 

19...,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Annexed  to  this  petition  should  be  the  affidavits  of  two 
real  estate  agents  giving  the  value  of  the  property  to  be  sold 
(see  Form  158,  supra).  Orphans'  Court  Rule  35  requires  that 
at  least  five  days  notice  of  applications  of  this  character  be 
given  to  all  persons  in  interest  residents  of  New  Jersey,  and 
not  less  than  five  nor  more  than  sixty  days  notice,  as  the  court 
may  by  order  direct,  to  non-residents,  which  last  notice  may 
be  sent  by  mail. 

For  form  of  notice  see  Form  154,  for  form  of  petition  and 
order  directing  methods  of  service  on  non-residents,  see  Forms 
155  and  156. 


Form    171.      Order    Confirming   Sale   of   Lands   by   Administrator 
With  the  Will  Annexed. 

[See  2   Comp.    Stat.,   page   2263,   section    14,   page   446,   supra;    and 
Orphans'  Court  Rules  33,  34,  and  35,  page  446,  supra.] 

Essex  County  Orphans'  Court. 


-\ 


In  the  matter  of  the  estate  of 
John  Doe,  deceased. 


On  Petition  for  Approval 
of  Sale  of  Lands  by  Ad- 
ministrator with  the  Will 
Annexed. 

Order  Confirming  Sale. 


A  petition  having  been  presented  to  this  court  by  William 
Doe,  substitutionary  administrator  with  the  will  annexed  of 
John  Doe,  deceased,  submitting  a  sale  made  by  the  said  Wil- 
ham  Doe  of  certain  lands  of  the  said  John  Doe,  deceased, 
hereinafter  described,   to   this   court   for   its   approval   and   it 


Sale  of  Lands  by  Administrator  c.  t.  a.  1131 

appearing  that  due  notice  of  this  application  lias  been  given 
to  all  persons  interested  in  said  lands  {or  that  all  persons  in- 
terested in  said  lands  have  duly  consented  to  the  sale  thereof 
as  by  their  consent  annexed  to  the  petition  filed  herein  will 
more  fully  appear),  and  this  court  being  satisfied   with   the 

terms  of  said  sale,  and  that  the  sum  of dollars  offered 

for  said  lands  is  a  full  and  fair  price  for  the  same. 

It  is  thereupon,  on  this day  of  ,  19.  .,  or- 
dered that  the  aforesaid  sale  of  the  lands  and  premises  in  said 
petition  described,  to  wit :  (describe  the  lands  as  in  the  peti- 
tion )  made  by  the  said  William  Doe,  administrator  as  afore- 
said, to  A.  B.,  for  the  sum  of  ....  dollars,  be  and  the  same  is 
hereby  approved  and  confirmed  pursuant  to  the  statute  in 
such  case  made  and  provided. 

And  the  court  having  examine/1  into  the  amount  of  the  bond 
given  by  said  administrator,  and  being  of  the  opinion  that  it 
is  not  sufficient  to  secure  the  proceeds  of  the  sale  of  the  afore- 
said lands,  it  is  further  ordered  that  the  said  William  Doe. 
administrator  as  aforesaid  give  additional  security  as  such 
administrator  by  entering  into  bond  to  the  Ordinary  in  the 
sum  of dollars,  with  two  or  more  sureties,  with  condi- 
tion according  to  law,  which  said  bond  shall  be  approved  by 
this  court. 

W.  P.  M., 
Judge. 

For  form  of  bond  see  Form  15. 


Form  172.     Deed  by  Substituted  Administrator  c.  t.  a. 

[vSee   2   Comp.    Stat.,   page   2263,    section    14.    page   446,    supra;     and 
Orphans'  Court  Rules  33,  34  and  35.  page  446,  supra.] 

This  Indenture  made  the day  of in  the 

year  of  Our  Lord,  one  thousand  nine  hundred  and be- 
tween W.  G.  C,  of  the   of   in  the  Countv  of 

and  State  of    Substituted  Administrator  with 

the  Will  Annexed  of  P.  C,  late  of  the of   in 

the  County  of and  State  of deceased,  party  of 

the  first  i)art.  and  A.  C.  B.,  of  the   of   in  the 

County  of   ,  and  State  of   ,  party  of  the  second 

part ; 


1 132  Probate  Law  and  Practice. 

WITNESSETH — That  Whereas,  the  said  P.  C,  in  and  by 

his  last  will  and  testament  bearing  date  of  the day  of 

,  one  thousand  nine  hundred  and  ,  duly  ad- 
mitted to  probate  by  the  Surrogate  of  the  County  of   

on  the   day  of   one  thousand  nine  hundred 

and    ,    did   appoint    his    wife,    S.    J.    C,   the   executrix 

thereof,  and  did  therein  and  thereby  authorize  and  empower 
the  aforesaid  executrix  to  sell  and  convey  in  fee  simple  at 
public  or  private  sale  any  parcel,  for  such  price  as  she  should 
deem  expedient,  of  the  real  estate  of  which  the  said  P.  C. 
might  die  seized,  wheresoever  situate  ; 

And  Whereas,  the  said  S.  J.  C,  executrix  as  aforesaid,  on 

the day  of one  thousand  nine  hundred  and 

,  after  taking  upon  herself  the  burden  of  administering 

the  said  will,  died,  leaving  certain  property  and  assets  of  the 

estate  of  the  said  P.  C.  unadministered,  and  on  the    

day  of ,  by  an  order  of  the  Surrogate  of  the  County 

of  Essex  the  said  W.  G.  C,  party  of  the  first  part,  was  duly 
appointed  substitutionary  administrator  with  the  will  of  the 
said  P.  C,  deceased,  annexed,  in  the  place  and  stead  of  the 
said  S.  J.  C. ; 

■  And  Whereas,  the  said  W.  G.  C,  party  of  the  first  part, 
sold  the  lands  hereinafter  described  to  the  said  A.  C.  B.,  party 

of  the  second  part,  for  the  sum  of dollars ; 

And  Whereas,  the  said  W.  G.  C,  party  of  the  first  part, 
duly  submitted  the  terms  of  said  sale  to  the  Orphans'  Court 
of  the   County  of   Essex,   which   by   its   order   made   on   the 

day   of    ,    one    thousand   nine    hundred    and 

,  did  approve  and  confirm  the  said  sale  pursuant  to  the 

statute  in  such  case  made  and  provided. 

Now  This  Indenture  WitnessETh,  that  the  said  W.  G.  C, 
administrator  as  aforesaid,  the  said  party  of  the  first  part,  in 

consideration  of  the  said  sum  of dollars  to  him  in  hand 

paid  by  the  said  party  of  the  second  part,  the  receipt  whereof 
is  hereby  acknowledged,  has  granted,  bargained,  sold,  aliened, 
remised,  released,  conveyed  and  confirmed  and  by  these  pres- 
ents does  grant,  bargain,  sell,  alien,  remise,  release,  convey  and 
confirm  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever,  all  that  certain  tract  or  parcel   of  land  and 


Exchange  of  Lands.  1 133 

premises  hereinafter  particularly  described  situate,  lying  and 
being  in  the  City  of-  Newark,  in  the  County  of  Essex,  and 
State  of  New  Jersey  {here  insert  description  of  premises)  : 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in  any  wise  ap- 
pertaining; and  the  reversion  and  reversions,  remainder  and 
remainders,  rents,  issues  and  profits  thereof;  and  also  all 
the  estate,  right,  title,  interest,  property,  possession,  claim  and 
demand  whatsoever,  both  in  law  and  equity,  which  the  said 
testator  had  in  his  lifetime  and  at  the  time  of  his  decease," and 
which  the  said  party  of  the  first  part  has,*in  and  to  the  above 
granted  premises  and  every  part  or  parcel  thereof,  with  the 
appurtenances  thereto. 

To  Have  and  to  Hold  all  and  singular  the  above  granted 
premises  together  with  the  appurtenances  and  every  part  there- 
of unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  according  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

And  the  Said  Party  of  the  First  Part,  for  himself,  his 
heirs,  executors  and  administrators,  does  covenant,  promise 
and  agree  to  and  with  the  party  of  the  second  part  that  he 
has  not  made,  done  or  suffered  any  act.  matter  or  thing  what- 
soever as  such  substituted  administrator  with  the  will  of  the 
said  P.  C.  deceased,  annexed,  as  aforesaid,  whereby  the  above 
granted  premises  or  any  part  thereof  are  or  may  be  impeached. 
charged  or  encumbered  in  any  manner  wliatsoever. 

In  Witness  Whereof  the  said  party  of  the  first  part  has 
hereunto  set  his  hand  and  seal  the  day  and  year  first  above 
^vritten.  \V.  G.  C.  [l.  s.] 

Signed,  sealed  and  delivered  iiH  Sul)stituted  Administrator 
the  presence  of  Lwith  the  Will  Annexed  of 

X.  Y.     J  P.  C.  Decea.sed. 

Annex  acknowledgment  as  in  Form  8a. 


III.      EXCHANGE    OF    LANDS    BY    EXECUTORS. 
Form  173.     Petition  for  Order  Authorizing  Exchange  of  Lands. 
[.See  I'.  I,.  1912.  (jagc  466,  pa«c  437.  sui^ra.] 

Essex  Coitnt\-  Orimians'  Court. 


1 134  Probate  Law  and  Practice;. 

-       ,  ,    ,  -"^   On     Petition     for     Order 

In   the   matter  oi   the   estate   of      „      ,,       .         t-     i  ,       r 

r  ,      ^        ,  ,  yConnrmmff    Exchangre     of 

lohn  Doe,  deceased.  I  t       i 

J  Lands. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the   of    , 

in  the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows,  as  follows : 

1.  Your  petitioner  is  the  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  late  of  the    of    a ,  in  the 

County  of  Essex,  and  State  of  New  Jersey,  deceased.     On  the 

day  of ,  19..,  the  said  will  was  duly  admitted 

to  probate  by  the  Surrogate  of  the  County  of  Essex,  and  let- 
ters testamentary  thereon  duly  issued  to  your  petitioner. 

2.  The  said  John  Doe  in  and  by  his  aforesaid  will  author- 
ized and  empowered  your  petitioner  to  sell  any  and  all  of  the 
lands  whereof  the  said  John  Doe  died  seized,  and  to  retain 
the  proceeds  from  the  sale  of  such  lands  and  to  expend  the 
income  arising  therefrom  for  the  support  of  James  Doe,  the 
infant  son  of  said  testator. 

3.  The  only  land  whereof  the  said  John  Doe  died  seized  is 
a  certain  tract  of  land  in  the  City  of  Newark,  in  the  County- 
of  Essex  aforesaid,  bounded  and  described  as  follows:  (Here 
insert  description   of  land)  ;   said   lands   are   worth,   as   your 

petitioner  is  reliably  informed,  the  sum  of dollars  and 

consist  of   acres,  are  unencumbered,  but  unimproved 

and  wholly  unproductive  of  revenue,  and  your  petitioner  is 
without  funds  with  which  to  pay  the  taxes  thereon,  or  to  pro- 
vide for  the  maintenance  of  testator's  infant  son  as  directed 
by  his  said  will. 

4.  Your  petitioner  has  been  and  is  wholly  unable  to  pro- 
cure a  purchaser  for  said  lands,  or  any  part  thereof,  the 
said  lands  being  so  situate  as  to  be  valuable  only  in  the  hands 
of  some  person  who  would  cut  streets  through  the  same  and 
otherwise  develop  the  same  as  a  single  tract ;  and  your  peti- 
tioner is  without  funds  to  enter  upon  an  enterprise  of  this 
character. 

5.  One  James   Smith,   of   the    of    in   the 

County  of and  State  of   has  ofifered  to  ex- 


Exchange  of  Lands.  i  135 

change  certain  lands  owned  by  him  in  the  City  of  Newark,  in 
the  County  of  Essex  aforesaid,  for  the  lands  whereof  the 
said  John  Doe  died  seized  as  aforesaid,  the  lands  so  owned  by 
the  said  James  Smith  being  described  as  follows :  (Here  insert 
description  of  lands). 

The  above  described  lands  are  unencumbered,  and  are  situ- 
ate in  an  attractive  residential  portion  of  the  City  of  Newark 
aforesaid,  and  there  are  built  thereon   ....    dwelling  houses. 

which  produce  an  annual  net  income  of   dollars,  and 

are  worth,  as  your  petitioner,  after  a  careful  investigation  of 

the  matter,  verily  believes,  the  sum  of    dollars ;    and 

your  petitioner,  believing  that  it  would  be  to  the  advantage 
of  the  estate  of  the  said  John  Doe.  deceased,  that  the  lands 
whereof  the  said  John  Doe  died  seized  be  disposed  of  by  an 
exchange  for  the  above  described  lands  owned  by  lames 
Smith,  as  aforesaid,  has  entered  into  a  contract  with  the  said 
James  Smith  for  such  exchange,  subject  to  the  approval  of 
this  court. 

6.  The  persons  interested  in  this  proceeding  are ,  of 

the of   in  the  County  of   .  . .  .  .  .   and  State  of 

:    of  the    of    in   the 

County  of   and  State  of   and   

of  the    of    in  the  County  of    

and  State  of legatees  and  devisees  named  in  the  said 

last  will  and  testament  of  John  Doe,  deceased :    all  of  the 

foregoing  are  of  full  age.  except    who  is  a  minor 

and  resides  with  his  father   ,  at  the  above  named 

address. 

Your  petitioner  therefore  prays  that  this  court  may  make 
its  order  approving  and  confirming  such  exchange  and  direct- 
ing the  conveyance  of  the  said  lands  whereof  the  said  John 
Doe  died  seized  to  the  said  James  Smith,  upon  the  conveyance 
by  him  to  your  petitioner,  executor  as  aforesaid,  of  the  above 
described  lands  so  owned  by  him. 

Dated  Newark,  N.  J.,  Wiixiam  Dok. 

, ,  I9--- 

State  of  New  Jersey,  ") 
County  of  Essex,      j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
7Z 


1136  Probate  Law  and  Practice. 

oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  trne  to  the  best  of  his  knowledge  and  behef. 

Subscribed  and  sworn  to  this'^ 

day  of   , 

19..,  at  Newark,  N.  J.,  before 


me. 


William  Doe. 


J.  C.  F., 

Notary  Public  of  N.  J. 

Affidavits  of  two  real  estate  agents  as  to  the  value  of  each 
of  the  two  tracts  of  land  should  be  annexed  to  the  petition. 
See  Form  158.  Notice  of  this  application  should  be  given  to 
all  persons  in  interest,  or  the  petitioner  should  obtain  a  rule 
requiring  all  persons  in  interest  to  show  cause  why  such  ex- 
change should  not  be  made,  which  rule  may  be  served  in  such 
manner  as  the  court  may  direct. 


Form    174.      Rule    to    Show    Cause    on    Petition   of    Executor   for 
Order  Authorizing  Exchange  of  Land. 
[See  P.  L.  1912,  page  466,  page  437,  supra.] 

Essex  County  Orphans'  Court. 

T      ,,  ..         r  ^t  <-  *.        i^   ^"      Petition     for     Order 

In  the  matter  of  the   estate   of  ^      -      .         ^     , 

T  1      T>        J  ,  yConnrmmg     Exchange     of 

|ohn  Doe,  deceased.  I   t       1 

J   Lands. 

Rule  to  Show  Cause. 

William  Doe  having  presented  his  petition  whereby  it  ap- 
pears that  he  is  the  executor  of  the  last  will  and  testament 
of  John  Doe,  late  of  the  County  of  Essex,  deceased,  and  that 
in  and  by  his  aforesaid  will  the  said  John  Doe  authorized  the 
said  William  Doe,  as  such  executor,  to  sell  any  and  all  of  the 
lands  whereof  the  said  John  Doe  died  seized,  and  to  retain 
the  proceeds  thereof  upon  certain  trusts  in  said  will  created, 
and  declaring  and  alleging  that  it  would  be  to  the  advantage 
of  the  estate  of  the  said  John  Doe,  deceased,  that  certain 
lands  whereof  the  said  John  Doe,  deceased,  died  seized,  be  ex- 


Exchange  of  Lands.  i  137 

changed  for  lands  owned  by  James  Smith,  which  lands  of 
the  said  John  Doe.  deceased,  are  bonnded  and  described  as 
follows:  {here  insert  description  of  lands). 

And  it  further  appearing  that  the  said  William  Doe.  ex- 
ecutor as  aforesaid,  has  entered  into  a  contract  with  said 
James  Smith  for  the  exchange  of  the  aforesaid  lands  of  the 
said  John  Doe,  deceased,  for  the  said  lands  owned  by  the  said 
James  Smith,  which  said  lands  are  described  as  follows:  ^Iierc 
insert  description  of  lands). 

And  it  further  appearing  that   and   and 

are  the  persons  interested  under  the  provisions  of  the 

will  of  the  said  John  Doe,  deceased. 

It   is   thereupon,   on   this    day   of    19.  . , 

ordered  that  the  aforesaid   and   and 

show  cause  before  this  court,  on  the day  of- 

19.  .,  at  ten  a.  m.,  at  the  Court  House  in  the  City  of  Newark. 
why  the  aforesaid  contract  made  by  William  Doe,  executor  as 
aforesaid,  for  the  exchange  of  the  above-described  lands 
whereof  the  said  John  Doe  died  seized,  as  aforesaid,  for  the 
lands  of  James  Smith,  hereinbefore  described,  should  not  be 
confirmed. 

It  is  further  ordered  that  a  true  but  uncertified  copy  of  this 
order   and   of   the    petition    herein    be    served    upon    the    said 

and    and    personally  or   by   leaving   a 

copy  thereof  at  each  of  their  residences  or  usual  places  of 
abode  with  some  person  over  the  age  of  fourteen  years,  within 
.  .   days  from  the  date  hereof. 

W\  V.M.. 

Judge. 


Form    175.      Order   Confirming   Exchange   of   Land   by   Executor. 
[Sec  P.  I,.  1012,  page  466,  page  437,  supra.] 

Essex  County  Orphans'  Court. 

T  ,    .1  ,,  r  ^1  ^  ,        rl   On      Petition      for     (  )r(ler 

In   the   matter  of  the   estate   of  I    _,      . 

T  i,„  7>>         1  ,  >-Confirnnng     Exchange     of 

)ohn  Doe,  deceased.  \  ^  ^  ^ 

J  Lands. 

Order    Confirming/    li.vchanfjc 
of  Lands. 


1 138  Probate  Law  and  Practice. 

It  appearing  by  the  duly  verified  petition  of  William  Doe, 
filed  herein,  that  he  is  the  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  deceased,  and  that  in  and  by  his  said  will 
the  said  John  Doe  conferred  upon  the  said  William  Doe  power 
and  authority  to  sell  any  and  all  of  the  lands  whereof  the  said 
John  Doe  died  seized,  and  it  appearing  that  the  only  lands 
whereof  the  said  John  Doe  died  seized  consist  of  a  tract  of 
....  acres  of  unimproved  lands,  in  the  City  of  Newark,  in 
the  County  of  Essex  aforesaid,  and  in  said  petition  more  par- 
ticularly described,  and  that  the  petitioner  herein  has  been 
unable  to  sell  the  same,  and  is  thus  prevented  from  carrying 
out  the  terms  of  the  will  of  the  said  John  Doe.  deceased. 

And  it  further  appearing  that  the  said  petitioner  has  entered 
into  a  contract  with  one  James  Smith  to  exchange  the  afore- 
said lands,  whereof  the  said  John  Doe  died  seized  for  certain 

lands  owned  by  the  said  James  Smith,  in  the of 

in  the  County  of and  State  of  New  Jersey,  and  in  said 

petition  more  particularly  described,  which  said  lands  are  pro- 
ductive of  revenue,  and  it  appearing  that  the  rule  to  show  cause 
made  herein  has  been  duly  served  and  the  court  having  ex- 
amined into  the  matter,  and,  after  due  consideration  of  the 
facts  and  circumstances  of  the  case,  being  satisfied  that  it  will 
be  to  the  advantage  of  the  estate  of  the  said  John  Doe,  de- 
ce'ased,  that  the  aforesaid  lands  whereof  the  said  testator  died 
seized  be  disposed  of  by  an  exchange  for  the  aforesaid  lands 
owned  by  James  Smith  aforesaid. 

It  is  thereupon,  on  this day  of ,  one  thousand 

nine  hundred  and  Ordered.  Adjudged  and  Decreed. 

that  the  aforesaid  contract  entered  into  by  the  said  William 
Doe,  executor  as  aforesaid,  with  the  said  James  Smith,  for  the 
exchange  of  lands  as  aforesaid,  be  and  the  same  hereby  is  ap- 
proved and  confirmed,  and  that  the  said  William  Doe,  executor 
of  the  last  will  and  testament  of  the  said  John  Doe,  deceased, 
convey  the  said  lands  whereof  the  said  John  Doe  died  seized 
to  the  said  James  Smith,  which  said  lands  are  described  as 
follows :  {Here  insert  description  of  lands)  upon  the  con- 
veyance by  the  said  James  Smith  to  the  said  W^illiam  Doe,  ex- 


Insolvent  Estates.  1139 

editor  as  aforesaid,  of  the  following  described  lands:    (Here 
insert  dcscrif'tioii  of  lands). 

W.  P.  M., 
fudge. 


INSOLVENT  ESTATES. 

Form   176.     Application  of  Administrator   Representing   Estate  to 
be  Insolvent. 
[See  Orphans'  Court  Act,  section  loo,  page  584,  supra.] 

Essex  County  Orphans'  Coukt. 

In   the  matter  of  the   estate   of  |    On  Petition  for  Decree  of 

j  Inso! 

Petitiun. 


John  Doe,  deceased.  (  Insolvency. 


To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of ,  .,  in 

the   County   of    and   State   of    ,    respectfully 

shows  that :  • 

Your  petitioner  is  the  administrator  of  the  estate  of  John 

Doe,  late  of ,  deceased ;   and  according  to  the  best  of 

your  petitioner's  knowledge  and  belief  the  personal  and  real 
estate  of  the  said  John  Doe,  deceased,  is  insufficient  to  pay  his 
debts. 

Your  petitioner  therefore  prays  that  this  court  may,  in 
pursuance  to  the  statute  in  such  case  made  and  pro\ided,  direct 
him  to  give  public  notice  to  the  creditors  of  the  aforesaid 
estate  of  John  Doe,  deceased,  to  exhibit  to  him  their  claims 
under  oath  or  affirmation  within  such  time  as  this  court  shall 
direct. 

Dated  Newark,  N.  J., 

,(^  William  Doe. 

State  of  New  Jersey, 
County  of  Essex. 


\  ss. 


William  Doe.  being  duly  sworn  according  to  law  ui)on  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 


II40  Probate  Law  and  Pi^actice. 

petition   named,   and   that   the   matters   and   things   contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this~^ 

day  of   , 

19..,  at  Newark,  N.   J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  application  in  case  a  rule  to  limit  creditors  has 
been  obtained  see  Form  179. 


Wieliam  Doe. 


Form  177.     Order  Directing  Administrator  to  Notify  Creditors  to 
Exhibit  Claims. 

[See  Orphans'  Court  Act,  section  100,  page  584,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Order  Directing  Notice, 
to  Creditors. 

William  Doe,  administrator  of  the  estate  of  John  Doe,  de- 
ceased, having  by  application  in  writing  represented  to  this 
court  on  oath  that  according  to  the  best'of  his  knowledge  and 
belief  the  personal  and  real  estate  of  the  said  John  Doe,  de- 
ceased, is  insufficient  to  pay  the  debts  of  the  said  deceased. 

It  is  thereupon,  on  this  day  of  ,  19.  . ,  or- 
dered, and  the  said  William  Doe,  administrator  as  aforesaid, 
is  hereby  directed  to  give  public  notice  to  the  creditors  of  the 
estate  of  the  said  John  Doe,  deceased,  to  exhibit  to  the  said 
administrator  under  oath  or  affirmation  their  claims  and  de- 
mands against  the  said  estate  within  six  months  from  the 
date  of  this  order,  by  setting  up  such  notice  in  five  of  the  most 
public  places  in  the  county  for  the  space  of  two  months,  and 
also  by  advertising  the  same  at  least  once  in  each  week  for  the 

like  period  in   ,  one  of  the  newspapers  printed  in  this 

State. 

W.  P.  M.. 
Judge. 


Insolvent  Estates.  1141 

Form    178.     Notice    to    Creditors    of    Insolvent    Estate    to    Present 
Claims  to  Administrator. 

[See  Orphans'  Court  Act.  section  100.  page  584.  supra;    and  Orphans' 
Court  Rule  40.  page  588.  supra.] 

Pursuant  to  an  order  of  the  Orphans'  Court  of  the  County 

of  Essex  made  on  the day  of 19.  . ,  upon  the 

application  of  William  Doe,  administrator  of  the  estate  of 
John  Doe.  deceased,  notice  is  hereby  given  by  the  said  William 
Doe,  administrator  as  aforesaid,  to  the  creditors  of  the  said 
estate  of  John  Doe,  deceased,  to  exhibit  to  him  under  oath 
or  affirmation  their  claims  and  demands  against  the  said  estate 

within   ....   months  from  the day  of   ,  19.  . , 

(the  date  of  the  order),  or  they  will  be  forever  barred  from 
j)rosecuting  or  recovering  the  same. 

Dated  Newark,  N.  J.,  William  Doe, 
, ,  19.  .  .  Administrator. 

For  proof  of   posting  notice   see   Form    115,   for  proof  of 
publication  see  Form  114. 


Form  179.  Application  of  Administrator  Representing  Estate  to 
be  Insolvent  in  Case  Rule  to  Limit  Creditors  Has  Been  Ob- 
tained. 

[See  Orphans'  Court  Act,  section  109,  page  585,  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the   estate  of  ")  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex  : 

The   petition   of    William    Doe,   of   the    of    ....... 

in  the  County  of    and   State  of    ,   respectfully 

shows  that : 

Your  petitioner  is  the  administrator  of  the  estate  of  John 

Doe,  late  of ,  deceased.     On  the day  of 

19...,  the  Surrogate  of  the  County  of  Essex  made  an  order 

directing  him  to  give  public  notice  to  the  creditors  of  the  said 

estate  to  bring  in  their  debts,  demands  and  claims  against  the 


1 1 42  Probate  Law  and  Practice. 

said  estate  under  oath  within    months  from  the  date 

of  said  order ;  and  according  to  the  best  of  petitioner's  knowl- 
edge and  behef  the  real  and  personal  estate  of  the  said  dece- 
dent is  insufficient  to  pay  his  debts. 

Your  petitioner  therefore  prays  that  this  court  will  decree 
the  said  estate  of  John  Doe,  deceased,  to  be  insolvent,  and 
for  such  other  and  further  orders  and  decrees  in  the  premises 
as  are  by  law  required  and  as  to  this  court  shall  seem  meet. 

Dated  Newark,  N.  t.,  „,  ^ 

William  Doe. 
,  19---- 

State  oe  New  Jersey,  | 
County  of  Essex.      j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and 
belief. 


Subscribed  and  sworn  to  this^ 

day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


William  Doe. 


Form  180.     Order  Fixing  Time  to  Make  Report  of  Claims. 

[See  Orphans'  Court  Act,  section  103,  page  593,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Order  Fixing  Time  to  Make 
Report  of  Claims. 

It  appearing  that  by  an  order  of  the  Surrogate  of  the  Coun- 
ty of  Essex,  made  on  the day  of ,  19.  .  .,  Wil- 
liam Doe,  administrator  of  the  estate  of  John  Doe,  deceased, 
was  directed  to  give  public  notice  to  the  creditors  of  the  estate 


Insolvent  Estates.  1143 

of  the  said  John  Doe,  deceased,  to  bring  in  their  debts,  demands 

and  claims  against  the  said  estate  under  oath,  within    

months  from  the  date  of  said  order,  and  the  said  W'ilham  Doe 
having  by  his  petition  hied  herein,  fepresented  that,  according 
to  the  best  of  his  knowledge  and  belief,  the  real  and  personal 
estate  of  the  aforesaid  decedent  is  insufficient  to  {)ay  his  debts, 
and  prayed  that  the  aforesaid  estate  might  be  decreed  insolvent. 
It  is  thereupon,  on  this  day  of  i9-  •  • ,  or- 
dered that ,  the day  of ,  19.  .  . ,  be  and 

the  same  hereby  is  fixed  for  the  said  administrator  to  make  re- 
port to  this  court  of  the  several  claims  and  demands  which 
may  be  exhibited  against  said  estate,  and  to  exhibit  therewith 
under  oath  an  accotmt  of  the  moneys,  goods,  chattels,  rights 
and  credits  of  the  said  decedent  which  have  come  to  his  knowl- 
edge, hands  or  possession,  and  also  an  inventory  of  the  real  es- 
tate of  said  decedent  which  has  come  to  his  knowledge,  and 
the  value  thereof  as  near  as  may  be,  and  for  the  hearing  of  the 
application  that  said  estate  be  decreed  insolvent ;  and  it  is 
further  ordered  that  the  said  William  Doe  give  due  notice  ac- 
cording to  the  statute  in  'such  case  made  and  provided  of  his 
intention  to  make  such  report  and  application. 

W.  P.  M., 
Judge. 

The  above  order  is  only  necessary  in  case  of  proceedings 
brought  after  rule  to  limit  creditors  has  been  taken  or  in  case 
a  special  application  to  fix  the  time  for  presenting  the  report  of 
claims  and  assets  is  necessary  by  reason  of  such  report  not 
having  been  filed  within  the  time  limited  by  law. 


Form   181.     Notice   of   Intention   to   Make   Report   of   Debts  and 
Assets. 
[See  Orphans'  Court  Act,  section  103,  page  593,  supra.] 

Essex  County  Orphans'  Court. 


tate   of  I  On   Petition 
j  Insolvency. 


In   the   matter  of  the   estate   of  )  On  Petition   for  Decree  of 
John  Doe,  deceased. 


Notice  of  fnfciitioii  to  Make 
Report  of  Debts  and  Assets. 


J 144     '  Probate  Law  and  Practice. 

Notice  is  hereby  given  to  the  creditors  of  John  Doe,  de- 
ceased, and  other  persons  interested,  that  a  report  of  the  sev- 
eral claims  and  demands  exhibited  against  the  estate  of  the 
said  decedent,  as  well  as  an  account  of  the  personal  estate  and 
an  inventory  of  the  real  estate  of  the  said  decedent,  and  the 
value  thereof  as  near  as  may  be,  will  be  made  to  the  Orphans' 

Court  of  the  County  of  Essex  on  the  ....;.  day  of , 

19...,  by  the  subscriber,  the  administrator  of  the  estate  of. 
John  Doe,  deceased,  at  which  time  and  place  the  said  ad- 
ministrator will  make  application  to  have  the  aforesaid  estate 
decreed  insolvent. 

Dated.  Newark,  N.  J.,  William  Doe. 
, ,  19 ... ,  Administrator. 

The  above  notice  must  be  set  up  in  three  of  the  most  public 
places  of  the  county  where  such  decedent  resided  at  the  time 
of  his  death  for  two  months  before  the  date  fixed  for  present- 
ing the  report.     For  proof  of  posting  notice  see  Form   115. 


Form  182.     Report  of  Claims  and  Account  of  Estate. 

[See  Orphans'  Court  Act,  section  102,  page  S93.  supra,  and  ib.  section 
103,  page  593-] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate   of  |  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Report  of  Claims  and 
Account  of  Estate. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  report  of  William  Doe,  administrator  of  the  estate  of 
John  Doe,  deceased  of  the  several  claims  and  demands  ex- 
hibited against  said  estate  within  the  time  by  this  court  limited, 
showing  the  amount  due  thereon  at  this  time,  is  as  follows : 

Claim  of  William  Jones  for  merchandise 
furnished  to  decedent  during  his  life- 
time, book  account $1,000.00 

Claim  of  John  Smith  for  money  loaned 
decedent  during  his  lifetime,  evi- 
denced bv  note  of  decedent    ^oo.oo 


Insolvkxt  Estatks.  1 145 

ludgment  recovered  against  decedent  dur- 
ing   liis    lifetime    by    William    Jones 

on  which  there  is  now  due  the  sum  of.  i. 000.00 

Administration  expenses  estimated  at  .  .  .  J50.00     $2,750.00 

(Set  up  full  list  of  claims  presented,  stating  nature   of  the 
claim,  zvhether  by  judgment,  hook  account,  etc.) 

The  following  is  a  just  and  true  account  of  the  moneys, 
goods,  chattels,  rights  and  credits  of  John  Doe,  deceased,  which 
have  come  to  the  knowledge,  hands  or  possession  of  William 
Doe,  administrator  of  the  aforesaid  estate,  and  also  an  in- 
ventory and  valuation  of  the  real  estate  of  the  aforesaid 
decedent,  which  has  come  to  the  knowledge  of  the  said  adminis- 
trator : 

Amount  shown  by  inventor}-  on  lile  in 
the  office  of  the  Surrogate  of  the 
County     of     Essex     $1,000.00 

Loss  on  sale  of  goods  and  chattels  in- 
ventoried         200.00  800.00 


Interest  on  balance  on  deposit  in    

Savings  Institution,  accrued  since  date 

of  inventory   25.00 

Cash  on  deposit  in Savings  Institution  being 

assets    discovered    subsequent    to    filing    of    in- 
ventory         200.00 

Plot  of  unimproved  land  25x100  being  known   and 

designated  as  Nos ,    Street,  in  the 

City  of  Newark   500,00 


$1,525.00 
All  of  which  is  res])ectfully  suljinitted  this    day  of 


,  19.. 


Statu  of  New  Jersen'.  | 
County  of  Essex.       | 

William  Doe,  jjcing  duly  sworn  according  to  law,  upon  his 
oath,  de]joses  and  says  that  he  is  the  administrator  of  the 
estate   of   Jolm    Doc,   deceased,   and   that    the    foregoing   is   a 


1 146  Probate  Law  and  Practice. 

true  report  of  the  several  claims  and  demands  exhibited  against 
said  estate,  and  also  a  just  and  true  account  of  the  moneys, 
goods,  chattels,  rights  and  credits  of  the  said  John  Doe. 
deceased,  which  have  come  to  his  knowledge,  hands  or  posses- 
sion, and  also  an  inventory  of  the  real  estate  of  the  said  dece- 
dent, which  has  come  to  his  knowledge,  and  the  value  thereof 
as  near  as  may  be. 


Signed  subscribed  and  sworn 

to  this   day  of   , 

19. .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 
Notary  Public  of  N.  J. 


WiivLiAM  Doe. 


Form  183.     Exceptions  to  Account  of  Assets. 

[See  Orphans'  Court  Act,  section  104,  page  593.  supra,  and  Orphans" 
Court  Rule  20,  page  663,  supra.] 

Essex  County  Orphans'  Court. 

[n   the  matter  of   the   estate   of  )  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Exceptions  to  Account 
of  Assets. 

John  Smith,  one  of  the  creditors  of  the  estate  of  John  Doe. 
deceased,  hereby  excepts  to  the  account  of  the  assets  exhibited 
to  this  court  by  William  Doe,  administrator  of  the  aforesaid 
estate,  and  alleges  for  cause  of  exceptions  as  follows : 

I.  The  said  administrator  has  not  accounted  for  live  certain 

shares  in  the    Building  and   Loan   Association   which 

were  owned  by  the  said  John  Doe  at  the  time  of  his  death. 

IL  Li  the  inventory  filed  by  the  said  William  Doe,  adminis- 
trator as  aforesaid,  a  certain  retail  business  conducted  by  the 
said  John  Doe  in  his  lifetime  was  appraised  at  the  sum  of 
$500,  whereas  the  true  value  of  the  business  was  not  less 
than  $1,000. 

IIL  That  the  said  account  of  the  assets  of  said  estate  con- 
tained the  following  item  "loss  on  sale  of  goods  and  chattels 


Insolvent  Estates.  1147 

inventoried"  without  specifying  the  goods  and  chattels  upon 
the  sale  of  which  the  loss  accrued. 

Dated  Newark.  N.  T-,     ,  ^  ^ 

ToHN  Smith. 


k.  N.  T.,    ■) 
,  19...      I 


Form  184.     Exceptions  to  Claim  of  Creditor. 

[See  Orphans'  Court  Act.  section  104,  page  593,  supra,  and  Orphans' 
Court  Rule  20,  page  663.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of   the   estate  of  )  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Insolvency. 

Exceptions  to  Claims  of 
Creditors. 

William  Doe,  administrator  of  the  estate  of  John  Doe, 
deceased,  hereby  excepts  to  the  claim  exhibited  by  William 
Jones  against  the  aforesaid  estate,  and  alleges  for  cause  the 
following : 

I.  That  the  prices  charged  by  the  said  William  Jones  for  the 
said  merchandise  are  excessive. 

II.  That  a  certain  portion  of  said  merchandise,  to  wit 

and ,  was  never  furnished  to  the  said  John  Doe,  nor 

was  the  same  ever  received  by  .him. 

This  accountant  further  excepts  to  the  claim  of  John  Smith 
to  the  sum  of  $500  alleged  to  be  due  him  upon  a  promissory 
note  made  by  testator,  and  alleges  for  cause  for  exceptions, 

that  during  his   lifetime,   to   wit   on   the    day   of 

,  19.  .  .,  the  said  John  Doe  did  pay  to  the  said  John 

Smith,  the  sum  of  $100  on  account  of  the  principal  of  said 
note,  for  which  sum  the  said  John  Smith  has  not  given 
credit,  and  that  the  balance  due  upon  said  note  is  the  sum  of 
$400. 


Form  185.     Decree  on  Exceptions  to  Report  of  Claims  and  Ac- 
count of  Assets. 
[Sec  Orphans'  Court  Act,  section  104,  page  593.  supra.] 

Essex  County  Orphans'  Court. 


1 148  Probate  Law  and  Practice. 

In   the  matter   of   the   estate   of  |  On  Petition  for  Decree  of 
John  Doe,  deceased.  (  Insolvency. 

Decree  on  Exceptions. 

Exceptions  having  been  tiled  by  John  Smith,  a  creditor  of 
the  estate  of  the  said  John  Doe,  deceased,  to  the  account  of 
assets  of  the  estate  of  the  said  John  Doe,  deceased,  exhibited 
by  William  Doe,  administrator  of  said  estate,  and  the  court 
having  inquired  into  the  matter  and  having  heard  the  proofs 
and  allegations  in  the  premises,  and  being  of  the  opinion  that 
said  exceptions  are  not  well  founded  in  law ;  and  exceptions 
having  also  been  filed  by  William  Doe,  administrator  of  the 
estate  of  John  Doe,  deceased,  against  the  claim  of  William 
Jones,  exhibited  against  said  estate,  and  the  court  being  of  the 
opinion  that  this  exception  is  not  well-founded ;  and  an  excep- 
tion having  also  been  filed  against  the  claim  of  John  Smith 
exhibited  against  the  said  estate  for  the  sum  of  $500,  and 
it  appearing  that  said  claim  should  be  reduced  to  the  sum 
of  $400. 

It  is  thereupon,   on   this    day   of    19-. -, 

ordered  adjudged  and  decreed  that  the  aforesaid  exceptions 
filed  by  the  said  John  Smith  against  the  account  of  assets 
exhibited  by  said  William  Doe,  administrator  of  the  said  John 
Doe,  be,  and  the  same  are  hereby  overruled ;  and  that  the 
exceptions  filed  by  William  Doe,  administrator  as  aforesaid, 
against  the  claim  of  William  Jones  exhibited  against  said 
estate,  be,  and  the  same  are  hereby  overruled ;  and  that  the 
exception  filed  by  said  \\'illiam  Doe  administrator  as  aforesaid, 
against  the  claim  exhibited  by  John  Smith  be  and  the  same  is 
hereby  sustained,  and  that  the  amount  of  the  claim  of  the 
said  John  Smith  be  and  the  same  is  hereby  reduced  to  the 
sum  of  $400.  W.  P.  M., 

Judge. 


Form  186.     Decree  That  Estate  is   Insolvent  and   Ordering  Sale 
of  Lands. 

[See  Orphans'  Court  Act,  section  107.  page  596,  supra.] 

Essex  County  Orphans'  Court. 


Insolvent  Estates.  1149 


of  I  On  Petition 
j  Insolvency. 


In   the   matter  of   the   estate  of  )  On  Petition  for  Decree  of 
John  Doe.  deceased. 


Decree  of  Insolvency. 

It  appearing  that  WilHam  Doe,  administrator  of  the  estate 
of  John  Doe,  deceased,  has  made  report  to  this  court  of  the 
several  claims  and  demands  exhibited  against  said  estate, 
and  also  a  just  and  true  account  of  the  moneys,  goods,  chattels, 
rights  and  credits  of  the  said  decedent  which  have  come  to  his 
knowledge,  hands  or  possession,  and  also  an  inventory  of  the 
real  estate  of  said  decedent  which  has  come  to  his  knowledge 
and  the  value  thereof,  and  it  further  appearing  that  the  said 
William  Doe,  administrator  as  aforesaid,  has  given  due  notice 
to  the  creditors  of  the  aforesaid  estate  to  exhibit  their  claims, 
and  of  his  intention  to  make  such  report  and  to  apply  for  a 
decree  adjudging  the  said  estate  to  be  insolvent,  pursuant  to 
the  statute  in  such  case  made  and  provided. 

And  it  further  appearing  that  said  report  was  duly  filed  in 
the  Surrogate's  ofifice  of  the  County  of  Essex  twenty  days 
before  the  day  named  for  presenting  the  same,  and  that  no 
exceptions  have  been  filed  to  the  aforesaid  report  of  claims, 
account  or  inventory  (or  that  the  exceptions  filed  to  the  afore- 
said report  of  claims,  account  and  inventory  have  been  duly 

determined  by  said  court  by  its  order  made  the day  of 

JQ.  .  . ),   and   the   court   having  considered   the 

amount  of  the  personal  and  real  estate  and  the  value  thereof, 
and  it  appearing  that  the  real  and  personal  estate  is  insufficient 
to  pay  the  debts,  and  that  the  estate  is  likely  to  be  insolvent. 

It   is   thereupon,   on   this    day   of    ,    19..., 

ordered,  adjudged  and  decreed  that  the  aforesaid  estate  of 
John  Doe,  deceased,  is  likely  to  l)e  insolvent,  and  the  said  ad- 
ministrator is  hereby  directed  to  proceed  as  if  the  estate  were 
insolvent,  and  to  make  sale  of  the  whole  or  any  part  of  the 
real  estate  of  the  said  John  Doe,  deceased,  from  time  to  time, 
as  may  appear  expedient,  pursuant  to  the  statute  in  such 
case  marie  and  ])rovide(l. 

W.  P.  M., 
Judge. 

For  [)roceedings  on  sale  of  lands  see  Forms  151.  et  seq. 


1 150  Probate  Law  and  Practice. 

Form  187.    Petition  for  Sale  of  Land  in  County  Other  Than  That 
in  Which  Estate  was  Decreed  to  be  Insolvent. 

[See  Orphans"  Court  Act.  section  108,  page  596,  supra.] 

Hudson  County  Orphans'  Court. 

In  the  matter  of  the  insolvent  "|  On    Petition    for    Sale    of 
estate  of  John  Doe,  deceased,  j  Lands. 

Petition  for  Sale  of  Lands. 

To  the  Orphans'  Court  of  the  County  of  Hudson : 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : 

1.  He  is  the  administrator  of  the  estate  of  John  Doe,  late 
of  the  County  of  Essex,  deceased,  duly  appointed  by  the 
Surrogate  of  the  said  County  of  Essex. 

2.  On  the day  of ,  19.  .  .,  the  Orphans'  Court 

of  the  said  County  of  Essex  made  its  order  decreeing  that  the 
estate  of  the  said  John  Doe  was  likely  to  be  insolvent,  and 
ordering  your  petitioner  to  proceed  as  though  the  estate  were 
insolvent,  and  to  make  sale  of  the  whole  or  any  part  of  the 
real  estate  of  the  said  John  Doe,  deceased  ;  an  authenticated 
copy  of  which  order  is  hereunto  annexed  and  made  a  part 
hereof. 

3.  The   said   John    Doe    died    seized   of    certain    lands   and 

premises  in  the of in  the  County  of  Hudson 

and  State  of  New  Jersey,  to  wit:    (here  describe  the  lands). 

Your  petitioner  therefore  prays  that  this  court  may  order 
and  decree  the  sale  and  conveyance  by  your  petitioner  of  the 
aforesaid  lands  and  real  estate  of  the  said  John  Doe,  deceased, 
situate  in  the  County  of  Hudson. 

Dated  Newark,  N.  J.,  „,  ^ 

•^  William  Doe. 
' i9--- 


State  oe  New  Jersey, 
County  of  Essex. 


■■) 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 


Insolvent  Estates.  iisi 


a 


William   Doe. 


Subscribed  and  s\\orn  to  this 

day  of  

19.  .  .,  at  Newark.  N.  J-,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J- 

A  certified  copy  of  the  decree  of  insolvency,  directing  the 
sale  of  land,  should  be  annexed. 


Form   188.     Order  for  Sale  of  Land  in  County   Other  than  that 
in  which  Estate  was  Decreed  to  be  Insolvent. 

[See  Orphans"  Court  Act.  section  108.  page  596.  supra. 1 

Hudson  County  Orphans'  Court. 


In   the   matter   of   the   insolvent  |  On    Petition    for    Sale    of 
estate  of  lohn  Doe,  deceased,  f  Lands. 


I  On    P 
j  Lands 

Order  for  Sale  of  Lands. 


An  authenticated  copy  of  an  order  and  decree  made  by  the 
Orphans'  Court  of  the  County  of  Essex,  being  produced  to 
this  court  whereby  it  appears  that  the  real  and  personal  estate 
of  John  Doe,  late  of  the  said  County  of  Essex,  is  insufficient 
to  pay  his  debts  and  that  the  said  estate  is  likely  to  be  insol- 
vent ;  and  it  further  appearing  that  William  Doe,  administra- 
tor of  the  estate  of  the  said  John  Doe,  deceased,  was  therein 
and  thereby  ordered  and  directed  to  proceed  as  if  the  said  es- 
tate were  insolvent  and  to  make  sale  of  the  whole  or  any  part  of 
the  real  estate  of  the  said  John  Doe,  deceased,  from  time  to 
time  as  might  to  him  appear  expedient. 

And  it  further  appearing  that  the  said  John  Doe  died  seized 
of  lands  or  real  estate  situate  within  the  County  of  Hudson 
to  wit:  (Describe  the  lands). 

It  is  thereupon,  on  this day  of ,  19. .  . ,  or- 
dered and  decreed  that  tlie  said  William  Doe,  administrator  as 
aforesaid,  make  sale  and  conveyance  of  the  said  lands  or  real 
estate  of  the  said  John  Doe,  deceased,  hereinabove  described, 
according  to  the  statute  in  such  case  made  ;ui(l  provided,  and 
74 


1 1 52  Probate  Law  and  Practice. 

that  said  William  Doe,  administrator  as  aforesaid,  report  said 
sale  to  this  court  for  confirmation. 

G.  G.  T., 
Judge. 

For  form  of  report  of  sale,  see  Forms  157  and  161  ;  for 
form  of  decree  confirming  sak,  see  Forms  159  and  162;  for 
form  of  administrator's  deed,  see  Forms  160  and  163. 


Form  189.     Petition  of  Barred  Creditor  for  Extension  of  Time  to 
Present  Claim. 

[See  Orphans'  Court  Act,  secton  112,  page  588,  supra.] 

Essex  County  Orphans'  Court. 


f1  On 
"^  Icre 


,     ,  r  I   —-     Petition     of     Barred 

In  the  matter  of  the  estate  of^,.^        ,       -^  ^      .  . 

^  ,      ^        ,  ,  y  Creditor   for  Extension  of 

Tohn  Doe,  deceased.  (  ^.       ^    -^  ^  r^^  ■ 

J    June  to  Present  Claim. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  John  Jones,  of  the   of   ,  in 

the  County  of    and   State  of    ,   respectfully 

shows  that : 

1.  John  Doe,  late  of  the  County  of  Essex,  deceased,  died  on 

the day  of ,  19.  .  . ,  and  on  the day  of 

,    19...,    letters    of    administration    upon    his    estate 

were  duly  issued  to  William  Doe,  who  duly  qualified  as  such 
administrator. 

2.  On  the day  of ,  19.  .  . ,  the  Surrogate  of 

the  Coupty  of  Essex,  upon  the  application  of  the  said  William 
Doe,  made  an  order  requiring  all  creditors  of  the  said  John 
Doe,  deceased,  to  present  their  claims  to  the  said  adminis- 
trator within  the  time  limited  in  said  order  and  on  the 

day  of   ,  19.  . .,  the  said  Surrogate  made  his  decree 

barring  all  creditors  whose  claims  had  not  been  presented  to 
the  said  administrator  within  the  time  limited  in  his  aforesaid 
order. 

3.  On  the  ....  day  of ,  19.  .  .,  this  court  by  its  decree, 

declared  the  estate  of  the  said  John  Doe,  deceased,  to  be 
insolvent. 


IxsoLVEXT  Estates.  1153 

4.  Your  petitioner  has  a  claim  ainoiuitiiig  to  One  thousand 
dollars  ($1,000.)  against  the  estate  of  the  said  John  Doe.  de- 
ceased, for  moneys  loaned  hy  your  petitioner  to  the  said  John 
Doe,  deceased,  during  his  lifetime,  which  sum  has  never  been 

repaid  to  him  and  on  the day  of   19. . . ,  he 

went  to  the  office  of  his  attorney,  who  prepared  a  claim  against 
the  estate  of  the  said  John  Doe,  deceased,  which  your  petitioner 
duly  signed  and  verified  by  his  affidavit,  and  his  said  attorney 
promised  to  file  the  said  claim  with  the  said  administrator  of 
the  estate  of  the  aforesaid  John  Doe,  deceased,  but  through 
inadvertence  failed  and  neglected  so  to  do,  by  reason  whereof 
your  petitioner's  said  claim  against  the  said  estate  was  not 
presented  within  the  time  limited  in  the  aforesaid  order  of  the 
Surrogate  and  his  claim  has  been  barred  by  said  decree. 

5.  Your  petitioner  further  shows  that  distribution  of  the 
estate  of  the  said  John  Doe,  deceased,  has  not  as  yet  been  made. 

Your  petitioner  therefore  prays  that  this  court  may  extend 
the  time  within  which  claims  may  be  presented  by  creditors  of 
the  estate  of  the  said  John  Doe,  deceased,  to  the  end  that 
he  may  duly  present  his  aforesaid  claim  and  participate  in 
the  distribution  of  the  said  estate. 

Dated  Newark,  N.  J.,  .  John  Jones. 
,   ,  19-  •  • 

State  oe  New  Jersey,  ") 
County  of  Essex.      j 

John  Jones,  of  full  age,  being  duly  sworn  according  to  law 
upon  his  oath,  deposes  and  says  that  he  is  the  petitioner  in  the 
foregoing  ])etition  named  and  that  the  matters  and  things 
therein  contained  are  true  to  tlie  best  of  his  knowledge  and 
belief. 

Subscribed  and  sworn  to  this"^ 

day  of ,  I  J  . 

T.T         ,     T.T    T    1    r        >  John    Jones. 

19.  .  .,  at  Newark,  N.  J.,  before  [  "^ 

me,  J 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  court  has  ])ower  to  extend  the  time  in   which   claims 

may  be  jjresentcd  until  after  the  final  distribution  of  the  estate 


1 1 54  PROBATr;  Law  and  Practice. 

of  the  intestate,  and  a  petition  of  this  character  may  be  filed 
after  a  decree  for  partial  distribution,  if  there  be  sufficient 
assets  in  the  hands  of  the  administrator  to  pay  the  same. 


Form  190.     Rule  to  Show  Cause  on  Application  of  Creditor  for 
Extension  of  Time  to  Present  Claim. 

[See  Orphans'  Court  Act,  section  112  page  588,  supra.] 

Essex  County  Orphans'  Court. 

T     ,1  ^j.         r  .1  .  .       r^  O"     Petition     of     Barred 

in   the   matter  of  the   estate   of  ^      ,.         r       -r^ 

T  ,      T-^       J  J  >- Creditor   tor  Extension  of 

John  Doe,  deceased-  [  ^. 

J    1  nne  to  Present  Clami. 

Rule  to  Slio2v  Cause. 

Upon  reading  and  filing  the  petition  of  John  Jones,  filed 
herein,  whereby  it  appears  that  he  is  a  creditor  of  the  estate  of 
John  Doe,  deceased,  and  through  the  inadvertance  of  his  at- 
torney his  claim  was  not  presented  to  the  administrator  of 
said  estate  and  that  the  same  has  been  barred  by  a  decree  of 
the  Surrogate  of  the  County  of  Essex  entered  in  said  matter 
and  it  further  appearing  that  by  a  decree  of  this  court  the 
estate  of  the  said  John  Doe,  deceased,  was  declared  to  be 
insolvent  and  no  reason  appearing  or  being  alleged  to  the 
■contrary. 

It  is  thereupon  on  this  day  of  ,  one  thou- 
sand nine  hundred  and  ,  ordered  that  the  said  William 

Doe,  administrator  of  the  estate  of  John  Doe.  deceased,  show 

cause  before  this  court  on  the   day  of   ,  19.  .  .. 

at  10  a.  m.,  in  the  forenoon,  at  the  Court  House,  in  the  City 
of  Newark,  why  the  time  within  which  claims  against  the 
estate  of  the  said  John  Doe,  deceased,  may  be  presented  by 
the  creditors  of  the  estate  of  the  said  John  Doe,  deceased, 
should  not  be  extended  to  enable  the  said  John  Jones  to  pre- 
sent his  aforesaid  claim  against  said  estate. 

And  it  is  further  ordered  that  true,  but  uncertified,  copies  of 
this  order  and  the  petition  filed  herein  be  served  upon  the  said 
William  Doe,  administrator  as  aforesaid,  personally  or  by 
leaving  the  same  at  his  residence  or  usual  place  of  abode  with  a 

person  over  the  age  of  fourteen  years  within days  from 

the  date  hereof.  W.  P.  M., 

Judge. 


IxsoLVEXT  Estates.  ii 


OD 


Form   191.     Order   Extending   Time   for   Presentation  of   Claims 
Against  Estate. 

[See  Orphans'  C(nirt  Act,  section  112  page  588,  supra.] 

Esse;x  County  Orphans'  Court. 

T      .,  ^,  .-  ^,  ^  ^        rl   On     Petition     of     Barred 

In   the  matter   ot   the   estate   of      „      ,.         .       .^ 

T  ,      T-,       J  J  > Creditor   tor  Extension  of 

John  Uoe,  deceased.  ,,,.  -^  ^,  . 

J    1  ime  to  Present  Claim. 

Order  Extending  Time  for 
Presentation  of  Claim. 

It  appearing  from  the  petition  of  John  Jones,  tiled  herein, 
that  he  is  a  creditor  of  the  estate  of  John  Doe,  deceased,  and 
that  his  said  claim  against  the  estate  has  heen  barred  by  a 
decree  of  the  Surrogate  of  the  County  of  Essex  by  reason  of 
not  having  been  presented  to  the  administrator  of  the  estate 
of  the  said  John  Doe,  deceased,  within  the  time  limited  by 
the  aforesaid  order  of  the  Surrogate. 

And  it  further  appearing  that  the  estate  of  the  said  John 
Doe,  deceased,  has  been  decreed  by  this  court  to  be  insolvent 
and  that  the  failure  of  the  said  John  Jones  to  duly  present  his 
claim  to  the  administrator  of  the  said  estate  was  by  reason  of 
the  inadvertence  and  neglect  of  his  attorney,  and  it  further 
appearing  that  the  rule  to  show  cause  made  herein  lias  been 
duly  served  upon  William  Doe,  administrator  of  the  estate  of 
the  said  John  Doe,  deceased,  and  no  reason  being  alleged  or 
appearing  to  the  contrary. 

It  is  on  this day  of ,  one  thousand  nine  hun- 
dred and ,  ORDERED  that  the  time  within  which  claims 

against  the  estate  of  the  said  John  Doe,  deceased,  may  be 
presented  to  William  Doe,  administrator  of  the  estate  of  the 
said  John  Doe,  deceased,  by  creditors  of  the  said  John  Doe, 

deceased,  be  and  the  same  is  hereby  extended  to  the   

day  of ,  19.  . .. 

W.  P.  M., 
Judge. 


1 1 56  Probatk  Law  and  Practici;. 

Form  192.     Decree  Allowing  Account  and  Distributing  Proceeds 
of  Estate  Among  Creditors. 

[See  Orphans'  Court  Act,  secton  no,  page  598,  supra;  ih.,  section 
122,  page  64-4,  supra  and  ib..  section  125,  page  647.  supra  and  Orphans' 
Court  Rules  17,  18  and  19,  pages  642.  645  and  643.] 

Essex  Countv  Orphans'  Court, 
Term  A.  D.,  19.  .  . 


In  the   matter  of   the  estate   of  .  ,^ 

_  ,      -r^        ,  ,  V  On  accountmgf. 

)ohn  Doe,  deceased. 


I  On 


Decree  Alloiviiig  Account 
and  Distributing  Estate. 

The  Surrogate  having  audited  and  stated  the  final  account  of 
Wilham  Doe,  administrator  of  the  estate  of  John  Doe,  deceased, 
and  placed  the  same  on  the  files  of  his  office  twenty  days  previ- 
ous to  the day  of ,  19.  .  . ,  and  having  on  the 

day  last  aforesaid  reported  the  same  to  this  court  for  allowance 
and  settlement,  and  it  having  been  proved  to  the  satisfaction  of 
this  court  that  notice  of  the  intention  of  the  said  administrator 

to  settle  his  said  account  on  the day  of ,  19.  . ., 

has  been  duly  given  according  to  law,  and  the  court  having 
examine^  the  said  account  and  the  vouchers  and  receipts  for 
payments  and  disbursements  claimed  therein,  and  having  found 
the  same  to  be  correct  in  all  particulars. 

It  is,  on  this day  of ,  A.  D.,  one  thousand 

nine  hundred  and  .......  ordered,  adjudged  and  decreed  that 

the  said  account  be  in  all  things  allowed  as  reported,  and  that 
there  is  a  balance  remaining  in  the  hands  of  said  accountant 

amounting  to  the  sum  of    dollars,  to  be  disposed  of 

according  to  law  ;  and  it  is  further  ordered  that  from  the  afore- 
said balance  the  said  accountant  be  allowed  the  sum  of 

dollars  as  and  for  his  commissions,  and  that  a  counsel  fee  of 
dollars  be  allowed  to ,  proctor  for  said  account- 
ant. 

And  it  further  appearing  by  the  report  of  the  said  adminis- 
trator made  on  the   day  of    19.  •  • ,  that  the 

claims  duly  exhibited  against  the  said  estate  amount  to  the  sum 
of dollars,  to  which  report  no  exceptions  were  made. 


Testimony  Dk  Cexf.  Essk.  •  ii 


.->/ 


It  is  further  ordered,  adjudged  aud  decreed  that  the  balance 
of dollars  remaining  in  the  hands  of  the  said  adminis- 
trator, after  deducing  the  aforesaid  allowances  of  commissions 
and  counsel  fees  from  the  balance  remaining  in  his  hands  as 
aforesaid,  be  distributed  and  paid  by  the  said  administrator  to 

the  said  creditors  in  the  proportion  of cents  on  each 

dollar   due   to   them   respectively   according   to   the   aforesaid 
report. 

W.  P.  M., 
Judge. 

The  account  of  the  executor  or  administrator  upon  which 
this  decree  is  based  must  be  noticed  for  settlement,  audited  and 
stated  by  the  Surrogate,  and  reported  by  him  for  allowance  bv 
the  court,  in  the  same  manner  as  all  other  accounts. 


TESTIMONY  DE  BENE  ESSE. 

I.     BY   COMMISSION   TO   TAKE   DEPOSITION   OF   WIT- 
NESS TO  WILL. 

Form  193.     Petition  for  Commission  to  Take  Deposition  of  Non- 
Resident  Witnesses  to  Will. 

[See  Orphans'  Court  Act,  section  16,  page  203.  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of  1 

the  alleged  will  of  John  Doe,  >On    Petition    for    Probate, 
deceased.  J 

Petition. 

To  F.  G.  S.,  Jr.,  'Surrogate  of  the  County  of  Essex: 

The  petition  of  A.  B.,  of  the of ,  in  the  County 

of and  State  of ,  respectfully  shows  that : 

1.  Your  petitioner  is  the  executor  named  in  the  last  will  and 

testament  of  John  Doe,  late  of ,  who  died  on  the 

day  of ,  19.  .  .  ; 

2.  One  of   the   subscribing  witnesses  to   said   will,   to   wit: 
is  dead,  and  the  other,  to  wit : resides 


1 158  •        Probate  Law  and  Practice. 

out  of  this  state,  to  wit :   in  the of  .  .  .  .,  in  the  State  of 

,  and  the  testimony  of  the  said is  material  in 

support  of  the  proof  of  said  will,  which  has  been  duly  offered 
for  probate. 

Your  petitioner  therefore  prays  that  a  commission  annexed 

to  said  will  issue  out  of  this  court  directed  to (state 

office  held  by  couunissioner)  authorizing  and  empowering 
him  to  take  the  deposition  of  the  said ,  one  of  the  sub- 
scribing witnesses  to  the  aforesaid  will. 

Newark,  N.  J.,  ^   -g 
, ,  I9--- 


State  of  New  Jersey, 
County  of  Essex. 


3EY,  I 


A.  B.,  being  duly  svv'orn  according  to  law  upon  his  oath, 
deposes  and  says  that  h.e  is  the  petitioner  in  the  foregoing  pe- 
tition named,  and  that  the  matters  and  things  contained  therein 
are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this"^ 

^^yo^ '  L  A.  B. 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  petition  must  pray  that  the  commission  be  directed  to 
the  judge  of  some  court  of  law,  mayor,  recorder  or  other  chief 
magistrate  of  the  city  or  town  where  such  witness  may  be 
found,  or  to  a  consul  or  vice-consul  of  the  United  States 
stationed  in  a  foreign  state  or  kingdom. 


Form  194.     Order  for  Commission  to  Take  Depositions  of  Non- 
Resident  Witnesses  to  a  Will. 

[See  Orphans'  Court  Act,  section  16,  page  203,  supra.] 

Essex  County  Surrogate's  Court. 
In  the  matter  of  the  probate  of  1 

the  alleged  will  of  John  Doe,  >On    Petition    for    Probate, 
deceased.  J 

Order  for  Commission. 


Testimony  De  Bene  Esse.  1159 

On  reading  and  tiling  the  petition  of  A.  B.,  the  petitioner 
herein,  whereby  it  appears  that  one  of  the  subscribing  wit- 
nesses to  the  last  will  and  testament  of  John  Doe,  late  of  the 

County  of  Essex  deceased,  to  wit :   is  dead  and  that 

the    other,    to    wit :    resides    without    this    state    in 

the of in  the  State  of   ,  and  that 

the  testimony  of  the  said   is  material  in  support  of 

the  proof  of  the  said  will. 

It  is  thereupon,  on  this   day  of    19.  .  . , 

ORDERED  that  a  commission,  annexed  to  the  said  will,  issue  out 

of  and  under  the  seal  of  this  court  directed  to {state 

office  held  by  commissioner)  authorizing  and  empowering  liim 

to  take  the  deposition  of  the  said ;  and  it  is  further 

ordered  that  the  said  deposition  shall  be  annexed  to  the  said 
commission  and  certified  in  the  same  manner  in  which  sucli 

acts  are  usually  authenticated  by  the  said and  returned 

together  with  the  said  will  and  commission  into  this  court. 

F.  G.  S.,  Jr., 
Surrogate. 


Form     195.     Commission    to    Take    Deposition    of    Non-Resident 
Witness  to  a  Will. 

[See  Orphans'  Court  Act,  section  16,  page  203,  supra.] 

State  of  New  Jersey, 


'1 


County  of  Essex.       '' 

The  State  of  New  Jersey  to   (state 

official  character  of  conunissioiter  )  (ireeting: 
(l.  s.)     Whereas,  A.  B.,  the  executor  named  in  the  will  of 

John  Doe,  deceased,  hereunto  annexed,  has  pre- 
sented the  same  to  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of 
Essex,  for  probate,  and  it  appears  that ,  one  of  the  sub- 
scribing witnesses  to  the  same,  resides  out  of  this  state  and  in 

the  State  of   You  are  therefore  hereby  authorized 

and  empowered  to  take  the  deposition  of  the  said   to 

said  will,  and  to  certify  the  same  in  the  manner  in  which  such 
acts  are  usually  authenticated  by  you. 


ii6o  Probate  Law  axd  Practice. 

Witness,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex 

aforesaid  and  the  seal  of  his  office,  this  ....  day  of , 

19.  . .  F.  G.  S.,  Jr., 

Surrogate. 

The  original  will  and  a  copy  of  the  usual  oath  taken  by 
subscribing  witnesses  in  proving  a  will  (see  Form  2,  supra), 
referring  to  the  said  will  by  date,  etc.,  should  be  annexed  to 
the  commission.  The  subscribing  witness  must  subscribe  and 
take  such  oath  before  the  commissioner  who  signs  the  usual 
jurat  thereto,  and  who  must  in  addition  sign  the  following 
certificate. 

I,    ,    (name  and  title  of  office  Jield  by  couimis- 

sioiier),  do  hereby  certify  in  the  manner  in  which  such  acts 

are  usually  authenticated  by  me,  that ,  the  person  in 

the  within  commission  named,  personally  appeared  before  me 

at ,  in  the  County  of and  State  of , 

this   day  of   ,  19. .  .,  and  was  duly  sworn  by 

me  to  the  truth  of  the  above  deposition  by  him  signed. 

Witness   my   hand   and   seal   of   office   this    day   of 

,  19.  .  . ,  at aforesaid. 

(Signature). 


Form    196.      Petition    for    Commission    to    Take    Deposition    of 
Witness  to  Foreign  Will. 

[See  Orphans'  Court  Act,  section  22.  page  211,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of   the   estate   of  |  On  Petition  for  Probate  of 
John  Doe,  deceased.  j  Will  of  Non-Resident. 

Petition. 


To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  John  Jones  of  the of ,  in 

the  County  of and  State  of respectfully 

shows  that : 

I.  John  Doe,  late  of  the  City  of  Chicago.  County  of  Cook  and 

State  of  Illinois,  departed  this  life  on  the day  of , 

19. .,  leaving  a  last  will  and  testament  which  was  duly  admitted 
to  probate  by  the  Probate  Court  of  Cook  County,  in  the  State 


Tkstimoxv  Dk  Bkxk  Essk.  ii6i 

of  Illinois.  An  exemplihed  copy  of  the  record  of  probate  of 
said  will  has  been  duly  tiled  in  the  office  of  the  Surrogate  of  the 
County  of  Essex,  but  it  does  not  appear  from  such  record  that 
the  said  will  was  executed  in  accordance  with  the  laws  of  the 
state  of  Xew  Jersey. 

2.  On  the day  of 19.  ...  a  petition  for  the 

probate  of  said  will  in  the  State  of  New  Jersey  was  duly  pre- 
sented to  this   court  whereby  it  appears  that    and 

tlie  subscribing  witnesses  to  said  will,  reside  in  the 

City  of  Chicago,  County  of  Cook  and  State  of  Illinois. 

Your  petitioner  therefore  prays  that  a  commission  issue  out 
of  and  under  the  seal  of  this  court  directed  to  the  Honorable 

,.  .,  {title  of  office  held  by  commissioner),  authorizing 

and  empowering  him  to  take  the  depositions  of  the  said 

and ,  the  subscribing  witnesses  to  the  aforesaid  will. 

Dated  Newark,  N.  J.,  '  John  Jones. 

, ,  i9--- 

State  of  New  Jersey 


RSEV,  ) 
■X.       ] 


County  of  Esse::         '' 

John  Jones,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 
tition named,  and  that  the  matters  and  things  therein  contained 
are  true  to  the  best  of  his  knowledsre  and  belief. 


Subscribed  and  sworn  to  this" 

day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


>  John  Jones. 


Form  197.     Order  for  Commission  to  Take  Deposition  of  Witness 
to  Foreign  Will. 
[See  Orphans'  Cinirt  Act,  section  2i,  paj;e  211,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  estate  of  |  On  Petition  for  Probate  of 
John  Doe,  deceased.  j  Will  of  Non -Resident. 

Order  for  Commission. 


ii62  Probate  Law  and  Practice. 

It  appearing  by  the  petition  filed  herein  that  John  Doe,  late  of 
the  City  of  Chicago,  County  of  Cook  and  State  of  Illinois,  de- 
parted this  life  on  the day  of ,  19.  .  .,  leaving  a 

last  will  and  testament  which  was  duly  admitted  to  probate  by 
the  Probate  Court  of  Cook  County,  in  the  State  of  Illinois ; 
that  an  exemplified  copy  of  the  record  of  probate  of  said  will 
has  been  duly  filed  in  the  office  of  the  Surrogate  of  the  County 
of  Essex ;  and  that  it  does  not  appear  from  such  record  that 
the  will  was  executed  in  accordance  with  the  laws*of  the  State 

of  New  Jersey;    and  it  further  appearing  that   and 

,  the  subscribing  witnesses  to  said  will,  reside  in  the 

City  of  Chicago,  in  the  County  of  Cook  and  State  of  Illinois. 

It  is  thereupon,  on  this day  of ,  one  thou- 
sand nine  hundred  and ,  ordered  that  a  commission 

annexed  to  said  will  issue  out  of  and  under  the  seal  of  this  court 

directed  to  the  'Honorable    {title  of  office  held  by 

commissioner),  authorizing  and  empowering  him  to  take  the 
depositions  of  the  said  and  ,  the  subscrib- 
ing witnesses  to  the  aforesaid  will. 

F.  G.  S.,  Jr., 
Surrogate. 


Form  198.    Commission  to  Take  Deposition  of  Witness  to  Foreign 
Will. 

[See  Orphans'  Court  Act,  section  23,  page  211,  supra.] 


State  oe  New  Jersey, 
County  oe  Essex. 


■I 


The  State  of  New  Jersey  to  the  Honorable , 

(l.  s.)  (title  of  office  held  by  commissioner),  Greeting: 
Whereas,  an  exemplified  copy  of  the  record  of  probate  of  the 
last  will  and  testament  of  John  Doe,  late  of  the  City  of  Chicago, 
County  of  Cook  and  State  of  Illinois,  has  been  filed  in  this 
court,  from  which  record  it  does  not  appear  that  said  will  was 
executed  in  the  manner  required  by  the  laws  of  this  state  to 
transfer  or  afifect  the  title  to  real  estate  situate  in  this  state  ;  and 
it  further  appearing  that and ,  the  subscrib- 
ing witnesses  to  said  will,  reside  out  of  this  state,  and  in  the 
State  of  Illinois. 


Testimony  De  Bene  Esse.  1163 

You  are  therefore  hereby  authorized  and  empowered  to  take 
the  depositions  of  the  said and ,  the  subscrib- 
ing witnesses  to  said  will,  and  to  certify  the  same  in  the  manner 
in  which  such  acts  are  usually  authenticated  by  you. 

Witness,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex 
aforesaid  and  the  seal  of  his  office  this day  of , 

19 

F.  G.  S.,  Jr., 

Surrogate. 


Form  199.     Deposition  of  Witness  to  Foreign  Will. 
[See  Orphans"  Court  Act,  section  23,  page  211.  supra.l 

State  of   Illinc 


[NOIS,  I 
[^OOK.  j 


County    of    Cook. 

,  of  full  age.  being  by  me  duly  sworn  according 

to  law  upon  his  oath,  deposes  and  says  that  he  is  a  resident  of 
the  County  of  Cook  and  State  of  Illinois ;  that  he  is  one  of  the 
witnesses  to  the  last  will  and  testament  of  John  Doe.  late  of  the 
City  of  Chicago,  in  the  County  of  Cook  and  State  of  Illinois, 
deceased ;  that  he  has  examined  the  original  writing  duly 
admitted  to  probate  by  the  Probate  Court  of  Cook  County, 
Illinois,  as  the  last  will  and  testament  of  the  said  John  Doe, 
deceased,  remaining  on  file  and  of  record  with  the  clerk  of 
said  court,  and  that  the  copy  of  said  will  annexed  hereto  is  a 
true  copy  of  the  will  of  the  said  John  Doe,  which  he  witnessed. 

Deponent  further  says  that  he  saw  the  said  John  Doe  sign 
and  seal  said  writing  and  heard  him  publish,  pronounce  and 
declare  the  same  as  and  for  his  last  will  and  testament ;  that 
at  the  time  of  the  doing  thereof,  the  said  testator  was  of  sound 
and  disposing  mind,  memory  and  understanding,  as  far  as  this 

deponent  knows  and  as  he  verily  believes ;     that    

the  other  subscribing  witness  to  said  will,  was  present  at  the 
same  time  with  this  deponent  when  the  said  will  was  signed 
by  the  said  testator  and  by  him  published  and  declared  as  and 
for  his  last  will  and  testament  as  aforesaid ;  and  that  the  said 
and  deponent  subscribed  their  names  to  said  will  as 


1 164  Probate  Law  and  Practice. 

witnesses  in  the  presence  of  said  testator  and  of  each  other, 
at  the  request  of  said  testator. 


Subscribed  and  sworn  to  this^ 

day  of , 

19. . .,  at ,  before 

me, 


> 


II.     BY  AUTHORIZATION  OF  MASTER,  ETC.,  TO  TAKE 
DEPOSITION. 

Form  200.     Petition  for  Order  Deputizing  Master,  Etc.,  to  Take 
Deposition  o£  Non-Resident  Witness. 

[See  P.  L.  1913-  page  102,  page  203,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  ^On    Petition    for    Probate, 
deceased.  J 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  A.  B.,  of  the   of   ,  in  the 

County  of and  State  of ,  respectfully  shows 

that : 

1.  Your  petitioner  is  the  executor  named  in  the  last  will 
and  testament  of  John  Doe,  late  of  the  City  of  Newark,  in 
the  County  of  Essex  and  State  of  New  Jersey,  who  died  on  the 
day  of ,  19.  .  . 

2.  One  of  the   subscribing  witnesses  to   said   will,   to   wit : 

is  dead,  and  the  other,  to  wit :    resides 

out  of  this  state,  to  wit :    in  the   of in  the 

State  of ,  and  the  testimony  of  the  said is 

material  in  support  of  the  proof  of  said  will,  which  has  been 
duly  offered  for  probate. 

Your  petitioner  therefore  prays  that ,  an  attorney 

(or  cou7isellor) ,  at  law,  admitted  to  practice  in  this  state  (or 
a  master  in  chancery  of  Nciv  Jersey,  or  notary  public,  or 
commissioner  of  deeds),  be  specially  deputized  and  authorized 


Tkstimoxy  Dk  Bf.xk  Esse.  1165 

t(j  take  the  deposition  of   the  witness  to  the  afore- 
said win. 

Dated  Newark,  X.   T.,  ^ 
■^                                                        A.  B. 
,   ,   i9--- 

State  of  New  Jersey,  | 
County  of  Essex.      j 

A.  B.,  being  duly  sworn  according  to  law  u{)on  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this~^ 

day  of ,  I 

19.  .  .,  at  Newark,  N.  J.,  before 
me. 

J.  C.  F., 

Notary  Public  of  N.  J 


A.  B. 


Form  201.     Order  Deputizing  Master,   Etc.,  to  Take   Deposition 
of  Non-Resident  Witness. 
[See  P.  L.  1913,  page  102,  page  203,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of^ 

the  alleged  will  of  John  Doe,  vOn    Petition    for    Probate, 
deceased.  J 

Order  Deputizing  Attorney  at 
Law  to  Take  Deposition. 

On  reading  and  filing  the  petition  of  A.  B.,  the  petitioner 
herein,  whereby  it  appears  that  one  of  the  subscribing  witnesses 

to  the  last  will  of  John  Doe,  deceased,  to  wit:    is  dead 

and  that  the  other,  to  wit :   resides  in  the   

of ,  in  the  State  of ,  and  that  testimony 

of  the  said is  material  in  support  of  the  proof  of 

the  said  will,  and  praying  that   ,  an  attorney   (or 

counsellor)   at  law,  admitted  to  jjractice  in   this  state    (or  a 
master   in   chancery   of  New  Jersey,   or  a    notary   public   or 


1 166  Probate  Law  and  Practice. 

conunissioner  of  deeds)  be  specially  deputized  and  authorized 

to  take  the  deposition  of the  witness  to  the  aforesaid 

will. 

It  is  thereupon,   on  this    day  of    ,    19..., 

ORDERED  that  the  said ,  an  attorney  at  law,  admitted  to 

practice  in  this  state    {or  otherivise  as  the  case  may  be)   be 
and  he  is  hereby  deputized  and  authorized  to  take  the  deposition 

of ,  the  witness  to  the  last  will  and  testament  of , 

deceased,  as  aforesaid. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  deposition  of  witness  see  Form  2. 


III.        BY      APPOINTMENT      OF      COMMISSIONER      TO 
EXAMINE  WITNESS  UPON  INTERROGATORIES. 

Form   202.      Petition   for    Commission   to    Examine   Witness    De 
Bene  Esse. 

[See  P.  L.  ,1915.  page  141,  page  5S,  supra  and  2  Comp.   Stat.,  page 
2231,  section  2i^,  et  seq.] 

Essex  County  Surrogate's  Court. 

In  the  matter  oi  the  probate  of^ 

the    last    will    of    John    Doe,  vOn    Petition    for    Probate, 
deceased.  J 

Petition  for  Commission  to 
Examine  Witness  De 
Bene  Esse. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of 

in  the  County  of and  State  of  ,  respect- 
fully shows  that : 

I.  John  Doe,  late  of  the  County  of  Essex,  deceased,  departed 

this  life  on  the   day  of    ,   19.  .  .,  having  first 

executed  a  paper  writing  purporting  to  be  his  last  will  and 
testament,  which  has  been  duly  offered  for  probate  in  this 
matter. 


Testimony  De  Bene  Esse.  1167 

2.  William  Jones,  one  of  the  attesting  witnesses  to  said  will. 

is  a  material  witness  in  this  matter,  and  resides  in  the 

of ,  in  the  County  of and  State  of  

and  your  petitioner  is  unable  to  proceed  in  this  matter  without 
the  benefit  of  his  testimony. 

Your  petitioner  therefore  prays  that  a  commission  issue  out 

of  and  under  the  seal  of  this  court,  directed  to ,  of  the 

of ,  in  the  County  of and  State  of 

,   authorizing  him   to   examine   de   bene   esse   the   said 

witness  above  named. 

Dated  Newark,  N.  J.,  „,  ^^ 

•^  William  Doe;. 

..-,  ,  i9--- 

State  of  New  Jersey 


1 


County  of  Essex. 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  William  Jones  is  a  material  wit- 
ness in  the  matter  of  the  probate  of  the  last  will  and  testa- 
ment of  John  Doe,  deceased,  and  resides  in  the   of 

,  in  the  County  of    and  State  of , 

and  that  deponent  is  unable  to  proceed  with  the  above  entitled 
matter  without  the  benefit  of  his  testimony. 

Subscribed  and  sworn  to  this"^ 

M^^'^fM--/ •;•;••>  William  Doe. 

19.  .  ..  at  Newark,  N.  J.,  before 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

A  commission  to  take  testimony  de  bene  esse  will  issue  either 
out  of  the  Surrogate's  Court  or  Orphans'  Court.  If  applica- 
tion for  such  commission  is  made  to  the  Orphans'  Court,  it 
must  be  on  eight  days  notice.  No  notice,  however,  is  required 
for  such  an  application  in  an  ex  parte  proceeding  before  the 
Surrogate.  Such  a  commission  will  issue  in  any  proceeding 
pending  in  cither  the  Orphans'  or  Surrogate's  Court. 


75 


ii68  Probate  Law  axd  Practice. 

Form  203.     Order  for  Commission  to  Examine  Witness  De  Bene 
Esse. 

[See  P.  L.  1915,  page  141,  page  58,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  probate  of  ^ 

the    last    will    of    John    Doe,  >-On    Petition    for    Probate, 
deceased.  J 

Order  for  Commission  to 
Examine  Witness  De 
Bene  Esse. 

It  appearing  by  the  petition  of  William  Doe  filed  herein 
that  William  Jones  is  one  of  the  attesting  witnesses  of  the 
last  will  and  testament  of  John  Doe,  late  of  the  county  of 
Ess-ex,  deceased,  which  will  has  been  duly  offered  for  probate 

herein,  and  that  the  said  William  Jones  resides  in  the 

of ,  in  the  County  of and  State  of , 

and  that  the  said  petitioner  cannot  proceed  in  this  matter  with- 
out the  benefit  of  his  testimony. 

It  is,  on  this    day  of    ,    19...,   ordered  that 

a  commission  issue  out  of  and  under  the  seal  of  this  court 

directed  to    ,  of  the    of    ,   in  the 

County  of   and  State  of   ,  authorizing  him 

to  examine  de  bene  esse  the  said  witness  above  named,  on 
oath  or  affirmation  upon  the  interrogatories  annexed  to  said 
commission,  and  to  reduce  such  examination  to  writing,  and 
to  return  the  same  annexed  to  the  said  commission  into  this 
court. 

F.  G.  S.,  Jr., 
Surrogate. 


Form  204.     Commission  for   Examination   of   Witness   De   Bene 
Esse. 

[See  2  Comp.  Stat.,  page  2232,  section  S7-] 

Essex  County  Surrogate's  Court. 


Tkstimoxv  Dn  Bkxf  Esse.  1169 


State  of  Xew 

COUXTV  OF 


tw  Jersev,  I 
F  Essex.      j 


The  State  of  New  Jersey  to  , 

of  the    of    ,   in  the 

County   of    and    State   of 

Greeting: 

Know  ye,  that  we  in  confidence  of  your  prudence  and  fideHty 
have  appointed  you,  and  by  these  presents  do  give  unto  you 
full  power  and  authority  diligently  to  examine  William  Jones, 

of  the of in  the  County  of and  State  of 

upon  certain  interrogatories  to  be  exhibited  to  you, 

and  therefore  we  command  you  that  at  certain  dates  and  places 
to  be  appointed  by  you  for  that  purpose,  you  do  cause  the 
said  witness  to  come  before  you,  and  then  and  there  examine 
him  on  his  corporal  oath  or  affirmation  first  taken  before  you, 
and  that  you  do  take  such  his  examination  and  cause  the  same 
to  be  reduced  to  writing  and  signed  by  said  witness  and  by 
yourself ;  and  when  you  have  so  taken  it,  you  are  to  send  it 
to  us  in  our  Surrogate's  court,  without  delay,  closed  up  under 
your  seal  distinctly  and  plainly  set,  together  with  the  said 
interrogatories  and  this  writ.  And  we  further  command  you 
before  you  act  in  or  be  present  at  the  swearing  or  examination 
of  any  witness  or  witnesses,  you  do  take  the  oath  specified  in 
the  schedule  hereto  annexed  before  some  person  competent 
to  administer  the  same. 

Witness,  F.  G.  S.,  Jr.,  Judge  of  the  Surrogate's  Court  of 
the  County  of  Essex,  in  the  State  of  New  Jersey,  at  Newark, 

this    day  of    in   the  }ear  of  our   Lord,  one 

thousand,  nine  hundred  and 

F.  G.  S..  Jr.. 
Clerk  of   the   Surrogate's   Court. 


Form  205.     Interrogatories  on   Probate  of  Will. 

[See  2  Conip.  vStat.,  i)a.uc  ^-'3-'.  section  37.  and   V.  L.   1915,  pa.ur  141, 
page  58,  supra.] 

Essex  Couxtv  vSurroc.ati;'s  Corur. 


1170  Probate  Law  and  Practice. 

In  the  matter  of  the  probate"^ 
of   the   will   of   John   Doe,    de-  vOn  Petition  for  Probate, 
ceased.  J 

Interrogatories  to  be  Ad- 
ministered to  N  0  n  - 
Resident  Witness. 

Interrogatories  to  be  administered  to ,  one  of  the 

subscribing  witnesses  of  the  last  will  and  testament  of  John 
Doe,  deceased,  to  be  produced,  sworn  and  examined  upon  the 
part  of  the  proponent  in  a  certain  matter  now  pending  in  the 
Essex  County  Surrogate's  Court  of  the  State  of  New  Jersey, 
in  the  matter  of  the  probate  of  the  last  will  and  testament 
of  John  Doe,  deceased. 

1.  Were   you   acquainted   with   John   Doe,   who   resided   in 

the of ,  in  the  County  of  Essex  and  State  of 

New  Jersey? 

2.  Examine  the  paper  writing  hereto  annexed  purporting  to 
be  the  last  will  and  testament  of  the  said  John  Doe,  and  state 
whether  you  recognize  your  signature  thereon  as  a  witness? 

3.  If  you  find  that  your  signature  is  annexed  to  said  paper 
writing  as  a  witness,  state  how  you  came  to  sign  the  same?' 

4.  If  you  signed  the  said  paper  writing  as  a  witness,  state 
who,  if  anybody,  was  present  at  the  time  you  signed  the  same? 

5.  Examine  the  said  paper  writing  and  state  whether  you 
know  who  signed  the  name  "John  Doe"  which  appears  upon 
the  ....  page  of  said  writing.  State  also  your  means  of 
knowledge. 

6.  Were  you  present  when  the  signature  mentioned  in  the 
fifth  interrogatory  was  made  ? 

7.  If  you  were  present  when  the  signature  mentioned  in  the 
fifth  interrogatory  was  made,  state  who  made  it,  also,  who,  if 
anybody  besides  yourself,  was  present  at  that  time,  and 
whether  you  saw  the  said  signature  written? 

8.  If  you  were  present  when  the  signature  mentioned  in  the 
fifth  interrogatory  was  made,  state  what,  if  anything  was  said 
by  the  person  signing  the  name  "John  Doe"  at  the  time  of,  or 
before  the  making  of  said  signature? 

9.  If  any  statement  or  declaration  was  made  by  the  person 
signing  the  name  "John  Doe"  at  or  before  the  time  of  the 


Testimony  De  Bene  Esse.  1171 

making  of  said  signature,  state  wlio  was  present  at  the  time  of 
making  such  declaration. 

10.  If  your  knowledge  as  to  who  executed  the  signature 
mentioned  in  the  fifth  interrogatory  is  derived  from  any  dec- 
laration or  statement  made  by  any  person,  state  who,  if  any- 
body besides  yourself,  was  present  when  such  statement  or 
declaration  was  made. 

11.  If  you  signed  the  said  paper  writing  as  a  w^itness,  did 
you  know  the  nature  of  the  paper  you  were  witnessing?  If 
so,  state  your  means  of  knowledge. 

12.  If  your  knowledge  of  the  nature  of  said  papei"  writing 
was  derived  from  the  statement  or  declaration  of  any  other 
person,  state  wdio.  if  anyjjody,  besides  yourself,  was  present 
when  such  statement  or  declaration  was  made. 

13.  Do  you  know  who  signed  the  name (the  other 

zvitness  of  the  ivill)  which  appears  upon  the   page  of 

said  paper  writing?     If  you  know,  state  who  signed  it,  and 
also  your  means  of  knowledge. 

14.  Who  was  present  when  the  signature  mentioned  in  the 
thirteenth  interrogatory  was  made? 

15.  Examine  the  .said  paper  w^-iting  and  state  whether 
you  know  in  what  order  the  signatures  which  appear  upon  the 
page  of  said  paper  were  affixed  thereto. 

The  interrogatories  must  be  approved  by  the  Surrogate  or,' 
when  issued  out  of  the  Orphans'  Court,  by  a  judge  of  that 
court.  In  proceedings  before  the  Surrogate,  w^hich  are  usu- 
ally ex  parte,  no  notice  of  the  application  for  the  commission 
and  approval  of  interrogatories  is  necessary.  In  a  case  of  a 
commission  issued  out  of  the  Orphans'  Court,  however,  five 
days  notice  of  such  application  must  be  given.  In  a  con- 
tested case  in  the  Orphans'  Court,  the  respondent  may  submit 
cross-interrogatories,  which  must  likewise  be  approved  by 
the  court. 


Form  206.     Directions  for  the  Execution  of  a  Commission  by  Com- 
missioner. 

[Sec  P.  L.  1915,  page  141,  page  58,  .supra.] 

Essex  County  Surrog.ate's  Court. 


1  i  72  Probate  Law  and  Practice. 

In  the  matter  of  the  probate"^ 
of  the  last  will  of  John  Doe,  de-  vOn    Petition    for    Probate. 
<:eased.  J 

Directions  for  Execution 
of  Commission. 

I.  The  commissioner  before  entering  upon  his  duties  must 
take  oath  or  affirmation  before  any  person  lawfully  authorized 
to  administer  an  oath  or  affirmation  in  the  state,  territory  or 
kingdom  where  the  commissioner  resides  or  may  be  at  the 
time,  in  the  following  form : 


-State  of  

County  of  . . . 


■} 


I, ,  do  swear  that  I  will  faithfully, 

fairly  and  impartially  execute  the  annexed  com- 
mission to  the  best  of  my  skill  and  knowledge. 


Dated, ,  .  . . .  ")    (Signature  of  coni- 

,...,..., ,  19 .  . .      (  missioner. ) 


2.  Before  examining  the  witness,  the  latter  should  be  sworn 
in  the  usual  form,  or,  if  conscientiously  opposed  to  taking  an 
oath,  then  his  affirmation  may  be  taken. 

3.  The  commissioner  will  cause  the  examination  of  each 
witness  to  be  reduced  to  writing  and  to  be  subscribed  by  him ; 
and  the  commissioner  shall  also  sign  the  same. 

4.  The  heading  or  title  of  the  deposition  is  as  follows :  "De- 
positions of  Witnesses  Produced,  Sworn  and  Executed  the 
day  of ,  19.  .,  under  and  by  virtue  of  a  Com- 
mission issued  out  of  the  Surrogate's  Court  of  the  County  of 
Essex  in  the  State  of  New  Jersey,  in  the  Matter  of  the  Pro- 
bate of  the  Last  Will  and  Testament  of  John  Doe,  deceased, 
therein  depending  {or  otherzvise  as  tJie  case  may  be). 

William  Jones,  of  the   of .,  in  the  County 

of and  State  of a  witness  produced  on  the 

part  of  the  proponent,  being  duly  sworn  (or  affirmed)  deposes 
and  says : 

First.  To  the  first  interrogatory  he  says  (and  so  on  through 
the  several  interrogatories). 


Testimoxv  De  Bene  Esse.  1173 

When  the  deposition  is  finished,  it  shonld  be  subscribed  by 
the  witness  and  certified  in  the  following  form  : 

Examination    taken,    reduced   to" 
writing     and     sworn     to,     this  , 

day  of    ,19..,^  \\iLLiAM  Jones. 

before  me. 

{Signature  of  Commissioner.) 

5.  If  any  exhibits  are  produced  and  proved  before  the  com- 
missioner, they  shall  be  annexed  to  the  depositions  to  which 
they  relate,  and  shall  be  certified  by  the  commissioner,  or,  if 
requested  by  the  party  producing  the  exhibit,  the  commis- 
sioner will  mark  it  as  an  exhibit  in  the  matter  and  return  it  to 
the  party  offering  it. 

6.  The  commissioner  will  endorse  on  the  back  of  the  com- 
mission the  following  return :  "The  execution  of  the  fore- 
going commission  appears  by  the  deposition  and  commission 
hereunto  annexed." 

(Signature  of  commissioner.) 

7.  The  commissioner  will  annex  the  interrogatories,  deposi- 
tions and  exhibits  to  the  commission  and  close  up  the  same 
under  his  hand  and  seal  (which  is  usually  done  by  sealing 
the  envelope  and  writing  the  commissioner's  name  across  the 
seal)  and  direct  the  same  to  the  Surrogate  at  Newark.  If  the 
package  is  to  be  sent  by  mail,  the  commissioner  may  place  the 
same  in  any  post  office,  certifying  upon  the  back  of  the  en- 
velope containing  the  same  the  time  when  and  the  post  office  in 
which  the  same  has  been  so  placed,  as  follows :   "Deposited  in 

the  post  office  at this day  of ,  19 .  . , 

by  me, 

{Signature.) 

8.  It  is  lawftil  for  the  commissioner  to  delixcr  the  commis- 
sion and  return  closed  up  and  directed  as  aforesaid  to  the 
party  procuring  the  commission,  his  attorney  or  agent,  who 
shall  deliver  the  same  to  the  Surrogate,  in  which  case  the 
person  delivering  the  package  will  be  required  to  take  oath 
that  he  received  the  said  conmiission  and  retm-n,  sealed  up, 
from  the  hands  of  the  said  commissioner,  at   on  the 


11/4  Probate  Law  and  Practice. 

day  of ,  19.  . ,  and  that  the  same  has  not  been 

opened  or  altered  since  he  received  it. 

9.  In  the  case  of  a  commission  which  has  been  executed 
in  'a  foreign  state,  nation  or  kingdom,  it  may  be  transmitted 
to  the  party  on  whose  application  it  was  issued,  his  agent  or 
attorney  in  the  United  States,  who  will  deliver  the  same  to 
the  Surrogate,  making  oath  or  affirmation  when  and  how  he 
received  it,  and  also  that  he  verily  believes  that  it  has  not 
been  opened  or  altered  since  it  was  closed  up  and  sealed  as 
aforesaid. 

10.  If  the  commission  and  return  have  been  received  by 
mail,  the  Surrogate,  upon  being  satisfied  that  it  has  not  been 
opened  or  altered  since  it  was  closed  up  and  sealed,  will  open 
the  same  and  endorse  thereon :  "This  packet  received  this 
......  day  of  ,  19.  .  . ,  sealed  up,  from  the  post- 
master at ,  and  opened  by  me,"  which  endorsement  he 

shall  sign,  and  immediately  file  the  commission  and  return.  If 
the  packet  shall  be  delivered  by  the  party  securing  the  com- 
mission, his  agent  or  attorney,  the  endorsement  will  be  made 
accordingly,  and  the  affidavit  of  the  messenger  will  also  be 
filed  with  the  commission  and  return. 


DISCHARGE    AND    REMOVAL    OF    EXECUTORS, 

ETC. 

Form  207.     Petition  by  Executor  for  Discharge. 

[See  Orphans'  Court  Act,  section '146,  page  612,  supra,  and  Orphans' 
Court  Rule  29,  page  614,  supra.] 

Essex  Countv  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On    Petition    of    Executor 
John  Doe,  deceased.  j  for  Discharge. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

^The  petition  of  William  Doe,  of  the   of   

in  the  County  of  and  State  of  ,  respectfully 

shows,  that : 


DiSCHARGK  OF  EXKCUTORS  &C.  11/5 

1.  Your  petitioner  is  the  executor  named  in  the  last  will 
of  John  Doe,  deceased,  which  said  will  was  duly  proved  before, 
and  letters  testamentary  thereon  duly  issued  by  the  Surrogate 

of  the  County  of  Essex  on  the day  of ,  19.  .  ; 

petitioner  has  entered  on  the  duties  of  his  otiice,  but  has  not 
fully  performed  the  same. 

2.  Your  petitioner  is  about  to  remove  from  the  State  of 
Xew  Jersey  and  therefore  desires  to  be  discharged  from  the 
further  performance  of  the  duties  of  his  said  office. 

3.  The  persons  interested  in  this  application  are  as  follows : 

X.  Y.,  who  resides  at  No , Street  in  the 

of ,  in  the  State  of ;  R.  D.,  who  resides  at  No. 

, Street  in  the of ,  in  the  State. of 

;   and  L.  S.,  who  resides  at  No , Street, 

in  the of ,  in  the  State  of ,  legatees  and 

devisees  under  the  last  will  of  the  said  John  Doe,  deceased ;  all 
of  the  aforesaid  parties  in  interest  are  of  full  age  with  the 
exception  of  the  said  X.  Y.,  w^ho  is  a  minor  of  the  age  of  16 
years  and  resides  with  her  parents,  R.  Y.  and  B.  Y.,  at  the 
aforesaid  address. 

Your  petitioner  therefore  prays  that  he  may  be  discharged 
from  the  further  performance  of  the  duties  of  his  said  office 
of  executor  of  the  aforesaid  estate. 

Dated  Newark,  N.  J., 

William  Doe. 
> >  ly .  .  . 

State  of  New  Jersey,  ) 
County  of  Essex.      j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this" 

day  of   

19..,  at  Newark,  N.  J.,  before 
me, 

J-  C.  F., 

Notary  Public  of  N.  J 


a 


William  Doe. 


]  J  76  Probate  Law  and  Practice. 

Thirty  days  notice  of  this  appHcation  must  be  given  to  all 
parties  interested  or  to  such  of  them  as  the  court  shall  by 
order  direct.  The  court  on  good  cause  shown  may  direct  that 
less  than  30  days  notice  be  given. 

For  form  of  notice  of  application  see  Form  214,  for  proof 
of  service  Form  38. 


Form  208.     Order  Discharging   Executor,   Etc. 

[See  Orphans'  Court  Act,  section  146,  page  612,  supra;  and  Orphans' 
Court  Rule  29,  page  614,  supra.] 

Essex  Couxty  Orphans'  Court. 

In   the  matter  of   the   estate  of  )  On    Petition    of    Executor 
John  Doe,  deceased.  j  for  Discharge. 

Order  DiscJiarging  Executor. 

It  appearing  from  the  petition  of  William  Doe,  filed  herein, 
that  the  said  William  Doe  is  the  executor  of  the  last  will  of 
John  Doe,  deceased,  and  that  letters  testamentary  were  issued 
to  him  by  the  Surrogate  of  the  County  of  Essex,  and  that  said 
petitioner  prays  that  he  may  be  discharged  from  the  further 
performance  of  his  duties  as  such  executor;  and  it  appearing 
that  due  notice  of  this  application  has  been  given  to  all  parties 
interested  in  the  estate  of  the  said  John  Doe,  deceased,  (or 
tiiat  all  of  the  parties  in  interest  have  duly  consented  hereto) 
and  the  court  having  examined  into  the  matter  and  it  appear- 
ing that  there  is  sufficient  reason   for  such  discharge. 

It  is   thereupon   on   this    day   of    ,    19..., 

ordered  that  the  said  William  Doe  be  and  he  is  hereby  relieved 
and  discharged  from  all  further  duties  of  his  said  office,  ex- 
cept accounting  for  and  paying  over  the  moneys  or  assets  re- 
ceived by  him  by  virtue  of  his  said  office. 

W.  P.  M., 

Judge. 


Form  209.     Petition   for   Removal   of   Executor   or  Administrator. 

[See   Orphans'   Court  Act,   section    149,   page  600,  supra,  ib.   section 
151,  page  611,  supra;   and  ib.  section  152,  page  608,  supra.] 

Essex  County  Orphans'  Court. 


Removal  of  Exkcutors  &:c.  ir 


In   the   matter  of   the   estate  of  |  On    Petition    for   Removal 
Jolm  Doe,  deceased.  j  of  Administrator. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of and  State  of ,  respectfully  shows 

that : 

1.  He  is  one  of  the  children  of  John  Doe,  late  of , 

deceased,  and  letters  of  administration  upon  the  estate  of  the 
said  John  Doe,  deceased,  have  been  duly  issued  to  James  Doe 
by  the  Surrogate  of  the  County  of  Essex. 

2.  The  said  James  Doe,  administrator  as  aforesaid,  has 
deposited  the  funds  of  the  said  estate  in  his  personal  bank 
account,  has  mingled  them  with  his  own  funds,  and  on  the 
day  of  ,  the  said  James  Doe  purchased  cer- 
tain lands  and  premises  known  and  designated  as  No , 

Street,  in  the  City  of ,  with  money  of  the 

estate  of  the  said  John  Doe,  and  took  the  title  thereto  in  his 
own  name ;  and  the  said  administrator  has  otherwise  wasted 
and  misapplied  the  funds  of  the  said  estate  committed  to  his 
care. 

Your  petitioner  therefore  prays  that  this  court  may  revoke 
the  letters  of  administration  granted  to  the  said  James  Doe 
as  aforesaid  and  remove  him  from  his  said  office. 

Dated  Newark,  N.  T..  ,,.  ^ 

William  Doe. 
•  ••, ,  19  •  •  • 


State  of  New  Jersev, 
County  of  Esse 


SRSEV,  ) 
;ex.      j 


William  Doe,  being  dul}-  sworn  according  tcj  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 
tained therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscri])ed  and  sworn  to  this"] 

day  of   

Kj.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


William  Doe. 


1 178  Probatk  Law  and  Practice. 

Five  days  notice  of  applications  of  this  character  is  required 
by  Orphans'  Court  Rule  39;  the  better  practice  is  however  to 
take  a  rule  to  show  cause;  for  form  of  notice  see  Form  214, 
for  rule  to  show  cause  Form  213,  for  proof  of  service  Form 
38. 


Form  210.     Order  to  Show  Cause  Why  Executor  or  Administrator 
Should  Not  be  Removed. 

[See  Orphans"  Court  Act,  section  149,  page  600,  supra,  ib.  section  151, 
page  611,  supra;   and  ib.  section  152,  page  608,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  )  On    Petition    for    Removal 
John  Doe,  deceased.  J  of  Administrator. 

Rule  to  Shozv  Cause. 

William  Doe,  of  the of ,  in  the  County  of 

,  and  State  of ,  having  hied  his  petition  herein 

alleging  that  he  is  one  of  the  children  of  John  Doe,  late  of  the 
County  of  Essex,  deceased,  and  that  James  Doe,  the  adminis- 
trator of  the  estate  of  the  said  John  Doe,  deceased,  has  wasted 
and  mismanaged  the  aforesaid  estate  entrusted  to  his  care 
as  such  administrator,  and  praying  that  the  said  James  Doe 
may  be  removed  from  his  aforesaid  office. 

It  is  thereupon,   on   this    day   of    ,    19..., 

ordered  that  James  Doe,  the  administrator  of  the  estate  of 

John  Doe,  deceased,  show  cause  before  this  court  on  the 

day  of ,  19.  . . ,  at  ten  o'clock  why  he  should  not  be 

removed  from  his  office  of  administrator  of  the  estate  of  the 
said  John  Doe,  deceased. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy  of 
this  order  be  served  upon  the  said  James  Doe,  personally  or 
by  leaving  the  same  at  his  residence  or  usual  place  of  abode 

with  a  person  over  the  age  of   fourteen  years,  within 

days  from  the  date  hereof. 

W.  P.  M., 
Judge. 

For  form  of  proof  of  service  see  Form  38. 


Removal  of  Executors  &c.  1179 

Form  211.     Order  Removing  Administrator. 

[See  Orphans'  Court  Act,  section  149.  page  600,  supra:   ib.  section  151, 
page  611,  supra;   il).  section  152,  page  608.  supra.] 

Essex  County  Orphans'  Court. 


In   the  matter  of   the   estate  of  |  On    Petition    for    Removal 
John  Doe.  deceased.  (  of  Administrator. 


Order  Removing  Adminis- 
trator. 

William  Doe,  one  of  the  next  of  kin  of  John  Doe,  late  of 
the  County  of  Essex,  deceased,  having  presented  his  petition, 
alleging  that  Jarnes  Doe,  the  administrator  of  the  estate  of 
the  said  John  Doe,  deceased,  has  wasted  and  misapplied  the 
funds  of  the  said  estate  committed  to  his  custody,  and  it  ap- 
pearing that  due  notice  of  this  application  has  been  given  by 
rule  to  show  cause  duly  served  upon  the  said  administrator, 
and  the  cour.t  having  inquired  into  the  matter  and  it  being 
made  to  appear  that  the  said  James  Doe,  administrator  as 
aforesaid,  has  wasted  and  misapplied  a  part  of  the  said  estate 
committed  to  his  care. 

It  is  thereupon  on  this day  of ,  19.  .  . ,  ordered 

that  the  letters  of  administration  granted  to  the  said  James 
Doe,  as  aforesaid,  be  and  the  same  are  herel^y  revoked,  and 
the  said  James  Doe  is  hereby  removed  from  his  office  as  such 
administrator. 

And  due  notice  having  been  given  to  the  widow  and  all  the 
next  of  kin  of  the  said  John  Doe,  deceased,  it  is  further  or- 
dered that  letters  of  substitutionary  administration  upon  the 
estate  of  the  said  John  Doe,  deceased,  be  granted  to  William 
Doe,  one  of  the  children  of  the  said  John  Doe,  deceased,  tipon 

his  giving  bond  to  the  ordinary  in  the  sum  of dollars. 

in  manner  and  form  required  by  law  with  sureties  to  be  ap- 
proved by  this  court. 

And  it  is  further  ordered  that  the  said  James  Doe  forth- 
with surrender  and  deliver  to  the  said  William  Doe  all  goods 
and  chattels,  moneys  anrl  effects  and  other  assets  which  he 
may  hold  as  such  administrator  and  that  he  state  and  settle  his 


ii8o  Probate  Law  and  Practice. 

account  as  such  administrator  at  the  next  term  of  court  and 
pay  and  deliver  the  balance,  if  any,  found  due  upon  such  ac- 
counting to  the  said  William  Doe,  substituted  administrator 
as  aforesaid,  within  sixty  days  after  the  settlement  of  his  said 
account. 

W.  P.  M., 

Judge. 


PROCESS. 

Form  212.     General  Form  of  Citation. 

[See  Orphans'  Court  Act.  section  174,  page  39,  supra.] 

Essex  County  Orphans'  Court. 
State  of  New  Jersey, 


r} 


County  of  Essex.       ( 

The  State  of  New  Jersey  to 
[l.  S.]  and and 

Greeting  : 

We  cite  and  command  you  that  you  personally  be  and  ap- 
pear before  the  Orphans'  Court  to  be  holden  in   Newark  in 

and  for  the  Comity  of  Essex  on the day  of 

,  one  thousand  nine  hundred  and    at  ten 

o'clock  in  the  forenoon,  at  the  Court  House  in  the  Cit}'  of 
Newark  to  (Jicrc  insert  relief  sought),  and  to  abide  the  judg- 
ment of  the  said  court  in  the  premises. 

Witness    ,   Judge   of   our   said   Orphans'   Court   at 

Newark,  aforesaid,  this  day  of  one  thou- 
sand nine  hundred  and   


Surrogate  and  Clerk. 
This  citation  must  be  served  by  the  sheriff. 


Form  213.     General  Form  of  Rule  to  Show  Cause. 

[See  Orphans'  Court  Act.  section  179,  page  39.  supra.] 

Essex  County  Orphans'  Court. 


Process.  iiSi 


"'! 


In   the   matter  of   the  estate 
John  Doe,  deceased. 

Rule  to  Show  Cause. 

Apphcation  having  been  made  by  W'iUiam  Doe,  one  of  the 
children  and  next  of  kin  of  John  Doe,  deceased,  setting  forth, 
under  oath,  that  James  Doe,  executor  of.  the  estate  of  the  said 
John  Doe,  deceased,  has  wasted  and  misappHed  a  portion  of 
the  estate  committed  to  his  custody  {or  as  the  case  may  be). 

It   is   thereupon   on   this    day  of    ,    19.  . . , 

ordered  that  the  said  James  Doe  show  cause  before  this  court 

on  the day  of ,  19.  . ,  at  10  a.  m.,  at  the  Court 

House,  in  the  City  of  Newark,  why  he  should  not  be  removed 
from  his  said  office  of  executor  as  aforesaid. 

It  is  further  ordered  that  a  true,  but  uncertified  copy  of 
this  rule  be  served  upon  the  said  James  Doe,  either  personally 
or  by  leaving  the  same  at  his  residence  with  a  member  of  his 
family  over  fourteen  years  of  age  within  ....  days  from 
the  date  hereof. 

W.  P.  M., 

Judge. 

For  form  of  proof  of  service  see  Form  38. 


Form   214.     General   Form   of  Notice  of   Application   to   Orphans' 
Court  or  Surrogate. 

Essex  County  Ori'hans'  Court. 

In  the  matter  of  the  estate  of  | 
John  Doe,  deceased.  j 

A'otice  of  Application. 

To and and : 

You  are  hereby  notified  that  on  the day  of 

19...,  at  the  Court  House  in  the  City  of  Newark,  at  ten 
o'clock  in  the  forenoon,  I  shall  ap])ly  to  the  Orphans'  (or 
Surrogate's)  Court  of  the  County  of  Ivssex  for  an  order  (here 
describe  order  for  ivhich  application  will  be  made). 

Dated  Newark,  N.  J.,  ,^   ,^ 

'        ■'  '  X.  Y. 

»  i9--- 


For  proof  of  service  see  Form  38. 


ii82  Probate  Law  and  Practice. 

Form  215.     Subpoena  to  Testify  before  Surrogate. 

[See  P.  L.  1915,  page  140.  page  57.  supra.] 

Essex  County  Surrogate's  Court. 
State  of  New  Jersey, 


County  of  Essex,      j 

The  State  of  New  Jersey. 

To  Henry  Brown,  of  Number , 

[l.  s.]  Street,  in  the of , 

in  the  County  of ,  and  State 

of  New  Jersey. 
Greeting  : 

By  virtue  of  this  writ,  you  are  hereby  commanded  to  per- 
sonally be  and  appear  before  the  Surrogate's  Court  of  the 
County  of  Essex,  to  be  holden  at  the  Court  House,  in  the  City 

of   Newark,  on   the    day  of    ,   one  thousand 

nine  hundred  and    at  ten  o'clock  in  the  forenoon,  to 

give  evidence  in  the  matter  of  the  probate  of  a  certain  paper 
writing  purporting  to  be  the  last  will  and  testament  of  John 
Doe,  deceased,  (or  os  the  case  may  be),  now  pending  unde- 
termined in  our  said  court,  and  tlfis  you  are  in  no  wise  to  omit 
under  a  penalty  of  fifty  dollars. 

Witness,  F.  G.  S.,  Jr.,  Judge  of  our  said  Surrogate's  Court, 
at  Newark  aforesaid,  this day  of one  thou- 
sand nine  hundred  and 

F.  G.  S..  Jr., 
Surrogate   and   ex-officio   clerk 
of  the  Surrogate's  court. 
For  form  of  proof  of  service  see  Form  38. 


Form  216,     Subpoena  to  Testify  before  Orphans'  Court. 

Essex  County  Orphans'  Court. 
State  of  New  Jersey, 


SEY,  j 

X.      I 


PC 

County  of  Essex.       ' 

To  X.  Y. : 

By  virtue  of  this  writ  you  are  hereby  commanded  person- 


Process.  i  183 

ally  to  be  and  appear  before  the  Orphans'  Court 
[l.  S.]  to  be  holden  at  Newark  in  and  tor  the  County  of 

Essex  on  the day  of ,  iQ ....  at 

the  Court  House  in  the  City  of  Newark,  at  ten  o'clock  in  the 
forenoon  of  that  day  to  give  evidence  in  a  certain  cause  now 
pending,  undetermined  in  our  said  court  and  then  and  there 
to  be  tried  between  James  Doe,  caveator,  and  X.  Y.,  proponent, 
in  the  matter  of  the  probate  of  the  alleged  will  of  John  Doe, 
deceased  (or  as  the  case  Diay  be)  and  this  you  are  in  no  wise  to 
omit  under  a  penalty  of  one  hundred  dollars. 

Witness  \V.  P.  j\I.,  Esq.,  judge  of  our  said  court  at  Newark 
aforesaid,  the    day  of    ,  nineteen  hundred  and 


F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 
For  form  of  proof  of  service  see  Form  38. 


SERVICE  OF  CITATION  ON  NON-RESIDENT. 

Form  217.     Appointment  by  Surrogate  of  Person  to  Serve  Process 
on  Non-Resident. 
[See  Orplians'  Court  Act,  section  177.  page  40,  supra.] 

I,  F.  G.  S.,  Jr.,  surrogate  of  the  County  of  Essex,  hereby 
appoint  X.  Y.  to  make  service  of  the  within  citation  upon  the 
within-named  William  Doe.  who  resides  out  of  the  State  of 
New  Jersey. 

Dated'Xewark,  N.  J.,  F.  G.  S.,  Jr., 
, ,  19.  .  .  Surrogate. 


Form  218.     Proof  of  Service  of  Citation  upon  a  Non-Resident. 
[See  Orplians'  Court  .\ct.. section  177.  ]niii,(;  40,  supra.] 

State  of  New  Jersey, 


•■!• 


County  of  Essex. 

X.  Y.,  being  duly  sworn  according  to  law.  upon  his  oath,  de- 
poses and  says  that  on  the day  of 19.  . ,  he 

-erved  the  within  citation  upon   William   Doe.  to  whom  it  is 
76 


1 1 84  Probate;  Law  and  Practice. 

addressed,  by  delivering  to  him  personally  at  his  residence 
in  the  City  of  New  York  a  true  copy  thereof  {or  by  leaving  a 

true  copy  thereof  at  Number  .  . . Street,  in  the  City 

of  Nezv  York,  his  usual  place  of  abode,  with  some  person  of 
the  age  of  fourteen  years  or  upivards),  at  the  same  time  stat- 
ing its  nature  and  contents  and  exhibiting  the  original. 

Subscribed  and  sworn  to  this"^ 
day  of   ,1  X.  Y. 

I9-.--,  J 

l^efore  me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  219.     Order  of  Publication  of  Notice  to  Absent  Parties. 

[See  Orplians'  Court  Act.  section  178,  page  41,  supra.] 

Essex  County  Orphans'  Court. 


In'  the  matter  of  the  estate  of 
John  Doe,  deceased. 


Order  of  Publication. 


Process  of  citation  having  been  issued  in  the  above  matter, 
and  it  having  been  made  to  appear  to  the  satisfaction  of  the 
court  that  William  Doe,  the  person  against  whom  such  cita- 
tion has  been  issued  resides  out  of  this  State. 

It    is    thereupon    on    this    ......    day    of    ,    19.  •  - 

ordered  that  the  said  William  Doe  do  appear  in  the  aforesaid 

matter  on  the   day  of   ,   19.  . ,  and  in  default 

thereof  such  proceedings  will  be  had  against  him  as  if  he  had 
appeared  in  said  suit  or  proceeding,  and  it  is  further  ordered 
that  notice  of  this  order  as  prescribed  by  the  rules  of  the 
Court  of  Chancery  shall  within  ten  days  hereafter  be  served 
personally  upon  the  said  absent  defendant  by  the  delivery  of  a 
copy  thereof  to  him  personally,  or  iti  default  of  such  service 
that   said   notice   be    published   within   the    said    ten    days    in 

,   a   public   newspaper   printed   at    in   the 

County  of ,  (the  county  where  the  party  resided  zvheii 

the  injury  complained  of  occurred)  in  this  State  for  four 
weeks  successively  at  least  once  in  each  week  and  in  case  of 
such  publication  that  a  copy  thereof  be  also  mailed  within  tlie 


Process.  11S5 

same  time  to  the  said  absent  defeiuiant,  directed  to  his  post- 
office  address,  if  the  same  can  be  ascertained,  in  the  manner 
prescribed  by  law  and  the  rules  of  the  Court  of  Chancery. 

\V.  P.  M.,' 
Judge. 
This  order  must  be  made  returnable  not  less  than   thirty 
days  from  its  date.     For  form  of  Notice  of  Order  see  Form 
220. 


Form  220.     Notice  to  Absent  Parties. 

[See  Orphans'  Court  Act,  section  178,  page  41.  supra;  Chancery  Rules 
57,  58,  59  and  60.] 

Essex  Count v  Orphaxs'  Court. 

To  William  Doe : 

By  virtue  of  an  order  of  the  Orphans'  Court  of  the  County 
of  Essex,  made  on  the  day  of  the  date  hereof,  in  the  matter 
of  the  estate  of  John  Doe,  deceased,  on  petition  of  James  Doe, 
you  are  required  to  appear  and  answer  the  said  petition  on  or 

before  the day  of 19.  . ,  or  stich  proceeding 

will  be  had  against  you  as  if  you  had  appeared  in  said  pro- 
ceeding. 

The  said  petition  is  filed  for  the  purpose  of  obtaining  pro- 
bate of  a  certain  paper  writing  as  the  last  will  and  testament 

of  John  Doe,  late  of  the of  ,  in  the  County 

of and  State  of ,  deceased,  (or  othcrci.'isc,  as 

the  case  mav  be),  and  you  are  made  a  party  because  i  as  the 
case  may  be). 

Dated  Newark,  N.  T-. 

, ,19...  A.  R.  C, 

Proctor  for  petitioner. 
St..  Newark.  N.  J. 

This  notice  must  be  served  or  ])nblisbc(l  and  maik-d  within 
twenty  days  of  the  date  thereof,  if  i)tiblication  is  necessary 
it  is  made  by  publishing  the  same  in  one  of  tlu'  i)ublic  news- 
papers of  this  state  designated  in  the  order  for  four  weeks  at 
least  once  in  each  week-.    I'or  ff;rni  of  proDf  of  ])nblicati(in  of 


ii86  Probate  Law  and  Practice. 

notice,  see  Form  114,  for  proof  of  mailing  see  Form  39;    for 
proof  of  service  Form  38. 

Form  221.     Proof  of  Inquiry  for  Residence  and  Mailing. 

[See  Orphans'  Court  Act.  section  178.  page  41.  supra ;   Chancer}-  Rules 

57.  58,  59  and  60.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  estate 
Tohn  Doe,  deceased. 


Proof  of  Inquiry. 


State  of  New  Jersey 
County  of  Essex 


5EY,  1 


A.  B.  C,  l^eing  duly  sworn,  on  his  oath  deposes  and  says 
that  he  is  the  proctor  for  petitioner  and  the  person  actnally 
entrusted  with  the  management  and  conduct  of  the  above  en- 
titled matter ;  that  he  has,  in  good  faith,  made  diligent  and 
careful  inquiry  for  the  residence  and  post-office  address  of 
William  Doe,  one  of  the  parties  in  the  above-stated  matter 
and  that  he  is  credibly  informed  in  such  manner  that  he  be- 
lieves it  to  be  true  that  the  said  William  Doe  resides  in  the 

of   ,  in  the  State  of   and  that  his 

post-office  address  is :    and  this  deponent  did  on  the 

day  of last,  place  in  the  post  office  at 

a  letter  directed  to  the  said  ^^'illiam  Doe  at with  the 

postage  prepaid,  containing  a  copy  of  the  notice  hereto  an- 
nexed {or  as  zvcll  in  the  manner  directed  by  the  rules  of  the 
Court  of  Chancery  relating  thereto  as  in  every  other  zvay  by 
zvhich  he  thonglit  it  probable  that  he  could  ascertain  such 
residence  and  address  and  that  he  has  not  been  able  to  discover 
and  has  no  information  as  to  the  residence  or  post-office  ad- 
dress of  said  defendant). 

Subscribed  and  sworn  to  this^ 

day  of   ,  19...,  L  A.  B.  C. 

before  me,  J 

J.  C.  F., 

Notarv  Public  of  N.   T- 


ACCOUXTING.  TI87 

ACCOUNTING. 

Form  222.     Notice  of  Settlement  of  Account. 

[See  Orphans'  Court  Act.  <!ection  122.  page  644,  supra;  and  Orphans' 
Court  Rule  18,  page  645,  supra.] 

Notice  is  herein'  given  that  the  accounts  of  the  subscriber. 

the  administrator  of  the  estate  of  John  Doe,  late  of , 

deceased,  will  be  audited  and  stated  by  the  Surrogate  of  the 
County  of  Essex  and  reported  for  settlement  to  the  Orphans' 

Cou-rt  of  the  said  County  of  Essex,  on   ,  the 

day  of ,  19.  .  .,  at  which  time  application  will  l)e  made 

for  tlie  allowance  of  commissions  and  counsel  fees. 

Dated  Newark,  N.  J.,  William  Doe. 
- i9--- 

The  above  notice  must  l)e  set  up  for  one  month  in  li\e  of 
the  most  public  places  in  the  county  in  which  the  account  is 
to  be  settled,  one  whereof  shall  be  set  up  in  the  surrogate's 
office  of  the  said  County;  said  notice  must  also  be  published 
at  least  once  in  each  week  in  one  or  more  newspapers  pub- 
lished in  such  coimty  for  the  same  length  of  time;  and  a 
copy  of  such  notice  sent  by  mail  to  the  sureties  on  the  bond 
of  the  administrator,  etc.,  and  also  to  all  persons  interested  in 
the  settlement  of  the  said  account. 

For  proof  of  posting  see  Form  115;  for  proof  of  mailing  sec 
Form  39. 


Form    223.     Citation    on    Settlement    of    Guardian's    Intermediate 
Account  and  on  Final  Account  of  Guardian  or  Trustee. 

[See  Orphans'  Court  Act.  section  i_',3.  page  645,  supra. J 

Essex  County,  .s\v. — The   State  of  New  Jersey,  to   William 
Doe  and  James  Doe,  children  of  John  Doc.  dc- 
[l.  s.]  ceased,  Greeting:    Whereas,  the  surrogate  of  the 

Coimty  of  Essex  has  audited  and  stated  the  ac- 
count of  Richard  Doe,  administrator  of  the  estate  of  John 
Doe,  deceased,  and  the  same  will  be  reported  to  the  judge  of 
the  Orphans'  Cotirt  to  be  holden  at  Newark  in  and  for  the 

county  aforesaid,  on    ,  the   day  of   

19.  .  .,  at  the  Court  Ibjuse  in  the  City  of  Newark  at  ten  o'clock 


1 1 88  Probate  Law  and  Practice. 

in  the  forenoon,  for  final  settlement;  you  are  therefore  hereby 
cited  and  warned  that  you  be  and  appear  before  the  said  court 
at  the  time  and  place  aforesaid  to  except  to  the  said  account  if 
you  think  proper. 

Witness  W.  P.  M.,  Esq.,  judge  of  the  said  Orphans'  Court 
at  Newark  aforesaid,  the day  of ,  one  thou- 
sand nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate. 

This  citation  may  be  served  by  the  guardian  or  trustee  or 
bv  any  one  in  his  behalf  and  need  not  be  served  bv  the  sheriff. 


Form  224.     Petition  on  Accounting  of  Executor,  Administrator  or 
Guardian. 

[See  Orphans"  Court  Rule  ig.  page  634,  supra.] 

Essex  County  Orphans'  Court. 

In   the   matter  of   the   estate  of  )  .,      . 

-r  ,      T^         ,  ,  >  ( )u  Accountmg, 

John  Doe.  deceased.  j 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the    of    , 

in  the  County  of and  State  of   ,  respectfully 

shows  as  follows : 

1.  Your  petitioner  is  the  administrator  of  the  estate  of 
John  Doe,  deceased,  and  herewith  presents  his  account  of  his 
administration  of  the  aforesaid  estate. 

2.  The  names  and  addresses  of  all  persons  interested  in 
said  accounting  are  as   follows :    Henry  Doe,  of   full  age,   a 

brother  of  intestate,  who  resides  at  Number   

Street,  in  the   of   in  the  County  of   , 

and  State  of ;    Mary  Williams,  of  full  age,  a  sister  of 

intestate,  who  resides  at  Number    .....    Street,   in 

the  City  of in  the  County  of   ....;...,  and  State  of 

;    Mary  Jones,  a  minor  of  the  age  of  sixteen  years. 

the  daughter  of  Eliza  Jones,  a  deceased  daughter  of  the  said 
John  Doe,  deceased,  and  who  resides  with  her  father,  Henrv 
Jones,  at  Number Street,  in  the  City  of 


Accounting.  1189 

in  the  County  of and  State  of :  no  guardian  has 

been  appointed  for  the  said  Mary  Jones,  so  far  as  your  peti- 
tioner has  been  informed. 

3.  The  following  is  a  summary  of  his  aforesaid  accoimt : 

Accountant  charges  himself  as  folloK's: 

To  amount  of  Inventory $5,000  00 

Amount  collected  in  addition  to  In\entory  ....        3,000  00 


Total  charges   $8,000  00 

Accountant  prays  allowance  as  foUozvs: 
Amount  of  expenditures 1,000  00 


Balance  in  the  hands  of  accountant $7,000  00 

Your  petitioner  therefore  prays  that  said  account  may 
be  allowed,  and  also  for  the  allowance  of  commissions  and 
counsel  fees. 

Dated  Newark,  N.  J.,  William  Doe. 
, ,  I9--- 


State  of  New  Terse Y; 
County  of  Essex. 


William  Doe.  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this" 

day  of   , 

19..,  at  Newark,  N.  J-,  before 
me. 

F.  R.  S., 

Notary  Public  of  N.   T. 


W^iLLiAM  Doe 


Form  225.     Petition  on  Second  or  Other  Accounting. 
[See  Orphans'  Court  l\ule  19.  page  634,  supra.] 

Essex  County  Orphans'  Court. 
In   the   matter  of   the  estate 


,  On  accounting. 
lohn  Doe.  deceased. 


"\ 


Petition. 


1 190  Probatk  Law  and  Practice. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  WilHam  Doe.  of  the   of   , 

in  the  County  of    ,  and   State  of    respectfully 

shows  as  follows : 

1.  Your  petitioner  is  the  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  deceased,  and  herewith  presents  his  ac- 
count of  his  administration  of  the  aforesaid  estate. 

2.  The  names  and  addresses  of  all  persons  interested  in 
said  accounting  are  as   follows :    Henry  Doe,  of   full   age,  a 

brother  of  testator,  who  resides  at  Number    .  .  .  . ,    

Street,  in  the   of   ,  in  the  County  of    

and  State  of ;    Mary  Williams,  of  full  age,  a  sister  of 

testator,  who  resides  at  Numljer   ,   Street,  in  the 

City  of ,  in  the  County  of and  State  of ; 

Mary  Jones,  a  minor  of  the  age  of  sixteen  years,  the  daughter 
of  Eliza  Jones,  a  deceased  daughter  of  the  said  John  Doe, 
deceased,  and  who  resides  with  her  father,  Henry  Jones,  at 

Number  .  . .  . , Street,  in  the  City  of   ,  in  the 

County  of and  State  of ;   no  guardian  has  been 

appointed  for  the  said  Mary  Jones,  so  far  as  your  petitioner 
has  been  informed. 

3.  The  following  is  a  summary  of  his  aforesaid  account : 
Accountant  charges  himself  as  follows: 

Balance  in  hands  of  accountant  as  shown  in  last 

previous  account   $  8,000  00 

Amount    received    during   period   covered   by   this 

account    5,ooo  00 


Total  charges ' $13-000  00 

Accountant  prays  allowance  as  folloivs: 
Amount  of  disbursements  as  shown  by  said  account      3,000  00 


Balance  in  the  hands  of  accountant $10,000  00 

Your  petitioner  therefore  prays  that  said  account  may  be 
allowed  and  also  for  the  allowance  of  commissions  and  counsel 
fees. 


Accounting. 


Dated  Newark.  N.  J., 
i9---- 

State  of  Xew  Jersev, 
CouNTv  OF  Essex. 


1191 
William  Doe. 


ss. 


William  Doe,  Ijeing  tluly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this 

day  of    , 

19..,  at  Newark,  N.  J.,  before 
me, 

E.  C.  G., 

Notary  Public  of  N.  J 


William  Doe. 


Form  226.     Petition  on  Trustee's  First  Account. 

[See  Orphans'  Court  Rule  19,  page  634,  supra.] 

Essex  County  Orphans'  Court, 


In   the   matter  of   the  estate 
John  Doe,  deceased. 


°f  }  On 


Accounting. 


Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the   of   

in  the  County  of    and   State  of    respectfully 

shows  as  follows : 

1.  Your  petitioner  is  the  trustee  under  the  last  will  and 
testament  of  John  Doe,  deceased,  and  herewith  present^  his 
account  of  his  administration  of  the  aforesaid  estate. 

2.  The  names  and  addresses  of  all  persons  interested  in  said 
accounting  are  as  follows:    llenry  Doe,  of  full  age,  a  l)rother 

of  testator,  who  resides  at  Number Street,  in 

the   of   ,  in  the  County  of   and  State 

of   ;    Mary  W' illiams,  of  full  age,  a  sister  of  testator, 

who  resides  at  Number  .  . .  . ,   vStreet  in  the  Citv  of 


1 192  Probate  LvAW  and  Practice. 

,  in  the  County  of    and  State  of    ; 

Mary  Jones,  a  minor  of  the  age  of  sixteen  years,  the  daughter 
of  EUza  Jones,  a  deceased  daughter  of  the  said  John  Doe, 
deceased,  and  who  resides  with  her  father,  Henry  Jones,  at 

Number    .  .  .  . ,    Street  in  the   City  of    ,  in 

the  County  of and  State  of ;    no  gyardian 

has  been  appointed  for  the  said  Mary  Jones,  so  far  as  your 
petitioner  has  been  informed. 

3.  The  following  is  a  summary  of  his  aforesaid  account : 

As  to  Corpus. 

This  accountant  charges  himself  with    $10,000  00 

This  accountant  prays  allowance  for 1,000  00 

Balance  of  corpus  in  hands  of  trustee $9,000  00 

As  to  Income. 

This  accountant  charges  himself  with   $3,000  00 

This  accountant  prays  allowance  for 2,500  00 


Balance  of  income  in  the  hands  of  trustee  .  .  .  500  00 

Your  petitioner  therefore  prays  that  said  account  may  be 
allowed,  and  also  for  the  allowance  of  commissions  and  counsel 
fees. 

Dated  Newark,  N.  J.,  Wieliam  Doe. 
,  ,  i9-.-. 


State  oe  New  Jersey, 
County  oe  Essex. 


■'} 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this^ 

''  Vj      ^,  °  tvt'  "  T  "  1" '  r  " '  ^  William  Doe. 

19..,  at  Newark,  N.  J.,  before 

me, 

E.  C.  G., 

Notary  Public  of  N.  J. 


ACCOUXTINX.  II93 

Form  227.     Petition  on  Trustee's  Second  and  Subsequent  Account- 
ings. 
[See  Orphans'  Court  Rule  19,  page  634,  supra. 1 

EssKx  CouxTv  ()ri'1iaxs'  Court. 
In   the   matter  of   the   estate  of 


^  ,      „         ,  ,  ,  ^..  accountins:. 

lohn  Doe,  deceased. 


I  On 


Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  \\illiam  Doe.  of  the   of   

in  the  County  of and  State  of   respectfully 

shows  as  follows : 

1.  Your  petitioner  is  the  trustee  under  tiie  last  will  and 
testament  of  John  Doe,  deceased,  and  herewith  presents  his 
account  of  his  administration  of  the  aforesaid  estate. 

2.  The  names  and  addresses  of  all  persons  interested  in  said 
accounting  are  as  follows :    Henry  Doe,  of  full  age,  a  brother 

of  testator,  who  resides  at  Number  .  .  .  ., Street,  in 

the  City  of ,  in  the  County  of   and  State  of 

;    Mary  Williams,  of  full  age,  a  sister  of  testator. 

who  resides  at  Number   .  . .  . ,   Street  in  the  City  of 

,  in  the  County  of and  State  of ;  Alary 

Jones,  a  minor  of  the  age  of  sixteen  years>  the  daughter  of 
Eliza  Jones,  a  deceased  daughter  of  the  said  John  Doe,  de- 
ceased and  who  resides  with  her  father,  Henry  Jones,  at  Num- 
ber  .  .  .  . ,    Street,  in  the  City  of    ,  in  the 

County  of    and  State  of   ;    no  guardian  has 

been  appointed  for  the  said  Mary  Jones,  so  far  as  your  peti- 
tioner has  been  informed. 

3.  The  following  is  a  summary  of  his  aforesaid  account: 

As  to  Corpus. 

Accountant  charges  himself  as  follows: 
Balance  in  the  hands  of  trustee  as  shown  1)_\-  his  last 

previous  accounting $9,000  00 

Amount    received    during   i)eriod    co\ercd    by    this 

account    5,ooo  00 

Total  charges $14,000  00 


1194  Probate  Law  and  Practice. 

Accouniant  prays  allcKvaiicc  as  follo-a's: 
Amount  of  disbursements  as  shown  Ijy  this  account      1,000  00 


Balance  of  corpus  in  the  hands  of  trustee   $13,000  00 

As  to  Income. 

Accountant  charges  himself  as  folloics: 
Balance  in  hands  of  trustee  as  shown  by  his  last 

previous  accounting   $     500  00 

Amount  received  during  period  covered  l^y  this  ac- 
counting           3,000  00 


Total  charges .,, . ...- $3,500  00 

Accountant  prays  alloivance  as  follows: 
Amount  of  disbursements  as  shown  by  said  account      3,000  00 


Balance  of  income  in  the  hands  of  trustee  .  . .        $500  00 

Your  petitioner  therefore  prays  that  said  account  may  be 
allowed,  and  also  for  the  allowance  of  commissions  and 
counsel  fees. 

Dated  Newark,  N.  J.,  William  Doe. 
, ,  I9-- 


State  of  New  Jersey, 
County  oe  Essex. 


-I 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this~ 
day  of , 

19. .  .,  at  Newark,  N.  J.,  before 
me, 

F.  R.  S., 

Notary  Public  of  N.  J. 


William  Doe. 


Accounting.  1195 

Form  228.     Petition  on  Trustee's  Account   in   Case  of   Separate 
Trust. 

[See  Orphans'  Court  Rule  19,  page  634.  supra.] 

Essex  Couxtv  Orphans'  Court. 

In   the  matter  of   the   estate  of  1   „      . 

.  ,       „  ,  ,  >  On  Accountmor. 

johix  Doe,  cleceased.  j 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex. 

The  petition  of  William  Doe,  of  the of ,  in 

the  County  of and  State  of ,  respectfully  shows 

as  follows : 

1.  Your  petitioner  is  the  trustee  under  the  last  will  and  testa- 
ment of  John  Doe.  deceased,  and  herewith  presents  his  accoiuit 
of  his  administration  of  the  aforesaid  trusts,  as  well  as  of  the 
special  trust  fund  for  the  benefit  of  Mary  Jones  created  in  and 
l)y  the  will  of  the  aforesaid  John  Doe.  deceased. 

2.  The  names  and  addresses  of  all  persons  interested  in  said 
accounting  are  as  follows :    Henry  Doe,  of  full  age,  a  lirother 

of  testator,  who  resides  at  Number Street,  in 

the of in  the  County  of and  State 

of ;    Mary  Williams,  of  full  age,  a  sister  of  testator. 

who  resides  at  Number Street,  in  the  City  of 

,  in  the  County  of   and  State  of   : 

Mary  Jones,  a  minor  of  the  age  of  sixteen  years,  the  daughter  of 
Eliza  Jones,  a  deceased  daughter  of  the  said  John  Doe.  de- 
ceased, and  who  resides  with  her  father.  Henry  Jones,  at  Num- 
ber ...'..., Street,  in  the  City  of   in  the 

County  of and  State  of ;  no  guardian  has  been 

appointed  for  the  said  Mary  Jones,  so  far  as  your  petitioner 
has  been  informed. 

3.  The  following  is  a  summary  of  his  aforesaid  accounts: 

As  to  Corpus  of  General  Trust. 

This  accountant  charges  him.self  with  .  .  .  .$10,000  00 
This  accountant  ])rays  allowance  for i.ooo  00 


Balance  of  corpus  of  general  trust $9,000  00 


1 196  Probate  Law  and  Practice. 

As  to  Income  of  General  Trust. 

This  accountant  charges  himself  with  ....   $3,000  00 
This  accountant  prays  allowance  for   ....     2,500  00 


Balance  of  income  of  general  trust $500  00 

As  to  Corpus  of  Trust  for  the 
Benefit  of  Mary  Jones. 

This  accountant  charges  himself  with  the 
amount  of  the  trust  fund  as  created  in 
and  hy  said  will   . $50,000  00 

Accountant   prays   allowance    for    no    dis- 
bursements therefrom    


Balance  of  corpus  of  trust  for  Mary  Jones .  $50,000  00 

As  to  Income  of  Trust  for  the 
Benefit  of  Mary  Jones. 

This  accountant  charges  himself  with  ....   $2,500  00 
This  accountant  prays  allowance  for   ....      2,000  00 


Balance  of  income  of  trust  for  ^Mary  Jones.      VS500  00 
Your  petitioner  therefore  prays  that  said  accounts  may  be 

allowed,  and  also  for  the  allowance  of  commissions  and  counsel 

fees. 

Dated  Newark,  N.  J.,  William  Doe. 

, ,  I9--- 

State  oe  New  Jersey, 


SKY,  I 


ss. 
County  of  Essex. 

William  Doe,  of  full  age,  being  duly  sworn  according  to  law 
upon  his  oath,  deposes  and  says  that  he  is  the  petitioner  in  the 
foregoing  petition  named  and  that  the  matters  and  things  there- 
in contained  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this  ' 

'day  of , 

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

E.  C.  G., 

Notary  Public  of  N.  J. 


William  Doe. 


ACCOUXTING.  1 197 

Form  229.    Account  of  Executor,  Administrator  or  Guardian. 

[See  Orphans'  Court  Act.  :>i.ction  114.  page  616,  supra  aiul  ib.,  section 
115,  page  616,  supra.] 

EssKx  County  Orpii.\xs'  Court. 

In   the  matter  of   the   estate  of 


T  ,      -r\        ^  J  ?  On  Accountinsr. 

lohn  Doe,  deceased. 


1 


Account. 


The  account  of  WilHam  Doe,  the  executor  of  the  last  will  and 
testament  of  John  Doe,  deceased,  shows  as  follows: 

First. 

This    accountant    charges    himself    as    follows: 

1914. 
Aug.    20.  To   amount   of   inventory   and   appraise- 
ment       $5,000  00 

Dec.       I.  To  interest  on   deposit  in    

Savings  Institution 300  00 

1915- 
Jan.       3.  Proceeds  of   sale  of  dwelling  known   as 

No St.,  Newark, 

N.  J 5,000  00 

$10,300  00 
Second. 

This  accountant  prays  allowance  as  follows: 

1914.  'V\:)ucher  No. 

July        I.   Stirrogate's    bill     for    probating 

will    I  $10  00 

July  7.  Dr.  William  Jones,  medical  at- 
tendance during  last 
illness    2  100  00 

July     10.  Mary   Smith,  nurse  during  last 

illness    3  50  00 

July      K).  Thomas     I'.rown,     Undertaker's 

Ijill    4  300  00 


1 198  Probate  Law  and  Practice. 

Aug.  5.  Surrogate's  bill  for  filing  in- 
ventory          5  3  00 

Aug.    10.  William  Young,  Appraiser  ....        6  5  00 

Aug.    10.  George  Jones,  Appraiser 7  5  00 

Aug.  20.  Henry  Williams,  groceries  furn- 
nished  decedent  during  his 

lifetime 8  30  00 

1914. 

Sept.  6.  Michael  Higgins,  ice  furnished 
decedent  during  his  life- 
time          9  20  00 

1915- 
Oct.     15.  Surrogate's  fees  on  accounting.      10  40  00 
Oct.     15.  Taxes   assessed   upon    lands   of 
decedent    during    his    life- 
time        II                 160  00 


^:>/2T,    GO 


Summary. 


This  accountant  charges  himself  with $10,300  00 

This  accountant  prays  allowance  for 723  00 


Balance $9,577  00 

Dated  Newark,  N.  J.,  *  William  Doe. 
19.  .  .  Executor. 


State  of  New  Terse\ 


;ey,  I 


County  of  Essex.       ^ 

William  Doe.  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  executor  in  the  fore- 
going account  named,  and  that  the  said  account  is  in  all  things 
just  and  true,  both  as  to  the  charges  and  discharges  thereof, 
according  to  the  best  of  his  knowledge  and  belief. 


Accounting.  i  199 


Subscribed  and  sworn  to  this"^ 


•I 


day  of 

ig  ....  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Annex  statement  of  assets  see  Form  232. 


William  Doe. 


Form  230.     Account  of  Trustee. 

[See  Orphans'  Court  .\ct.  section  114.  page  616.  supra.] 

Essex  County  Ori'm.xns'  Court. 

In  the  matter  of  the  account  of" 
the  trustee  of  the  estate  of 
John  Doe,  deceased. 

Account. 

The  account  of  William  Doe,  trustee  of  the  trusts  created  in 

and  by  the  last  will  and  testament  of  John  Doe,  late  of  the 

County  of  Essex,  deceased,  shows  as  follows : 
First — As  to  Corpus. 
This  accountant  charges  himself  as  follows: 
1914. 

July  I.  To  amount  of  corpus  of  trust  fund  as 
shown  by  the  final  account  of  the 
executor  of  the  Said  John  Doe,  de- 
ceased    $10,000  00 

Aug.      5.  To  proceeds  of  sale  of  premises  No , 

Street,    Newark,    N.    J., 

made  by  the  executor  of   the   said 

John  Doe   5,000  00 

Sept.  10.  To  interest  on  the  sum  of  $200  00,  being 
the  amount  of  an  assessment  for 
street  improvements  against  prop- 
erty   No ,     Street, 

Newark,  N.  j.,  owned  by  the  said 
testator,  from  the  payment  of  said 
assessment  to  date 24  00 


•     Total  charges $15,024  00 

77 


I200  Probate  Law  and  Practice. 

This  accountant  prays  allowance  as  follows: 

1914. 
Sept.   10.  To  amount  of  assessment  for  street  im- 
provements   against    property    No. 

, Street,  Newark,  N.  J., 

owned  by  said  testator   $200  00 


$200  00 
Summary  as  to  Corpus. 

This  accountant  charges  himself  with $15,024  00 

This  accountant  prays  allowance  for 200  00 


Balance  of  corpus  in  hands  of  trustee   $14,824  00 

Second — As  to  Income. 
This  accountant  charges  himself  as  follows: 
1914. 
Aug.      7.  Interest  on   funds  on  deposit  in    

Savings  Institution,  Newark,  N.  J.  . 
Aug.    1 1.  To  rent  of  premises  No , St., 

Newark,  N.  J 

Sept.     9.  Interest  on  mortgage  of  $5,000.00  given 

by  William  Jones  on  premises  No. 

St.,  Newark,  N.  J.  . 

Sept.   15.  To  rent  of  premises  No , St., 

Newark,  N.  J. 

Sept.  25.   Interest  on  mortgage  of  $5,000.00  given 

by  James   Smith,  on  premises   No. 

, St.,  Newark,  N.  J .  .         125  00 


$150 

00 

100 

00 

125 

00 

100 

00 

$600  00 


This  accountant  prays  allowance  as  follows: 
1914.  Voucher  No. 

Sept.     6.  To  John  Jones,  plumbing  repairs 

No ,    St., 

Newark,  N.  J i  $25  00 

Oct.     13.  Taxes    on    property    No , 

St.,      Newark, 

N.  J 2  150  00 


ACCOUXTING.  1201 

Xov.  19.  Interest  on  the  sum  of  $200  00. 
being  the  amount  of  an 
assessment  for  betterments 
by  reason  of  street  im- 
provements   at    Xo , 

St.,      Newark, 

N.  J.,  which  interest  is 
credited  to  cor})us  in  this 
account   24  00 

Dec.  13.  Cash  to  William  Doe.  on  ac- 
count of  income 3  300  00 


$499  00 


Summary  as  to  Income. 

This  accountant  charges  himself  with $600  00 

This  accountant  prays  allowance  for   499  00 


Balance  of  income  in  hands  of  trustee $101  00 

•   Dated  Newark,  N.  J.,  William  Doe, 
, ,  19.  .  .  Trustee. 

State  of  New  Jersey,  | 
County  ce  Essex.       j 

W'lLLiAM  Doe,  the  trustee  above-named,  being  duly  sworn 
according  to  law,  upon  his  oath  deposes  and  says  that  the 
above  account  is  in  all  things  just  and  true,  both  as  to  the 
charges  and  discharges  thereof,  according  to  the  l)est  of  his 
knowledge  and  belief. 


Subscribed  and  sworn  to  this 

day  of  

19  . . .,  at  Newark,  N.  J.,  before 
me, 

J.  F.  C, 

Notary  Public  of  N.  J. 

Annex  statement  of  assets  see  Fcjrm  232. 


William  Doe. 


I202  Probate  Law  and  Practice. 

Form  231.     Account  of  Trustee  in  Case  of  Special  Trust  Fund. 

[See  Orphans'  Court  Act,  section  114,  page  616.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  account  of^ 
the    trustee    of    the    estate    of  > 
John  Doe,  deceased.  J 

Account. 

The  account  of  Wilham  Doe,  trustee  of  the  trusts  created  in 

and  by  the  last  will  and  testament  of  John  Doe,  late  of  the 

County  of  Essex,  deceased,  shows  as  follows : 
First — As  to  Corpus. 
This  Accountant  Charges  Himself  as   Follows: 
1914. 

July  I.  To  amount  of  corp.us  of  trust  fund  as 
shown  by  the  final  account  of  the 
executor  of  the  said  John  Doe,  de- 
ceased   $10,000  00 

Aug.      5.  To    proceeds    of    sale    of    premises    No. 

.  .  .  . ,     Street,     Newark. 

N.    J.,    n^ade    by    the    executor    of 

the  said  John  Doe 5,000  00 

Sept.  10.  To  interest  on  the  sum  of  $200.00  being 
the  amount  of  an  assessment  for 
street  improvements  against  prop- 
erty   No ,     Street, 

Newark,  N.  J.  owned  by  the  said 
testator,  from  the  payment  of  said 
assessment  to  date   24  00 

Total  charges $LS.024  00 

The  Accountant  Prays  Allowance  as  Follows: 

1914. 
Sept.   10.  To  amount  of  assessment  for  street  im- 
provements   against    property    No. 

, Street,  Newark,  N.  J.. 

owned  by  said  testator   $200  00 

'  $200  00 


Accounting.  120,^ 

Summary  as  to  Corpus. 

This  accountant  charges  himself  witli $15,024  00 

This  accountant  ])rays  allowance  for 200  00 

Balance  of  corpus  in  hands  of  trustee $14,824  00 

Second — As  to  Income.     . 

This  Accountant   Charges   Himself  as   Follows: 
1914. 
Aug.      7.  Interest  on   funds  on  deposit  in    

Savings  Institution,  Newark^  ?^-  J  •  •         150  00 
Aug.    II.  To  rent  of  premises  No , 

St.,  Newark,  N.J 100  00 

Sept.     9.  Interest  on  mortgage  of  $5,000.00  given 

by  William  Jones  on  premises  No. 

.  . .  . , St.,  Newark,  N.  J.  .         125  00 

Sept.   15.  To  rent  of  premises  No 

St.,  Newark,  N.  J 100  00 

Sept.  25.  Interest  on  mortgage  of  $5,000.00  given 

by  James   Smitii,  on  premises   No. 

, St.,  Newark,  N.  J..  .         125  00 

$600  00 
This  Accountant  Prays  Allowance  as   Follows: 

1914-  Voucher  No. 

Sept.     6.  John    Jones,    i)lumbing    re])airs 

No ,    St., 

Newark,  N.  J i  $25  00 

Oct.     13.  Taxes   on   property   No , 

St.,  Newark,  N.  J.        2  150  00 

Nov.    19.  Interest  on  the  sum  of  $200.00 

being    the    amount    of    an 
-'  assessment  for  betterments 

by    reason    of    street    im- 
provements  at    No , 

St.,  Newark,  N.  J., 

which  interest  is  credited  to 

corpus  in  this  account.  ...        3  24  00 


I204  Probate  Law  and  Practice. 

Dec.     13.  Cash    to    William    Doe,    on    ac- 
count of  income   4  300  00 


S499  00 


Summary  as  to  Income. 

This  accountant  charges  himself  with    $600  00 

This  accountant  prays  allowance  for 499  00 


Balance  of  income  in  hands  of  trustee Sioi  00 

Third — As  to  Corpus  of  Special   Trust   Fund  for  the   Benefit  of 

Mary  Jones. 

This  accountant  charges  himself  with  the  amount  of 
said  trust  fund  as  created  in  and  by  the  last  will 
and  testament  of  John  Doe.  deceased    $50,000  00 

This  Accountant   Prays  Allowance  as   Follows: 

No    disbursements    have   been    made    from    corpus 


$50,000  00 

Fourth — As  to  Income  from  Special  Trust  Fund  for  the  Benefit  of 

Mary  Jones. 

This  Accountant  Charges  Himself  as  Follows: 

.914. 
Aug.      I.  To   interest   on   bond  and   mortgage    for 

$5,000.00  on  property  of  A.  B.  .  .  .       $250  00 
Sept.     I.  To    interest    on    bond    and    motgage    for 

$10,000.00  on  property  of  X.  Y..         500  00 

1915- 
Feb.       I.  To   interest  on   bond   and   mortgage    for 

20,000.00  on   property   of    Y.    D..      1,000  00 
Apr.       I.  To  interest  on  mortgage  for  $15,000.00 

on  property  of  Q.  R 750  00 

$2,450  00 


Account  I XG.  1205 

This  Accountant  prays  allowance  as  follows: 

1914. 
Aug.    II.  Cash  paid  to  Martlia  Jones,  guardian  of 

Alary  Jones   $150  00 

Sept.     3.  Cash  paid  to  Alartha  Jones,  guardian  of 

Alary  Jones   400  00 

1915- 
Feb.       5.  Cash  paid  to  Alartha  Jones,  guardian  of 

Alary  Jones   900  00 

Apr.      2.  Cash  paid  to  Alartha  Jones,  guardian  of 

Alary  Jones  650  00 


$2,100  00 


Summary  as  to  Special  Trust  Fund  for  Mary  Jones. 
As  to  Corpus. 

This  accountant  charges  himself  with $50,000  00 

This  accountant  prays  allowance  for   000  00 


Balance  of  corpus  of  special  trust   $50,000  00 

As  to  Income. 

This  accountant  charges  himself  with    $2,450  00 

This  accountant  prays  allowance  for 2,100  00 


Balance  of  income  of  special  trust $350  00 

Dated  Newark,  N.  J.,  Wili,l\m  Doe. 
, ,  19.  . .  Trustee. 

State  of  New  Jersey,  ) 
County  or  Essex.       j' 

William  Doe,  the  trustee  above  named,  being  duly  sworn  ac- 
cording to  law  upon  his  oath,  deposes  and  says  that  the  above 
account  is  in  all  things  just  and  true,  both  as  to  the  charges  and 


i2o6  Probate  Law  and  Practice. 

discharges  thereof,  according  to  the  best  of  his  knowledge  and 
belief. 


Subscribed  and  sworn  to  this" 
day  of , 

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 
Annex  statement  of  assets  ;   see  Form  232. 


William  Doe. 


Form  232.     Statement  o£  Assets  to  be  Annexed  to  all  Accounts. 

[See  Orphans'  Court  Rule  21,  page  636,  supra.] 

The  following  is  a  full  statement,  or  list,  of  the  securities, 
investments  and  assets  of  which  the  balance  of  the  aforesaid 
estate  of  John  Doe,  deceased,  in  the  hands  of  said  Willian 
Doe,  executor  as  aforesaid,  consists,  and  a  statement  of  ah 
changes  made  in  the  securities  of  the  said  estate  since  the  filing 
of  the  Inventory  (or  since  the  last  accounting)  : 

Securities  Now  in  the  Hands  of  Accountant. 

Bond  and   mortgage   given   by    William   Jones,   on 

premises  No ,   Street,  Newark, 

N.  J c^5,ooo  00 

Bond    and    mortgage    given    by    James    Smith,    on 

premises  No , .    Street,  Newark, 

N.  J 3,000  00 

Cash  on  deposit  in National  Bank 300  00 


$8,300  GO 

The  Following  Changes  in  the  In\cstments  Have  Been  Made  by 
Accountant     Since     the     Filing     of    the     Inventory     (or    Last 
'  Account). 

Bond  and  mortgage  of  James  Brown  for  $5,000.00  on  premises 

No ,   Street,  Newark,  N.  J.,  was  paid  on  the 

day  of    ,   19.  . .,  by  the  said  mortgagor  and 

the  proceeds  thereof  have  been  reinvested  by  loaning  the  same 
to  William  Jones  on  his  bond  and  mortgage  for  $5,000.00  on 

premises  No , Street,  Newark,  N.  J. 

Dated  Newark,  N.  J.,  William  Doe, 

. . . , ,  19 . . .  Executor. 


Accounting.  1207 

Form  233.    Exceptions  to  Account. 

[See  Orphans'  Court  Act.  section  126.  page  36.  supra,  and  Orphans" 
Court  Rule  20.  page  663,  supra.  J 

Essex  County  Orphans'  Court. 


In   the  matter  of   the  estate 
John  Doe,  deceased. 

Bxceptio>is 


I  On  Exceptions  to  Account. 


James  Doe,  one  of  the  children  and  next  of  kin  of  John  Doe, 
late  of  the  County  of  Essex,  deceased,  hereby  excepts  to  the 
account  of  William  Doe,  administrator  of  the  estate  of  John 
Doe,  deceased,  for  the  following  reasons : 

First :  The  said  accountant  has  not  charged  himself  with  the 

sum  of  five  hundred  dollars  on  deposit  in  the    

Savings  Institution  to  the  credit  of  "John  Doe  and  Jane  Doe, 
his  wHq,  either  to  draw,  survivor  to  take,"  which  said  sum  was 
the  property  of  the  said  John  Doe  and  constitutes  assets  of  his 
estate. 

Second:  The  said  accountant  has  not  charged  himself 
with  the  proceeds  of  a  certain  life  insurance  policy  issued  by 

the    Life   Insurance   Company   for  five  thousand 

dollars,  which  policy  constitutes  a  portion  of  the  estate  of 
the  said  John  Doe,  deceased. 

Third :  Accountant  prays  allowance  for  the  sum  of  one  hun- 
dred and  fifty  dollars  expended  by  him  in  the  payment  of  taxes 
assessed  upon  certain  real  estate  owned  by  said  intestate, 
whereas  said  taxes  were  not  assessed  until  after  the  death  of 
decedent  and  were  therefore  not  a  charge  against  his  personal 
estate. 

Dated  Newark,  N.  J.,  James  Doe. 
, ,  i9--- 


Form  234.     Decree  on  Account  of  Executor  or  Administrator,  or 
on   Guardian's   Final   Account. 
[See  Orphans'  Court  Act,  section  125,  page  647,  supra.] 

Essex  County  Orphans'  Court. 


i2o8  Probate  Law  and  Practice. 

In  the  matter  of  the  account  oi~^ 
the    executor    of    John    Doe,  y 
deceased.  J 

Decree  Allozving  Account 

The  Surrogate  having  audited  and  stated  the  final  account  of 
William  Doe,  the  executor  of  the  last  will  and  testament  of 
John  Doe,  deceased,  and  placed  the  same  on  the  files  of  his 

office  twenty  days  previous  to  the    day  of    , 

A.  D.,  19...,  and  having  on  the  day  last  aforesaid  reported 
the  same  to  this  court  for  allowance  and  settlement,  and  it 
having  been  proved  to  the  satisfaction  of  the  court  that  notice 

of  his  intention  to  settle  the  said  account  on  said day  of 

,  A.  D.,  19.  .  . ,  in  this  court  was  given  by  said  account- 
ant according  to  law ; 

And  the  court  having  examined  the  said  account  and  the 
vouchers  and  receipts  for  payments  and  disbursements  claimed 
therein,  and  having  found  the  same  to  be  correct  in  all  i)articu- 
lars,  and  no  exceptions  being  made  thereto. 

It  is  on  this day  of   ,  A.  D.,  one  thousand 

nine  hundred  and ,  ordered,  adjudged  and  decreed,  that 

the  said  account  be  in  all  things  allowed  as  reported,  and  that 
there  is  a  balance  remaining  in  the  hands  of  said  accountant 
amounting  to  the  sum  of dollars  to  be  disposed  of  ac- 
cording to  law. 

It  is  further  ordered  that  from  the  aforesaid  balance  the  said 

accountant  be  allowed  the  sum  of dollars  as  and  for 

his  commissions,  and  that  a  counsel  fee  of    dollars 

be  allowed  to ,  proctor  for  said  accountant. 

W.  P.  M.. 

Judge. 


Form  235.    Decree  on  Guardian's  Intermediate  Account. 

[See  Orphans"  Court  Act,  section  124,  page  649,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  intermediate'] 
account    of    the    guardian    of  ^ 
John  Doe.  a  minor.  J 

Decree   AUowinci   Account. 


Accounting.  1209 

The  surrogate  having  audited  and  stated  the  intermediate 
account  of  W'ilHani  Doe,  the  guardian  of  John  Doe,  a  minor, 
and  placed  the  same  on  the  files  of  his  office  twenty  days  prev- 
ious to  the day  of ,  A.D.,  one  thousand  nine 

hundred  and    ,  and  having  on  the  day  last  aforesaid 

reported  the  same  to  this  court  for  allowance  and  settlement, 
and  it  having  been  proved  to  the  satisfaction  of  the  court  that 

notice  of  his  intention  to  settle  the  said  account  on  the 

day  of  A.D.,  one  thousand  nine  hundred  and 

in  this  court  was  given  by  said  accountant  according  to  law ; 

And  the  said  account  having  been  examined  by  the  court  and 
being  found  to  be  properly  and  fairly  stated,  and  the  items 
thereof  to  be  supported  and  justified  by  the  vouchers,  and  no 
exceptions  being  made  thereto. 

It  is,  on  this day  of ,  A.  D.,  nineteen  hun- 
dred and ordered,  adjudged  and  decreed  that  the  said 

account  be  entered  of  record. 

It  is  further  ordered  that  the  said  accountant  be  allowed  the 

sum  of   dollars  on  account  of  his  commissions,  and 

that  a  counsel  fee  of dollars  be  allowed  to , 

proctor  for  said  accountant. 

W.  P.  .M., 

Judge. 


Form  236.     Decree  on  Trustee's  Account. 

[See  Orphans'  Court  Act.  section  125.  page  647.  su])ra. | 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  account  of^ 
the     trustee     of     John     Doe,  v 
deceased.  J 

Decree  Alloiving  Account. 

The  surrogate  having  audited  and  stated  the  account  of  Wil- 
liam Doe,  the  trustee  under  the  last  will  and  testament  of  John 
Doe,  deceased,  and  ]>laced  the  same  on  the  files  of  his  office 

twenty  days  previous  to  the   day  of   .A.  D.. 

19.  .  .,  and  having  on  the  day  last  aforesaid  reported  the  same 
to  this  court  idr  allowanre  and  settlement,  and  it  having  been 


I2IO  Probate  Law  and  Practice. 

proved  to  the  satisfaction  of  the  court  that  notice  of  his  inten- 
tion to  settle  the  said  accounts  on  said day  of , 

A.  D.,  19. . .,  in  this  court  was  given  by  said  accountant  accord- 
ing to  law. 

And  the  court  having  examined  the  said  accounts  and  the 
vouchers  and  receipts  for  payments  and  disbursements  claimed 
therein,  and  having  found  the  same  to  be  correct  in  all  particu- 
lars, and  no  exceptions  being  made  thereto. 

It  is  on  this day  of ,  A.  D.,  nineteen  hundred 

and  ,  ordered,  adjudged  and  decreed  that  the  said  ac- 
count be  in  all  things  allowed  as  reported,  and  that  there  is  a 

balance  of  corpus  amounting  to  the  sum  of   dollars, 

and  a  balance  of  income  amounting  to  the  sum  of    

dollars  remaining  in  the  hands  of  said  accountant  to  be  disposed 
of  according  to  law. 

It  is  further  ordered  that  the  said  accountant  be  allowed  the 

sum  of dollars  as  and  for  his  commissions  on  the  sum 

of dollars  of  income  collected  by  him,  and  that  said 

accountant  be  allowed  the  further  sum  of dollars  as 

and  for  his  commissions  on  the  corpus  of  said  estate,  and  that 

a  counsel  fee  of    dollars  be  allowed  to    , 

proctor  for  said  accountant. 

W.  P.  M., 

Judge. 


Form   237.      Decree    on    Trustee's    Accounts    in    Case    of    Special 
Trust. 

[See  Orphans'  Court  Act,  section  125,  page  647,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  accounts  of"^ 
the     trustee     of     John     Doe,  y 
deceased.  J 

Decree  Allozving  Accounts. 

The  surrogate  having  audited  and  stated  the  accounts  of 
William  Doe,  the  trustee  under  the  last  will  and  testament  of 
John  Doe,  deceased,  and  placed  the  same  on  the  files  of  his 
office  twenty  days  previous  to  the    day  of    , 


ACCOUNTINC.  121  I 

A.  D..  19.  .  .,  and  having  on  the  day  last  aforesaid  reported  the 
same  to  this  court  for  allowance  and  settlement  and  it  having 
been  proved  to  the  satisfaction  of  the  court  that  notice  of  his 

intention  to   settle  the   said  accounts  on   said    day  of 

A.  D.,  19.  .  . ,  in  this  court  was  given  hv  said  account- 
ant according  to  law. 

And  the  court  having  examined  the  said  accounts  and  the 
vouchers  and  receipts  for  payments  and  disbursements  claimed 
therein,  and  having  found  the  same  to  be  correct  in  all  particu- 
lars, and  no  exceptions  being  made  thereto. 

It  on  this day  of ,  A.  D..  nineteen  hundred 

and ordered,  adjudged  and  decreed  that  the  account  of 

the  aforesaid  trustee  of  the  principal  trust  created  in  and  bv 
the  will  of  the  said  John  Doe.  deceased,  be  in  all  things  allowed 
as  reported,  and  that  there  is  a  balance  of  corpus  amounting  to 
the  sum  of dollars,  and  a  balance  of  income  amount- 
ing to  the  sum  of dollars  remaining  in  the  hands  of  said 

accountant  to  be  disposed  of  according  to  law. 

It  is  further  ordered  that  the  said  accountant  be  allowed  the 

snm  of dollars  as  and  for  his  commissions  on  the  sum 

of dollars  of  income  collected  by  him,  and  that  said 

accountant  be  allowed  the  further  sum  of dollars  as 

and  for  his  commissions  on  the  corpus  of  said  estate. 

It  is  further  ordered  that  the  account  of  the  aforesaid  trustee 
of  the  special  trust  created  for  the  benefit  of  Mary  Jones  be  in 
all  things  allowed  as  reported  and  that  there  is  a  balance  of 

corpus  amounting  to  the  sum  of dollars  and  a  balance 

of  income  amounting  to  the  sum  of dollars  remaining 

in  the  hands  of  said  accountant  to  be  dis])ose(l  of  according  to 
law. 

And  it  is  further  ordered  that  the  said  accountant  be  allowed 
the  sum  of  ....  dollars  as  and  for  his  commissions  on  the  sum 
of  ....  dcjllars  of  income  of  said  special  trust  fund  collected 
by  him  and  that  the  said  accountant  be  allowed  the   further 

sum  of    dollars  as  and   for  his  commissions  on  the 

corpus  of  said  si)ecial  trust  fund  and  that  a  counsel  fee  of  .... 

dollars  be  allowed  to proctor  for  said  accountant. 

\V.  P.  AT.. 
Judge. 


I2I2  Probate  Law  and  Practice;. 

Form  238.  Interlocutory  Decree  on  Accounting  Where  Balance  is 
Due  Accountant. 

[See  Orphans'  Court  Act.  section  125,  page  647.  supra.] 

Essex  County  Orphans'  Court. 
Term  A.  D.,  19. .  . 

In  the  matter  of  the  final  account^ 
of  the  administrator  of  John  ^ 
Doe,  deceased.  J 

Interlocutory    Decree 
on  Account. 

The  surrogate  having  audited  and  stated  the  final  account 
of  William  Doe,  the  administrator  of  the  estate  of  John  Doe, 
deceased,  and  placed  the  same  on  the  files  of  his  office  twenty 

days  previous  to  the day  of  A.  D.,  19.  .  .,  and  having 

on  the  day  last  aforesaid  reported  the  same  to  this  court  for 
allowance  and  settlement,  and  it  having  been  proved  to  the 
satisfaction  of  the  court  that  notice  of  his  intention  to  settle  the 

said  account  on  the  said  ....  day  of A.D.,  19.  .,  in  this 

court  was  given  by  said  accountant  according  to  law  and  the 
court  having  examined  the  said  account  and  the  vouchers  and 
receipts  for  payments  and  disbtu"sements  claimed  therein,  and 
having  found  the  same  to  be  correct  in  all  particulars. 

And  it  appearing  by  said  account  as  reported  for  settlement 
that  the  said  accountant  claims  there  is  a  balance  due  him  to 
the  amount  of dollars. 

It  is  on  this day  of A.  D.,  one  thousand  nine 

himdred  and    in   the   Term  of    ,    19.  .  .  .    of 

the  Orphans'  Court  of  the  County  of  Essex,  in  the  State  of 
New  Jersey,  ordered,  adjudged  and  decreed  that  the  further 

consideration  of  said  account  be  continued  tmtil  the    

day  of ,  19.  .  .,  in  the  term  of ,  19.  .  .  . 

W.  P.  M., 
Judge. 


Accounting.  1213 

Form   239.      Final    Decree    on    Account    Where    Balance    is    Due 
Accountant. 

[See  Orphans'  Court  Act.  section  125.  page  647,  supra.] 

Essex  County  Orph.^ns'  Court. 
Term.  A.  D..  19... 

In  the  matter  of  the  final  account^ 
of  the  administrator  of  John  > 
Doe,  deceased.  J 

Filial  Decree  on  Account. 

William  Doe,  the  administrator  of  the  estate  of  John  Doe, 

deceased,  having  on  the day  of ,  A.  D.,  19.  . . , 

in  the  Term  of ,  19.  .  .,  presented  his  account  as  such 

administrator  to  this  court  for  allowance,  and  it  appearing  that 
there  was  a  balance  due  the  accountant  and  that  by  an  order 

of  this  court  made  on  the day  of  19.  •  • ,  the 

further  consideration  of  the  said  account  was  continued  until 

the day  of ,  19. . . ,  in  the  Term  of 

19.  . .,  and  now  on  the  day  last  aforesaid  the  surrogate  having 
reported  the  same  to  this  court  for  allowance  and  no  exception 
being  made  thereto. 

It  is  on  this day  of 19.  .  . ,  in  the  term  of 

,  19. . . ,  ORDERED,  ADJUDGED  and  DECREED  that  the  said 

account  be  in  all  things  allowed  as  reported  and  that  there  is  a 

balance  due  the  said  accountant  amounting  to  the  sum  of 

dollars.  W.  P.  M.. 

Judge. 


Form    240.      Decree    Allowing    Account    and    Adjudicating    upon 
Exceptions. 

[See  Orphans'  Court  Act,  section  125.  page  647.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  account  of^ 
the     trustee     of     John     Doe,  > 
deceased.  J 

Decree  Alloiving  Account 
and  Adjudicating  upon 
Exceptions. 


12 14  Probate  Law  and  Practice. 

The  surrogate  having  audited  and  stated  the  account  of 
William  Doe,  the  trustee  under  the  last  will  and  testament  of 
John  Doe,  deceased,  and  placed  the  same  on  the  files  of  his 

ofihce  twenty  days  previous  to  the    day  of    

A.  D.,  19...,  and  having  on  the  day  last  aforesaid  reported 
the  same  to  this  court  for  allowance  and  settlement,  and  it 
having  been  proved  to  the  satisfaction  of  the  court  that  notice 

of  his  intention  to  settle  his  said  account  on  the  said   

day  of ,  19.  .  .,  was  given  by  said  accountant  accord- 
ing to  law. 

And  exceptions  having  been  hied  to  said  account  by  James 
Doe,  one  of  the  children  of  John  Doe,  deceased,  and  the  proofs 
and  allegations  of  the  parties  having  been  heard  and  con- 
sidered by  the  court. 

It  is  on  this day  of ,  A.  D.,  one  thousand 

nine  hundred  and ,  ordered,  adjudged  and  decreed  that 

the  exception  first  submitted  be  allowed  and  that  said  account- 
ant l)e  surcharged  with  the  sum  of  five  hundred  dollars  on 

deposit  in  the   Savings   Institution  to  the  credit  of 

John  Doe,  and  Jane  Doe,  his  wife ;  that  the  exception 
secondly  submitted  be  and  the  same  hereby  is  overruled ;  and 
that  the  exception  thirdly  submitted  be  and  the  same  is  hereby 
allowed  and  the  sum  of  one  hundred  and  fifty  dollars  prayed 
allowance  as  paid  out  of  income  for  a  betterment  be  stricken 
therefrom  and  the  same  charged  against  the  corpus  of  the 
estate,  and  that  the  interest  on  said  sum  of  one  hundred  and 
fifty  dollars  from  the  date  of  its  payment  to  the  date  of  said 
accounting  be  charged  against  the  income  of  the  said  estate  and 
also  credited  to  the  corpus. 

And  the  court  having  examined  the  said  account  and  the 
vouchers  and  receipts  for  payments  and  disbursements  claimed 
therein,  and  having  found  the  same  to  be  otherwise  correct  in 
all  particulars. 

It  is  on  this day  of   ,  A.  D..  one  thousand 

nine   hundred   and    ordered,   adjudged  and   decreed. 

that  the  said  account  be  amended  in  accordance  with  the  fore- 
going and  that  as  so  amended  the  said  account  be  allowed,  and 
that  there  is  a  balance  of  corpus  amounting  to  the  sum  of 
dollars,  and  a  balance  of  income  amounting  to  the 


ACCOUNTIXC.  12 15 

sum   of    dollars,    remaining    in    the    hands    of    said 

accountant  to  he  disposed  of  according  to  law. 

And  it  is  further  ordered  that  the  said  accountant  he  allowed 

the  sum  of dollars  as  and  for  his  commissions  on  the 

sum  of dollars  of  income  collected  hy  him  and  that 

he  he  allowed  the  further  sum  of dollars  as  and  for 

his  commissions  on  the  corpus  of  said  estate  and  that  a  counsel 

fee  of   dollars  be  allowed  to   proctor  for 

said   accountant   and   a   counsel    fee   of    dollars   be 

allowed  to   ,  counsel  for  exceptant. 

W.  P.  At., 

Tudge. 


Form    241.      Decree    Allowing    Account    and    Ordering    Distri- 
bution of   Estate. 

[See    Orphans'    Court    Act.    section    125.    page   647,    supra:     and    ih.. 
section  168,  page  716,  supra.] 

Essex  Countv  Ori'hans'  Court. 

In  the  matter  of  the  account  of  ^ 
the     administrator     of     John  K- 
Doe,  deceased.  J 

Decree      AUoiving      .Iccount 
and  Ordering  Distrihittion. 

The  surrogate  having  audited  and  stated  the  hnal  account 

.of   William   Doe,   administrator   of   tiie   estate   of   John   Doe, 

deceased,  and  placed  the  same  on  the  files  of  his  office  twenty 

days   previous   to   the    day   of    19....   and 

having  on  the  day  last  aforesaid  reported  the  same  to  this 
court  for  allowance  and  settlement,  and  it  having  been  proved 
that  notice  of  the  intention  of  the  said  administrator  to  settle 

his  said  account  on  the   day  of    19.  . .,  has 

been  duly  given  according  to  law,  and  the  court  having 
examined  the  said  account  and  the  vouchers  ;uid  receipts  for 
payments  and  disbursements  claimed  therein,  and  having 
found  the  same  to  be  correct  in  all  respects,  and  no  exceptions 
being  made  thereto. 
78 


I2i6  Probate  Law  and  Practice. 

It  is  on  this  day  of  19.  •  -,  ordered,  ad- 
judged and  decreed  that  the  said  account  be  in  all  things 
allowed  as  stated  and  that  there  is  a  balance  remaining  in  the 

hands  of  said  accountant  amounting  to  the  sum  of    

dollars  to  be  distributed  according  to  law,  and  it  is  further 
ordered  that  from  the  aforesaid  balance  the  said  accountant 
be  allowed  the  sum  of  dollars,  as  and  for  his  com- 
missions, and  that  a  counsel  fee  of dollars  be  allowed 

to proctor  for  said  accountant. 

And  it  having  been  proven  to  the  satisfaction  of  the  court 
that  the  said  John  Doe,  deceased,  left  him  surviving  a  widow, 
Jane  Doe,  and  two  children,  William  Doe  and  James  Doe, 
as  his  only  next  of  kin. 

It  is  further  ordered  that  the  aforesaid  sum  of    

dollars,  after  deducting  therefrom  the  amount  of  commissions 
and  counsel  fees  hereinbefore  allowed,  be  distributed  and 
paid  to  the  aforesaid  widow  and  next  of  kin  of  the  said  John 
Doe,  deceased,  as  follows:  to  the  said  Jane  Doe,  widow  of  said 
intestate,  one-third  part  thereof ;  to  the  said  \\'illiam  Doe 
a  son  of  said  intestate,  one-third  part  thereof  and  to  the  said 
James  Doe,  a  son  of  said  intestate,  one-third  part  thereof. 

W.  P.  M., 

Judge. 

For  form  of  proof  of  persons  entitled  to  distributive  shares, 
see  Form  259. 


PROCEEDINGS  TO  REQUIRE  EXECUTOR  TO 
ACCOUNT  WITH  CO-EXECUTOR. 

Form  242.     Petition  of  Executor  for  Order  Requiring  Co-Execu- 
tor to  Account  With  Him. 

[See  Orphans'  Court  Act.  section  138,  page  422,  supra.] 

Essex  County  Orphans'  Court. 

T      .,  ,,  r   ^1  ^  ^       i:~^   0»  Application  of  Execu- 

In  the  matter  of  the  estate  of  If      .      ^    ^ 

T  1      r->        J  J  >tor  to  Require  Co-Execulor 

John  Doe,  deceased.  f        .  ^ 

J  to  Account. 

Petition. 


Accounting.  1217 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  Wilham  Doe,  of  the of   in 

the  County  of   and  State  of  Xew  jersey,  respect fullv 

shows  that : 

1.  John  Doe,  late  of  the  County  of  Essex,  deceased,  died  on 

the    day  of    19 leaving  a  last  will  and 

testament  wherein  and  wherehy  he  nominated  and  appointed 
James  Smith  and  your  petitioner  the  executors  thereof  ;    and 

on  the day  of    19 the  said  will  was  duly 

admitted  to  probate  by  the  Surrogate  of  the  County  of  Essex, 
and  letters  testamentary  thereon  issued  to  the  said  James 
Smith  and  your  petitioner,  the  executors  therein  named,  who 
thereupon  proceeded  to  administer  the  trusts  created  in  and  bv 
the  said  will. 

2.  A  portion  of  the  estate  of  the  said  John  Doe,  deceased, 
consists  of  certain  real  estate  situate  in  the  City  of  Newark 
in  the  County  of  Essex,  aforesaid,  upon  which  are  erected 
thirteen  dwelling  houses,  all  occupied  by  tenants,  and  requiring 
constant  care  and  attention. 

3.  Your  petitioner  is  engaged  in  business  in  the  City  of 
Xew  York,  and  therefore  was  unable  to  give  the  aforesaid 
real  estate  of  the  said  John  Doe,  deceased,  the  care  and 
attention  which  it  deserved,  and  entered  into  an  arrangement 
with  James  Smith,  his  co-executor  as  aforesaid,  v,-ho  resides 
in  the  City  of  Newark,  whereby  the  latter  undertook  to  care 
for  the  aforesaid  real  estate. 

4.  The  said  James  Smith  has  been  collecting  the  rents 
from  the  aforesaid  real  estate  and  paying  annual  charges 
thereon  and  the  expenses  of  repairing  the  same,  but  has 
refused  and  neglected  to  account  for  the  sums  so  received  and 
disbursed  by  him  as  aforesaid,  or  to  give  your  petitioner  anv 
information  in  regard  to  the  same. 

Your  petitioner  therefore  prays  that  this  court  may  order 
and  direct  the  said  James  Smith,  your  petitioner's  co-executor, 
as  aforesaid,  to  account  with  him  for  all  assets  which  have  come 
into  his  hands  as  such  executor. 
Dated  Newark,  N.  J.,  Wii.i.i.xm    Doic. 

T9... 

Statk  ok  New  Jerskv,  I 

County  of  Essex.       j      ' 

William  Doe,  being  duly  sworn  upon  his  nath  according  to 


I2i8  Probate  Law  and  Practice. 

law  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  tliis" 
day  of    

19.  .  .,  before  me, 
J.  C.  F.. 

Notary  Public  of  N.   ]. 


Form    243.     Order    to    Show    Cause    Why    Executor    Should    Not 
Account  to  His  Co-Executor. 

Essex  County  ORriiANs"  Court. 

[See  Orphans'  Court  Act.  section  138,  page  422.  supra.] 

T      ^,  ^^          r  ^x  ^  ^       t~]  On  Application  of  Execu- 

in   the   matter  of   the   estate  of  '          .       ^    ^^ 

T  ,      TA        J  J  ytor  to   Require   Co-Execu- 

John  Doe,  deceased.  (  .      ^ 

J  tor  to  Account. 

Rule  to  SIiow  Cause. 

William  Doe,  of  the of in  the  County  of 

and  State  of liaving  presented  his  petition 

herein  alleging  that  James  Smith,  co-executor  with  him  of  the 
estate  of  John  Doe,  deceased,  has  been  collecting  funds  of  the 
estate  of  the  said  John  Doe,  deceased,  and  has  refused  to  ac- 
count therefor,  or  to  give  the  said  William  Doe  any  informa- 
tion in  regard  to  the  same,  and  praying  that  this  court  may 
order  the  said  James  Smith  to  account  with  the  said  William 
Doe,  his  co-executor  as  aforesaid,  for  all  assets  which  have 
come  to  his  hands  as  such  executor. 

It  is  thereupon,  on  this day  of 19.  . ..  or- 
dered that  the  aforesaid  James  Smith  show  cause  before  this 

court  on  the   day  of   I9-  •  • ,  why  he  should 

not  accoimt  with  William  Doe,  his  co-executor,  for  all  assets 
which  have  come  to  his  iiands  as  executor  under  the  last  will 
and  testament  of  John  Doe,  deceased. 

It  is  further  ordered  that  a  true  but  uncertified  copy  of  this 
order  be  served  upon  the  said  James  Smith  within  ....  days 
from  the  date  hereof,  personally  or  by  leaving  the  same  at  his 


ACCOUNTINI"..  I21Q 

residence  or  usual  place  of  abode  with  a  person  abo\e  the  age 
of  fourteen  years. 

W.  P.  M., 
Judge. 
For  proof  of  service,  see  Form  38. 


Form   244.     Order    Requiring    Executor    to   Account   with    Co-Ex- 
ecutor. 

[See  Orphans"  Court  Act.  sectiim  138,  page  422.  supra.] 

Es.sEx  County  Okimi.ans'  Court. 


T       ,  .         .-     1  .0  (^"  Ap])hcation  of  Execu- 

In   the   matter  ot   the   estate  ot  '  .       „     ^ 

T  1      T^         ,  i  vtor  to   Kefunre   Co-E.xecu- 

|ohn  Doe,  deceased.  [  ^ 

J  tor  to  Account. 

Order  Rcqniriiuj  Executor 
to  Account  IVith  Co- 
E.vecutor. 

This  matter  being  opened  to  the  court  l\v proctor 

for  petitioner,  and  it  appearing  that  William  Doe.  one  of  the 
executors  of  the  last  will  and  testament  of  John  Doe,  de- 
ceased, has  duly  filed  his  petition  herein  alleging  that  James 
Smith,  his  co-executor,  has  collected  assets  of  the  estate  of 
the  said  John  Doe,  deceased,  and  refused  and  neglected  to 
account  therefor,  or  to  advise  the  said  William  Doe,  his  co- 
executor,  as  aforesaid,  in  regard  thereto,  and  the  rule  to 
show  cause  made  herein  having  been  duly  served,  and  the 
matter  now  coming  on  to  be  heard,  and  the  court  being  satis- 
fied that  the  allegations  in  petitioner's  said  petition  are  true 
and  that  sufficient  reasons  exist  why  the  said  James  Smith 
should  account  with  William  Doe,  his  co-executor  as  afore- 
said. 

It  is  thereupon,  on  this  ....  day  of ,  19.  .  .,  ordered, 

adjudged  and  decreed  that  James  Smith,  one  of  the  executors 
of  the  last  will  and  testament  of  John  Doe,  deceased,  account 
with  William  Doe,  his  co-executor,  for  all  as.sets  which  have 
come  to  his  hands  as  executor  of  the  last  will  and  testament  of 

John  Doe,  deceased,  on  or  before  the day  of  

19.... 


1220  Probate  Law  and  Practice. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy 
of  this  order  be  served  upon  the  said  James  Smith  within  .... 
days  from  the  date  hereof,  personally  or  by  leaving  the  same 
at  his  residence  or  usual  place  of  abode  with  a  person  above 
the  age  of  fourteen  vears. 

W.  P.  M., 
Judge. 
For  form  of  proof  of  service  see  Form  38. 


PROCEEDINGS  TO  COMPEL  EXECUTOR  OR  AD- 
MINISTRATOR  TO   ACCOUNT. 

I.       WHERE     EXECUTOR,     ETC.,     FAILS     TO     ACCOUNT 
WITHIN  ONE  YEAR. 

Form    245.     Petition    Requesting    Surrogate    to    Cite    Executor    to 
Account. 

[See  Orphans"  Court  Act.  section  116.  page  622.  supra.]  ^ 

Essex  Countv  Surrogate's  Court. 

In   the   matter  of   the   estate  of  |  On  Petition  for  Citation  to 
John  Doe,  deceased.  J  Account. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  Henry  Doe,  of  the of ,  in 

the   County   of    and    State   of    ,   respectfully 

shows  that : 

1.  Your  petitioner  is  one  of  the  children  and  next  of  kin  of 
John  Doe,  late  of  the  County  of  Essex,  deceased,  who  died  on 
the day  of 19.  .  . ,  intestate. 

2.  On  the day  of ,  19.  . ,  the  Surrogate  of 

the  County  of  Essex  duly  appointed   William  Doe  adminis- 
trator of  the  estate  of  the  said  John  Doe,  deceased. 

•  3.  William  Doe  has  failed  and  neglected  to  file  his  account 
as  administrator  of  the  estate  of  the  said  John  Doe,  deceased, 
although  more  than  one  year  has  elapsed  from  the  date  of  his 
appointment. 


Accounting.  1221 

Your  petitioner  therefore  prays  that  a  citation  may  issue  re- 
quiring the  said  William  Doe  to  account  at  the  ensuing  term 
of  the  Orphans'  Court. 

Dated  Newark,  N.  T., 


Henrv  Doe. 
,19... 


State  of  New  Jersev, 
County  of  Esse: 


ssEv,  I 


Henry  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this"^ 

,  f  ^  °  ,  \t  "  't"  L  '  r  " '  >  I-Ienrv  Doe. 

19.  .  .,  at  Newark,  N.  J-,  before 

me. 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form  246.     Citation  to  Account. 

[See  Orphans"  Court  Act.  section  116,  page  622.  supra.] 

Essex  County  Orphans'  Court. 
December  Term  191 5. 


State  of  New  Jersey, 
County  of  Essex. 


^-   I'' 


To  WiELiAM  DoK,  Administrator 
(l.  s.)  of  the  Estate  of  John  Doe, 

Deceased, 
Greeting: 

We  cite  and  command  you  that  you  render  an  account  of 
your  administration  of  the  estate  of  John  Doe,  deceased,  on 

,  the   day  of  April,   1916,  at  the  April  term 

of  this  court,  to  be  holden  in  and  for  the  County  of  Essex,  and 
luiless  you  so  do,  that  you  personally  be  and  appear  before 
this  court  on  the  day  last  aforesaid,  to  show  cause,  if  any  you 
have,  why  you  have  not  so  accounted,  and  to  abide  the  judg- 
ment of  the  court  in  the  ])remises. 


1222  Probate  Law  and  Practice. 

Witness,  W.  P.  M.,  judge  of  our  said  Orphans'  Court  at 
Newark,  aforesaid,  this  day  of  ,  one  thou- 
sand nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 
This  citation  must  be  served  In'  the  sheriiT. 


II.     WHERE   EXECUTOR   FAILS  TO  ACCOUNT  WITHIN 
TWO  YEARS. 

Form   247.     Petition   Requesting   Surrogate   to   Report   Failure   to 
Account. 

*     [See  Orphans'   Court  Act,   section   117,   page  622,   supra,  and   P.  L. 
191 1,  page  734,  page  623,  supra.] 

Essex  County  Surrogate's  Court. 

In   the   matter  of   the   estate  of  |  On  Petition  for  Citation  to 
John  Doe,  deceased.  (  Account. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  Jane  Doe,  of  the of ,  in  the 

County  of and  State  of   ,  respectfully  shows 

that : 

1.  Your  petitioner  is  the  widow  of  John  Doe,  late  of  the 

County  of  Essex,  deceased,  and  on  the day  of , 

19. .,  the  will  of  the  said  John  Doe  was  duly  admitted  to  pro- 
bate by  the  Surrogate  of  the  said  County  of  Essex,  and  let- 
ters testamentary  thereon  issued  to  William  Smith,  the  ex- 
ecutor therein  named.  Your  petitioner  is  one  of  the  legatees 
named  in  the  aforesaid  will  of  John  Doe.  deceased. 

2.  The  said  William  Smith  duly  entered  upon  his  duties  as 
such  executor,  but  has  wholly  failed  and  neglected  to  file  an 
account  of  the  estate  of  the  said  John  Doe,  deceased,  for  the 
space  of  two  years  after  his  appointment  as  such  executor. 

Your  petitioner  therefore  prays  that  the  Surrogate  may  re- 
port to  the  Orphans'  Court  the  aforesaid  neglect  of  the  said 
William  Smith,  executor  as  aforesaid,  to  file  his  account  of  the 


Accounting.  1223 

estate  of  the  said  John  Doe,  deceased,  within  the  time  liniiteci 
by  law. 

Dated  Newark,  N.  T-,  t         t^ 

Tank  Dok. 
, ,19.... 

■• 

State  of  New  Jersev,  | 
County  or  Essex.      J  ^ 

Jane  Doe.  being  chily  sworn  acct)r(ling  to  law  upon  her  oatli. 
deposes  and  says  that  she  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  tilings  contained 
therein  are  true  to  the  best  of  her  knowledge  and  belief. 

Subscribed  and  sworn  to  this"" 


day  of   , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

E.  C.  G., 

Notary  Public  of  N.  J, 


>  Jane  Doe. 


Form  248.     Report  by  Surrogate  of  Failure  to  File  Account. 

[See  Orphans'  Court  Act,  section  ii".  page  622,  supra,  and  P.  L. 
191 1,  page  734,  page  623.  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  |  On  Petition  for  Citation  to 
John  Doe,  deceased.  j  Account. 

Report  of  Surrogate  of 
Failure  of  Executor 
to  file  Account. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex,  do  hereby 
report  pursuant  to  the  request  of  Jane  Doe,  widow  of  John 
Doe,  late  of  the  Comity  of  Essex,  and  one  of  the  legatees 
named  in  the  last  will  of  the  said  John  Doe,  deceased,  that  Wil- 
liam Smith,  the  executor  of  the  last  will  and  testament  of  the 
said  John  Doe,  deceased,  has  failed  and  neglected  to  render 
an  account  of  the  estate  of  the  said  John  Doe,  deceased,  for 
the  space  of  two  years  after  his  ap])ointmcnt. 


1224  Probate  Law  and  Practice. 

Respectfully  submitted  this    day  of    ,  one 

thousand  nine  hundred  and  .... 

F.  G.  S.,  Jr., 
Surrogate. 


Form  249.     Order  of  Orphans'  Court  Directing  Surrogate  to  Issue 
Citation, 

[See   Orphans'   Court   Act.   section    117,   page  622.   supra,   and    P.   L. 
191 1,  page  734,  page  623,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  estate  of  ")  On  Petition  for  Citation  to 
John  Doe,  deceased.  (  Account. 


Order  Directing  Surrogate  to 
Cite  Executor  to  Account. 

It  appearing  from  a  report  of  F.  G.  S.,  Jr.,  Surrogate  of 
the  County  of  Essex  made  upon  the  application  of  Jane  Doe, 
widow  of  John  Doe,  late  of  the  County  of  Essex,  deceased, 
and  one  of  the  legatees  named  in  the  last  will  and  testament 
of  the  said  John  Doe,  deceased,  that  William  Smith,  the  ex- 
ecutor of  the  last  will  and  testament  of  the  said  John  Doe,  de- 
ceased, has  neglected  to  render  an  accoimt  of  the  estate  of 
the  said  decedent  for  the  space  of  two  years  after  his  appoint- 
ment, and  no  reason  appearing  or  being  alleged  to  the  contrary. 

It  is  thereupon  on  this day  of ,  19.  .  . ,  or- 
dered that  the  Surrogate  of  the  County  of  Essex  cite  the  said 
William  Smith  to  render  an  account  of  the  estate  of  the  said 
John  Doe,  deceased,  which  has  come  into  his  hands  as  such 
executor. 

W.  P.  M., 
Judge, 


Form  250.     Citation  to  Account. 

[See  Orphans'  Court  Act.  section   116,  page  622.  supra;    ib.  section 
117,  page  622,  supra,  and  ib.,  section  114,  page  622,  supra.] 

Essex  County  Orphans'  Court. 


accouxting.  1221 

State  of  New  Jersev, 


County  oF  Essex. 

TiiK  State  of  Xew  Jersey 

To  William  Doe,  Administrator 
(L.  S.)  OF  THE  Estate  of  John  Doe. 

Deceased, 
Greeting  : 

We  cite  and  command  you.  that  yon  render  an  account 
of  your  administration  of  the  estate  of  John  Doe.  deceased, 
and  unless  you  sliall  so  do.  that  you  personally  be  and  api)ear 
before  the  Orphans'  Court,  to  I)c  holden  at  the  Court  House, 
in  the  City  of  Newark,  in  and  for  the  Comity  of  Essex,  on 

the day  of 19.  . .  at  ten  o'clock  in  the 

forenoon,  to  show  cause,  if  any  you  have,  why  you  have  not 
so  accoimted.  and  to  abide  the  judgment  of  the  said  court 
in  the  premises. 

Witness.  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 
Newark  aforesaid,  this  day  of  ,  one  thou- 
sand nine  hundred  and 

F.  G.  S.,  Jr.. 
Surrogate  and  Clerk. 
This  citation  must  be  served  bv  the  sheriff. 


III.  BY  APPLICATION  TO  ORPHANS'  COURT. 

Form  251.     Petition  to  Orphans'  Court  for  Order  to  Show  Cause 
Why    Executor,    etc.,    Should    not    Account. 

[See  Orphans'  C<jurt  .\ct.  section   n^.  page  622.  supra  and  ih.  section 
117,  page  622,  supra.] 

Essex  County  Orphans'  Coltrt. 

In   the   matter   of   the   estate  of  ")  r)n  Petition  for  Citation  to 
John  Doe,  deceased.  j  Account. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  Jane  Doe,  of  the   of in  the 

County  of   and  State  of   respectfully  shows 

that : 


1226  Probate  Law  and  Practice. 

1.  Your  petitioner  is  the  widow  of  John  Doe,  late  of  the 

County  of  Essex,  deceased,  and  on  the day  of , 

19..,  the  will  of  the  said  John  Doe  was  duly  admitted  to 
probate  by  the  Surrogate  of  the  said  County  of  Essex  and 
letters  testamentary  thereon  issued  to  William  Smith,  the 
executor  therein  named.  Your  petitioner  is  one  of  the  legatees 
named  in  the  aforesaid  will  of  John  Doe,  deceased. 

2.  The  said  William  Smith  has  failed  and  neglected  to  state 
and  settle  his  account  as  executor  of  the  last  will  of  John  Doe, 
deceased,  in  the  Surrogate's  office  within  one  year,  as  required 
by  law. 

Your  petitioner  therefore  prays  that  the  said  William  Smith 
may  be  required  to  file  his  account  as  such  executor  in  man- 
ner and  form  as  required  by  law. 

Dated  Newark,  N.  j.,  .  .^ 

Jane  Doe. 
, ,  i9--- 


State  oe  New  Jersey 
County  of  Essex 


f'}- 


Jane  Doe,  being  duly  sworn  according  to  law  upon  her  oath, 
deposes  and  says  that  she  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  her  knowledge  and  belief. 


Subscribed  and  sworn  to  this 

day  of    , 

19...,  at  Newark,  N.  J.,  before 
me, 

E.  C.  G., 

Notary  Public  of  N.  J 


Jane  Doe. 


Form    252,     Order    to    Show    Cause    Why    Executor,    etc.,    Should 
Not  Account. 

[See  Orphans'  Court  Act,  section  114,  page  622,  supra  and  ib.  section 
117,  page  622,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On  Petition  for  Citation  to 
John  Doe,  deceased.  j  Account. 

Order  to  Sliow  Cause. 


ACCOUXTIXG.  1227 

Jane  Doe.  one  of  the  legatees  named  in  the  hi>t  will  and 
testament  of  John  Doe.  late  of  the  County  of  Essex,  deceased, 
having  duly  presented  her  petition  alleging  that  William  Smith, 
the  executor  of  the  last  will  and  testament  of  the  said  John 
Doe.  deceased,  has  failed  and  neglected  to  state  and  settle  his 
account  in  the  Surrogate's  office  of  the  County  of  Essex  within 
the  time  limited  therefor  by  law. 

It  is  thereupon,  on  this day  of  ,  19.  . ,  or- 
dered that  \\'illiam  Smith,  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  late  of  the  County  of  Essex,  deceased,  show 

cause  before  this  court  on  the day  of ,  19.  . .  at 

ten  o'clock  in  the  forenoon  wdiy  he  should  not  state  and  settle 
his  account  in  the  Surrogate's  office  of  the  County  of  Essex, 
as  required  by  the  statute  in  such  case  made  and  provided. 

W.  P.  M.. 

Judge. 

For  proof  of  service,  see  Form  38. 


Form   253,     Order   Directing   Executor  to   Account. 

[See  Orphans'  Court  Act,  section  114,  page  622.  supra  and  ih.  section 
117,  page  622.  supra.] 

Essex  Couxtv  Orphans'  Court. 

In   the   matter  of  the   estate   of  |  On  Petition  for  Citation  to 
John  Doe,  deceased.  j  Account. 

Order  Directing  Executor 
to  Account. 

Jane  Doe.  one  of  the  legatees  named  in  the  last  will  and 
testament  of  John  Doe,  late  of  the  Comity  of  Essex,  deceased, 
having  filed  her  petition  herein  alleging  that  William  Smith, 
the  executor  of  the  last  will  and  testament  of  John  Doe,  de- 
ceased, has  failed  to  state  and  settle  his  account  in  the  office 
of  the  Surrogate  of  the  County  of  Essex  within  the  time 
limited  by  law^  therefor,  and  the  rule  to  show  cause  made 
herein  having  been  duly  served,  and  the  matter  coming  on  to 
.l>s  heard,  and  no  reason  a])pearing  to  the  contrary. 

It  is  thereupon  on  this  day  of  19.  . ,  or- 
dered,   adiudged    and    decreed    that    William    Smith,    the    ex- 


1228  Probate  Law  and  Practice. 

editor  of  the  last  will  and  testament  of  John  Doe,  late  of  the 
County  of  Essex,  deceased,  state  and  settle  his  account  as  such 
executor  in  the  office  of  the  Surrogate  of  the  County  of  Essex, 
within  ....  days  from  the  date  hereof. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy 
of  this  order  be  served  upon  the  said  William  Smith  within 
....  days  from  the  date  hereof,  personally  or  by  leaving  the 
same  at  his  residence  or  usual  place  of  abode  with  a  person 
above  the  age  of  fourteen  years. 

W.  P.  M., 
Judge. 


APPOINTMENT  OF  TRUSTEES. 

Form  254.     Notice  of  Application  for  Appointment  of  Trustee. 

[See  Orphans"  Court  Act,  section   135,  page  296,  supra,  -nd  Orphans' 
Court  Rule  45,  page  299,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  |  On  Petition  for  Appoint- 
John  Doe,  deceased.  j  ment  of  Trustee. 

Notice  of  Application. 

To  Richard  Doe,  one  of  the  cestuis  que  trustent  of  the  trusts 
created  in  and  by  the  last  will  and  testament  of  John  Doe, 
deceased : 

You  are  hereby  notified  that  on the day  of 

19.  .  .,  at  ten  o'clock  in  the  forenoon,  I  shall  apply 

to  the  Orphans'  Court  of  the  County  of  Essex  at  the  Court 
House  in  the  City  of  Newark,  for  an  order  appointing  R.  S., 
or  some  other  suitable  person,  to  execute  the  trusts  declared 
in  the  last  will  and  testament  of  John  Doe,  late  of  the  County 
of  Essex,  deceased,  in  the  place  and  stead  of  X.  Y.,  the  trustee 
in  said  will  named,  who  has  refused  to  act  as  such  trustee  {or 
zvho  after  taking  upon  himself  the  burden  of  administering 
the  said  trust,  departed  this  life  before  fully  executing  the 
trusts  so  committed  to  him). 

Dated  Newark,  N.  T-,  -.w  -nv  ^ 

William  Doe. 

, ,  i9.-- 


Appoixtmkxt  of  Trustees.  1229 

This  notice  is  required  to  be  served  upon  resident  parties  in 
interest,  or  upon  such  of  them  as  the  court  may  direct,  five 
days  before  the  date  of  the  appHcation,  non-residents  may  be 
served  by  mail  at  least  30  days  before  the  return  day.  IMinors 
and  incompetents  are  served  by  serving  notice  on  them  by 
serving-  their  guardians  if  any  and  if  none  then  upon  their 
nearest  of  kin  or  persons  standing  in  loco  parentis  t^  them 
and  also  upon  the  person  with  whom  such  nu'nors  reside. 


Form  255.     Petition  for  Appointment  of  Trustee. 

[See  Orphans'  Court  Act.  section  135.  page  296,  supra,  and  Orplian? 
Court  Rule  45,  page  299.  supra.] 


Essex  Couxtv  Okphaxs'  Court. 

In   the   matter  of  the   estate   of  ")  On    Petition    for    the    Ap- 
John  Doe,  deceased.  j  pointment  of  a  Trustee. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe  respectfully  shows  that: 

1.  John  Doe,  late  of  the  County  of  Essex  died  on  or  about 
the day  of 19.  . ,  leaving  a  last  will  and  testa- 
ment wherein  and  whereby  he  devised  all  of  his  real  estate 
to  one  X.  Y.,  in  trust  to  sell  the  same  from  time  to  time,  and 
to  invest  the  proceeds  and  divide  the  same  equally  among  all 
his  children  when  his  youngest  child  should  attain  the  age  of 
twenty-one  years,  vesting  in  such  trustee  full  power  to  expend 
such  sums  for  the  support,  maintenance  and  education  of  his 
children  as  in  his  discretion  should  seem  for  their  best  in- 
terest, which  said  will  was  on  the   day  of   , 

19.  .,  duly  admitted  to  probate  by  the  Surrogate  of  the  County 
of  Essex. 

2.  The  said  John  Doe  left  him  surviving  two  children,  to 
wit :  William  Doe,  your  petitioner  who  is  of  full  age,  and 
James  Doe,  an  infant  of  the  age  of  eighteen  years.  No  guard- 
ian has  been  appointed  for  the  said  James  Doc.  who  is  residing 
with  your  petitioner. 

3.  X.  Y..  the  trustee  named  in  the  last  will  and  testament 
of  John  Doe,  deceased,  as  aforesaid,  lias  refused  to  act  as  such 


1230  Probate  Law  and  Practice. 

trustee  (or  the  said  X.  Y .,  after  taking  upon  Ji'unself  the  bur- 
den of  administering  the  said  trust,  departed  this  life  before 
execcuting  and  eonipleting  the  trust  so  committed  to  him,  or 
as  the  case  may  be). 

4.  Due  notice  of  this  application  has  been  given  to  all  per- 
sons interested  in  the  execution  of  the  aforesaid  trust  (or  all 
persons  interested  in  the  execution  of  said  trusts  have  duly  con- 
sented hereto  as  by  their  consent  hereunto  annexed  zvill  more 
fully  appear). 

5.  The  income  from  real  estate  devised  to  the  said  X.  Y. 

in  trust  as  aforesaid  amounts  to  the  sum  of dollars 

per  year ;  and  the  personal  property  in  the  hands  of  the  said 
X.  Y.,  trustee  as  aforesaid,  amounts  to dollars. 

Your  petitioner  therefore  prays  that  R.  S.,  or  some  other 

suitable  person,  may  be  appointed  to  execute   the   aforesaid 

trusts  created  in  and  by  the  last  will  and  testament  of  the  said 

John  Doe,  deceased,  as  aforesaid,  in  the  place  and  stead  of 

the  said  X.  Y. 

Dated  Newark,  N.  J.,  ,,,  ^ 

William  Doe. 
, ,  i9--- 


State  of  New  Jersey 
County  of  Essex 


3EY,  ) 

}  ss. 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 


Sul:)scril-)ed  and  sworn  to  this"^ 

day  of    , 

If).  ...  at  Newark,  N.  J-.  before 
me, 

J.  C.  F., 

Notary  Public  of  '  '.  J. 

For  notice  of  application  see  Form  254 


>■  William  Doe. 


Appoixtmkxt  of  TRrsTEEs.  123 1 

Form  256.     Decree  Appointing  Trustee. 

[See  Orphans'  Court  Act.  section  135.  page  296.  supra,  and  Orphans' 
Court  Rule  45.  page  299,  supra.] 


Essex  Couxtv  Ori'ii.\ns'  Court. 
Decree  Appo'intiny  Trustee. 


In   the   matter  of   the   estate  of  |  On    Petition    for   Appoint- 
john  Doe,  deceased.  (  ment  of  Trustee. 


It  appearing  from  the  petition  of  William  Doe,  filed  herein, 
that  John  Doe,  late  of  the  Cotmty  of  Essex,  deceased,  in  and 
by  his  last  will  and  testament,  duly  admitted  to  probate  by 
the  Surrogate  of  the  County  of  Essex,  devised  all  of  his  real 
estate  to  one  X.  Y.,  upon  certain  trusts  in  said  will  created 
and  declared,  and  it  appearing  that  the  said  X.  Y.  has  refused 
to  act  as  such  trustee  {or  that  the  said  X.  Y.,  after  taking  upon 
himself  the  burden  of  administering  the  said  trust,  departed 
this  life  before  the  completion  of  the  trusts  so  committed  to 
him  or  as  the  case  may  be),  and  that  due  notice  of  this  ap- 
plication has  been  given  to  all  persons  interested  in  the  ex- 
ecution of  said  trusts,  in  manner  and  form  as  required  by  the 
rules  of  this  court  (or  that  all  persons  interested  in  the  exe- 
cution of  said  trusts  Jiai'c  duly  consented  hereto). 

And  it  appearing  that  the  income  from  the  said  real  estate 

devised  to  X.  Y.  in  trust  as  aforesaid  amounts  to   

dollars  per  year,  and  that  the  personal  property  in  the  hands 

of  the  said  X.  Y.,  trustee  as  aforesaid,  amounts  to   

dollars. 

It  is  thereupon,  on  this day  of  ,  19.  . ,  or- 
dered, adjudged  and  decreed  that  R.  S.,  who  in  the  judgment 
of  the  court  is  a  suitable  person,  be  and  he  hereby  is  appointed 
trustee  in  the  place  and  stead  of  the  said  X.  \ .,  to  execute 
and  complete  the  trusts  created  and  declared  in  the  said  last 
will  and  testament  of  John  Doe.  deceased,  as  aforesaifl.  And 
it  is  further  ordered  that  the  said  R.  v^.,  before  entering  upon 
his  duties  as  such  trustee,  enter  into  bond  to  the  ordinary  of 

this  state  in  the  sum  of dollars  with  sufficient  sureties 

79 


1232  Probate  Law  and  Practice. 

to   be   approved   by   this   court,   conditioned    for   the    faithful 
performance  of  his  duties  as  such  trustee. 

W.  P.  M., 

Judge. 


Form  257.     Bond  of  Trustee   Appointed  by  the   Orphans'   Court. 

[See  Orphans"  Court  Act,  section  135,  page  296,  supra.] 

Know  all  men  by  these  presents  that  we,  R.  S.,  A.  B.,  and 

C.  D.,  all  of  the of ,  in  the  County  of 

and  State  of  New  Jersey,  are  held  and  firmly  bound  unto  the 

Ordinary  of  the  State  of  New  Jersey  in  the  sum  of   

dollars  lawful  money  of  the  United  States,  to  be  paid  to  the 
said  ordinary  as  aforesaid,  his  successors  or  assigns,  to  which 
payment  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors  and  administrators,  jointly  and  severally 
firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

one  thousand  nine  hundred  and   

The  condition  of  this  obligation  is  such  that  whereas  the 
said  R.  S.,  has  been  appointed  by  the  Orphans'  Court  of  the 
County  of  Essex  trustee  to  execute  the  trusts  created  in  and 
by  the  last  will  of  John  Doe,  deceased,  in  the  place  of  X.  Y., 
the  trustee  in  said  will  named.  Now  if  the  said  R.  S.,  shall 
well  and  truly  perform  the  said  trusts,  then  this  bond  shall  be 
void,  otherwise  to  remain  in  full  force  and  effect. 

Signed,  sealed  and  delivered  » '  r^'  /   '     i 

.      ,  r  >  A.  B.  (l.  s.) 

in  the  presence  01  „  ^  ,         . 

J  C.  D.  (l.  s.) 

Add  justification  of  stireties  as  in  Form  7. 


DISTRIBUTION. 

I.     OF  ESTATE  OF  INTESTATE. 
Form  258.     Petition  for  Decree  of  Distribution. 

[See  Orphans'  Court  Act,  section  168.  page  716,  supra  and  Orphans' 
Court  Rule  26.  page  717,  supra.] 

Essex  County  Orphans'  Court. 


DisTRir.uTiox.  1233 


In   the   matter   of   the   estate  of  |  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Distribution. 

Petition. 


To  the  Orphans"  Court  of  tlie  County  of  Essex  : 

The  petition  of  WilHam  Doe,  of  the of in  the 

County  of    and   State  of   New   Jersey,   respectfully 

shows  that : 

1.  He  is  the  administrator  of  the  estate  of  John  Doe,  late 
of  the  County  of  Essex,  deceased,  and  presents  herewith  his 
final  account  as  such  administrator,  whereby  it  appears  that 
there  is  a  balance  amounting  to  the  sum  of dollars  re- 
maining in  his  hands  for  distribution  among  the  next  of  kin 
of  the  said  intestate. 

2.  The  said  John  Doe  was  a  native  of  Ireland,  and  your 
petitioner  is  uncertain  as  to  who  are  his  next  of  kin  and  en- 
titled to  distribution  of  the  residue  of  his  personal  estate. 

Yotir  petitioner  therefore  prays  that  this  court  may  make 
its  decree  ordering  a  just  and  equal  distribution  of  the  residue 
of  the  personal  estate  of  the  said  John  Doe,  deceased,  to  the 
next  of  kin  of  the  said  intestate. 

Dated  Newark,  X.  [.,  ,,,  t-.   ^ 

\\  ^LI.l.\^[  Doe. 


,  19. 


St.ate  of  New  Jersey 
County  of  Essex 


..}.., 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named  and  thai  the  matters  and  things  contained 
therein  are  true  to  the  Ix'st  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this"^ 

day  of    ,  [ 

19..,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary   I'ublic  of   .\.  J. 

N(j  notice  of  this  ajjplication  is  necessary. 


William  Doe. 


1234  Probate  Law  and  Practice. 

Form  259.     Proof  of  Next  of  Kin  Entitled  to  Distribution. 

[See  Orphans'  Court  Act.  section  168.  page  716,  supra  and  Orphans' 
Court  Rule  26,  page  717,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  ")  On  Petition  for  Decree  of 
John  Doe,  deceased.  J  Distribution. 

Proof  of  Next  of  Kin. 


State  oe 
County 


New  Jersey,  ") 
:  oE  Essex,      j 


Jane  Doe,  being  duly  sworn  upon  her  oath,  deposes  and 
says  that  she  is  the  sister  of  John  Doe,  late  of  the  County  of 
Essex,  deceased.  That  said  John  Doe  was  a  native  of  Ireland, 
which  he  left  some  forty  years  ago ;  deponent  is  also  a  native 
of  Ireland,  and  came  to  this  country  with  her  brother,  John 
Doe  aforesaid. 

The  said  John  Doe  never  married,  but  left  him  surviving 
as  his  next  of  kin,  the  following  named  persons :    a  brother. 

James  Doe,  who  resides  in  County    ,   Ireland ;    and 

Michael  Dunn.  Patrick  Dunn  and  Bridget  Dunn,  the  children 
of  Mary  Dunn,  a  deceased  sister,  all  of  whom  are  of  full  age. 

and  reside  in  County Ireland,  and  your  petitioner  who 

resides  in  the  City  of  Newark  in  the  County  of  Essex  afore- 
said. 


Subscribed  and  sworn  to  this"^ 
day  of   , 

19...  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.   I. 


^  Iane  Doe. 


Form  260.     Decree  of  Distribution  of  an  Intestate's  Estate. 

[See  Orphans'  Court  Act.  section  168.  page  716,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of  the   estate  of  )  On  Petition  for  Decree  of 
John  Doe.  deceased.  j  Distrilnition. 

Decree  of  Distribnt'wn. 

The  account  of  William  Doe,  administrator  of  the  estate  of 


DlSTKIBL  TIOX.  12 


or 


John  Doe,  deceased,  having  been  thily  auiHtcd  and  slated  by 
the  surrogate,  and  it  appearing  by  the  said  account  that  the 

s""i  of    dollars  remains  after  the  payment  of  debts, 

funeral  charges  and  just  expenses,  and  it  having  been  proved 
to  the  satisfaction  of  the  court  that  the  said  John  Doe  left 
him  surviving  as  his  only  next  of  kin.  Jane  Doe,  a  sister. 
James  Doe,  a  brother,  and  Michael,  Patrick  and  Bridget  Dunn, 
the  children  of  a  deceased  sister,  ^^larv  Dunn. 

It  is  thereupon  on  this day  of  ,  19. ..,  or- 
dered, adjudged  and  decreed  that  the  aforesaid  residue  of  the 
estate  of  the  said  John  Doe,  deceased,  be  distributed  among  his 
next  of  kin  as  follows,  to  wit :  One-third  part  th'ereof  to  his 
aforesaid  sister,  Jane  Doe ;  one-third  part  thereof  to  his  afore- 
said brother,  James  Doe ;  one-ninth  part  thereof  to  his  afore- 
said nephew,  INlichael  Dunn;  one-ninth  part  thereof  to  his 
aforesaid  nephew,  Patrick  Dunn  ;  one-ninth  part  thereof  to 
his  aforesaid  niece,  Bridget  Dunn. 

w.  P.  ^r., 

Judge. 
Application  for  this  order  is  usually  made  at  the  time  of  the 
allowance  of  the  account  of  the  administrator,  and  it  is  in- 
corporated into  the  decree  allowing  the  account  (Form  234). 
The  above  form  is  only  used  in  a  case  where  after  the  account 
has  been  allowed,  the  administrator  decides  to  apply  for  a 
decree  of  distribution. 


II.     IN  CASE  OF  WILL. 

Form   261.     Notice   of   Application    for   Decree   of   Distribution   in 
Case  There  is  a  Will. 

[See  Orphans'  Court  Act.  section   173.  pa^e  7_'_>.  supni,  ;inrl  Orphans' 
Court  Rule  28,  page  724,  supra.] 

EssKx  CouxTv  Orphans'  Court. 

In   the   matter  of  the  estate  of  ")  On  Petition  for  Decree  of 
John  Doe,  deceased.  j       Distribution. 

Notice  of  Applicatwrt. 

To  James  Doe,  legatee  under  the  last  will  of  John  Doe.  de- 
ceased : 


1236  Probate  Law  and  Practice. 

You  are  hereby  notified  that  on  the day  of 

19.  .  .,  at  10  a.  m.,  at  the  Court  House  in  the  City  of  Newark. 
I  shall,  apply  to  the  Orphans'  Court  of  the  County  of  Essex 
for  a  decree  adjusting,  ordering  and  making  just  distribu- 
tion in  accordance  with  the  directions  and  provisions  of  the 
last  will  and  testament  of  the  said  John  Doe,  deceased,  of 
what  remains  of  the  aforesaid  estate  after  all  debts  and  ex- 
penses have  been  allowed  and  deducted. 

Dated  Newark,  N.  J.,  William  Doe. 
, .i9--- 

This  notice  is  necessary  on  application  for  a  decree  of  dis- 
tribution where  there  is  a  will,  see  Orphans'  Court  Rule  2"/, 
page  '2^^,  supra. 

For  form  of  proof  of  service  see  Form  38. 


Form  262.     Petition  for  Decree  of  Distribution  in  Case  of  Will. 

[See  Orphans'  Court  Act,  section  173.  page  722,  supra,  and  Orphans' 
Court  Rules  27  and  28,  pages  J2t,  and  724,  supra.] 


Essex  Couxtv  Orphans'  Court. 

state  of  I  On  Petition 
John  Doe,  deceased.  (  Distribution. 


In  the  matter  of  the  estate  of  |  On  Petition  for  Decree  of 


Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the    of   , 

in  the  County  of   and  State  of   ,  respectfully 

shows  that : 

1.  He  is  the  executor  named  in  the  last  will  and  testament 
of  John  Doe,  late  of  the  County  of  Essex,  deceased,  which 
said  will  was  duly  admitted  to  probate  by  the  Surrogate  of 
the  County  of  Essex  on  the day  of ,  19.  . 

2.  On  the day  of ,  19.  .  . ,  the  final  account  of 

your  petitioner,  executor  as  aforesaid,  was  duly  allowed  by 
this  court,  whereby  it  appears  that  there  is  a  balance  of  said 
estate  remaining  in  his  hands,  after  the  payment  of  all  just 


DlSTRIUL'TlON".  I. 


■0/ 


debts  and  legacies,  other  than  those  payable  from  the  residuum 
of  the  estate,  amounting  to  the  sum  of dollars. 

3.  The  fourth  clause  of  the  will  of  the  said  John  Doe,  de- 
ceased, a  cop\'  whereof  is  hereunto  annexed,  provides  as  fol- 
lows : 

"1  give,  devise  and  bequeath  all  of  the  rest  res- 
"idue  and  remainder  of  my  said  estate  to  my 
"wife,  Jane  Doe,  authorizing  and  empowering 
"her  to  expend  and  dispose  of  the  same  as  she 
"may  choose.  After  the  death  of  my  said  wife, 
"Jane,  I  give,  devise  and  bequeath  such  of  the 
"residue  of  my  estate  as  .^lall  then  remain  to 
"my  children,  James,  Mary  and  Henry,  share 
"and  share  alike." 

4.  The  said  Jane  Doe  claims  that  under  the  terms  of  the 
said  will  she  is  entitled  to  receive  the  residue  of  the  estate  abso- 
lutely and  that  James,  Mary  and  Henry,  the  children  of  the 
said  John  Doe,  take  no  interest  therein,  and  your  petitioner  is 
uncertain  as  to  whom  to  distribute  the  aforesaid  residue  of 
the  estate  of  the  said  John  Doe,  deceased. 

5.  The  persons  interested  in  this  proceeding  are  Jane  Doe, 

who  resides  at  No , Street  in  the of 

in  the  State  of   and  James,  Mary  and  Henry 

Doe,  all  of  whom  reside  at  No.  .  . , Street  in  the 

of ,  in  the  State  of All  of  the  foregoing  are  of 

full  age  with  the  exception  of  Henry  Doe,  who  is  a  minor  of 
the  age  of  16  years  and  who  resides  with  his  brother,  James 
Doe,  at  his  aforesaid  residence.  Due  notice  of  this  application 
has  been  given  to  all  of  the  aforesaid  persons  interested  in  this 
proceeding. 

Your  petitioner  therefore  prays  that  this  court  may  b}-  its 
order  adjust  and  make  just  distribution  of  the  said  residue  of 
the  said  estate  in  accordance  with  the  directions  and  provisions 
of  the  will  of  the  said  John  Doe,  deceased. 

Dated  Newark,  N.  J..  W^iijjam  Dok. 
i9--- 


St.\te  of  New  Jersey, 
County  of  Essex. 


William  Doe,  being  duly  sworn  according  to  law  upon  his 


1238  Probate;  Law  and  Practice. 

oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  stated 
are  true  to  the  best  of  his  knowledge  and  behef. 


■   Subscribed  and  sworn  to  this~ 

day  of   . 

19.  .,  at  Newark,  N.  J. 


me, 


[.,  before  j 


William  Dol. 


J.  C.  F., 

Notary  Pubhc  of  N.  J. 

If  petitioner  so  chooses,  he  may  take  a  rule  to  show  cause 
why  the  prayer  of*his  petition  should  not  be  granted,  which 
rule  will  direct  the  method  in  which  it  is  to  be  served,  instead 
of  proceeding  by  notice  to  the  next  of  kin. 

For  form  of  notice  see  Form  214;  for  form  of  proof  of 
service  of  notice  see  Form  t,8  ;  for  rule  to  show  cause  see  Form 
213. 


Form  263.     Decree  of  Distribution  in  Case  of  a  Will. 

[See  Orphans'  Court  Act,  section  173,  page  722.  supra  and  Orphans' 
Court  Rules  27  and  28,  pages  723  and  724,  supra.] 

Essex  Countv  Orphans'  Court. 

In   the  matter  of  the   ertate   o^  )  On  Petition  for  Decree  of 
John  Doe,  deceased.  j  Distribution. 

Decree  of  Distribution. 

It  appearing  from  the  petition  of  William  Doe,  executor  of 
the  last  will  and  testament  of  John  Doe,  deceased,  filed  herein, 
that  the  said  executor  has  duly  filed  his  account  exhibiting 
a  balance  of  the  said  estate  in  his  hands  to  the  date  of  filing 

the  same,  amounting  to  the  sum  of    dollars  which 

said  account  was  duly  allowed  by   the   decree   of   this   court 

on  the day  of ,  19.  .  . ,  and  that  he  prays  that 

this  court  may  by  its  order  make  just  distribution  of  the  afore- 
said balance  in  his  hands  in  accordance  with  the  directions  and 
provisions  of  the  last  will  and  testament  of  the  said  John  Doe, 
deceased,  and  due  notice  of  this  application  having  been  given 


Rlil-L'XDIM',    r.ONDS    AM)    Rl-I.KASKS.  1J39 

to  all  persons  in  interest  and  the  matter  coming;  on  to  be  heard, 
and  the  court  having  heard  the  allegations  of  the  parties  and 
arguments  of  counsel,  and  having  duly  considered  the  same, 
and  being  satisfied  that  Jane  Doe,  widow  of  the  said  John 
Doe,  deceased,  is  entitled  under  the  terms  of  tlie  will  of  the 
said  John  Doe,  deceased,  to  the  residue  of  said  estate  in  the 
hands  of  the  executor  as  aforesaid. 

It  is  thereupon  on  this day  of   ,  one  thou- 
sand nine  hundred  and  Okdkked  that  the  aforesaid 

sum  of dollars  remaining  in  the  hands  of  the  said  Wil- 
liam Doe,  executor  as  aforesaid,  after  all  debts  and  expenses 
have  been  allowed  and  deducted,  be  distributed  and  paid  by 
the  said  William  Doe,  executor  as  aforesaid,  to  the  said  Jane 
Doe,  upon  her  tendering  to  the  said  executor  a  proper  refund- 
ing bond  therefor. 

W.  P.  M., 
Judge. 


III.  REFUNDING  BONDS  AND  RELEASES. 

Form  264.     Refunding  Bond  by  Next  of  Kin. 

[See  Orphans'  Court  Act,  section  17J,  ])age  714,  supra.] 

Know  all  men  I'.v  tiiksE  prkskxts,  that  I,  James  Doe,  of 

the of in  the  County  of and  State  of 

New  Jersey,  am  held  and  firmly  bound  unto  William  Doe,  ad- 
ministrator of  the  estate  of  John  Doe,  deceased,  in  the  sum  of 

dollars,  lawful  money  of  the  United  States,  to  be  paid 

to  the  said  William  Doe,  administrator  as  aforesaid,  his  suc- 
cessors in  office  or  assigns,  to  which  payment  well  and  truly 
to  be  made  I  ])ind  myself,  my  heirs,  executors  and  adminis- 
trators firmly  by  these  j)resents. 

vSealerl  with  my  seal  and  dated  the day  of , 

19... 

Whereas  the  above  bounden  James  Doe  has  received  from 
the  above-named  William  Doe,  administrator  of  the  estate  of 


1240  Probate  Law  and  Practice. 

John    Doe,    deceased,    dollars,    being    his    distributive 

share  of  the  personal  estate  of  the  said  John  Doe,  deceased. 

Now  the  condition  of  this  obligation  is  such  that  if  any 
debt  or  debts  truly  owing  by  the  said  intestate,  shall  be  here- 
after sued  for  and  recovered,  or  otherwise  duly  made  to  ap- 
pear, which  there  shall  be  no  other  assets  to  pay,  that  then,  and 
in  every  such  case,  if  the  said  James  Doe  shall  refund  and 
pay  back  to  the  said  William  Doe,  administrator  as  aforesaid, 
his  ratable  part  of  such  debt  or  debts,  and  of  the  costs  of  suit 
and  charges,  by  reason  of  such  debt  or  debts,  out  of  the  part 
or  share  so  as  aforesaid  received  by  him  thereby  to  enable  the 
said  administrator  to  satisfy  such  debt  or  debts,  then  the  above 
obligation  to  be  void,  or  else  to  remain  in  full  force  and  virtue. 

Signed  and  sealed  in         )  ^  ^^  .         . 

^^ .  ,  }  Tames  Doe.  (e.  s.) 

the  presence  01  j  ' 

No  sureties  are  required  on  this  bond  which  is  required  to  be 
in  double  the  amount  of  the  distributive  share. 


Form  265.     Refunding  Bond  by  Legatee. 

[See  Orphans"  Court  Act,  section  172,  page  714,  supra.] 

Know  ael  men  by  these  presents,  that  I,  James  Doe,  of 

the of in  the  County  of   and  State  of 

,  am  held  and  tirmly  bound  unto  William  Doe,  the  ex- 
ecutor of  the  last  will  and  testament  of  John  Doe,  deceased,  in 

the  sum  of dollars  lawful  money  of  the  United  States 

to  be  paid  to  him,  his  successors  in  office  or  assigns,  to  which 
payment  well  and  truly  to  be  made  I  bind  myself,  my  heirs, 
executors  and  administrators. 

Sealed  with  my  seal  and  dated  this   day  of , 

19... 

Whereas,  the  above-named  John  Doe  did  by  his  last  will 
and    testament,    duly   probated    before    the    surrogate    of    the 

County  of  Essex  and  State  of  New  Jersey,  on  the day 

of   ,  19...,  give,  devise  and  bequeath  unto  the  above- 

bounden  James  Doe  the  sum  of dollars,  and  did  there- 
in also  appoint  the  above-named  W^illiam  Doe  executor  there- 
of ;   and  whereas  the  above  botmden  James  Doe  has  received 


Refundixg  Bonds  axu  Rkleases.  1241 

from  the  above-named   \\'illiam   Doe,   executor  as  aforesaid. 

dollars  the  amount  of  his  aforesaid  legacy. 

Xow  the  condition  of  this  obligation  is  such  that  if  any  debt 
or  debts  truly  owing  by  the  said  deceased,  shall  be  hereafter 
sued  for  and  recovered,  or  otherwise  duly  made  to  appear, 
which  there  shall  be  no  other  assets  to  pay,  that  then  and  in 
every  such  case,  if  the  said  James  Doe  shall  refund  and  pav 
back  to  the  said  William  Doe,  executor  as  aforesaid,  his 
ratable  part  of  such  debt  or  debts,  and  of  the  costs  of  suit  and 
charges,  by  reason  of  such  debt  or  debts,  out  of  the  part  or 
share  so  as  aforesaid  received  by  him  thereby  to  enable  the 
said  executor  to  satisfy  such  debt  or  debts,  then  the  above  ob- 
ligation to  be  void,  or  else  to  remain  in  full  force  and  virtue. 

Signed    and    sealed   in   the  )  _  ^ 

r  >  Jamf.s  Doe  (h  s.) 

presence  of  (  j        .         ^  v^-  ^-j 

No  sureties  are  required  on  this  bond,  which  is  required  to 
be  in  double  the  amount  of  the  legacy. 


Form  266.     Release  to  Executor. 

[See  Orphans'  Court  Act.  section  163.  page  715.  supra. 1 

Know  all  men  ijv  these  presents,  that  whereas,  John 
Doe,  late  of deceased,  in  and  by  his  last  will  and  tes- 
tament, duly  proved  before  the  surrogate  of  the  County  of 

,  did  give  and  bequeath  to  X.  Y.,  the  sum  of   

dollars  and  in  and  b\v  said  will  did  nominate  and  ap])oint  Wil- 
liam Doe  the  executor  thereof. 

Now,  therefore,  I,  the  said  X.  ^'.,  do  hereby  acknowledge 
that  I  have  received  from  the  said  William  Doe,  executor  as 

aforesaid,  the  simi  of dollars  in  full  for  the  legacy  to 

me  bequeathed  in  and  by  the  last  will  of  the  said  John  Doe  as 
aforesaid,  and  by  these  presents  do  for  myself,  my  heirs,  ex- 
ecutors and  administrators  remise,  release  and  forever  dis- 
charge the  said  William  Doe,  executor  as  aforesaid,  his  heirs, 
executors  and  administrators,  of  and  from  all  claims  and 
demands  whatsoever  in  law  or  in  equity  which  against  the  said 
William  Doe  or  against  the  said  estate  of  John  Doe,  deceased. 
I  have  or  shall  have  by  reason  of  the  aforesaid  legacy. 


1242  Probate  Law  and  Practice. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal 
this day  of ,  in  the  year  nineteen  hundred  and 


Signed  and  sealed  in 

the  presence  of  X.  Y.  (l.  s) 

The  above  release  must  be  acknowledged  in  the  same  man- 
ner as  a  deed.     See  Form  8a. 


Form  267.     Release  of  Administrator. 

[See  Orphans'  Court  Act.  section  163.  page  715.  supra.] 

Know  all  men  by  these  presents  that  I,  James  Doe,  one  of 
the  next  of  kin  and  distributees  of  John  Doe,  late  of  the 
County  of  Essex,  deceased,  for  and  in  consideration  of  the 

•sum  of dollars  lawful  money  of  the  United  States  of 

America,  to  me  in  hand  paid  by  William  Doe,  administrator  of 
the  estate  of  the  said  John  Doe,  deceased,  have  remised,  re- 
leased and  forever  discharged  and  by  these  presents  do  for 
myself,  my  heirs,  executors  and  administrators,  remise,  re- 
lease and  forever  discharge  the  said  William  Doe,  adminis- 
trator as  aforesaid,  his  heirs,  executors  and  administrators  of 
and  from  all  manner  of  action  or  actions,  cause  and  causes 
of  action,  suits,  debts,  duties,  sums  of  money,  accounts,  reck- 
onings, bonds,  bills,  specialties,  covenants,  contracts,  contro- 
versies, agreements,  variances,  trespasses,  damages,  judg- 
ments, executions,  claims  and  demands  whatsoever,  in  law  or 
in  equity,  which  against  the  said  William  Doe,  administrator, 
as  aforesaid,  I  ever  had,  now  have,  or  which  my  heirs,  ex- 
ecutors or  administrators  hereafter  can,  shall  or  may  have, 
for,  upon,  or  by  reason  of  any  matter,  cause  or  thing  whatso- 
ever from  the  l^eginning  of  the  world  to  the  date  of  these 
proceedings. 

In  witness  whereof,  I  ha\e  hereunto  set  my  hand  and  seal 
the    day  of    ,   in   the  year  of  our  Lord,  one 


Pavmi::nt  OF  M(iM,\  in  ro  Court.  124^ 

thousand  nine  liundred  and 

Signed.  W  iiliani  Doc.     (l.  S.) 

1 

X.  V.      ; 

Annex  acknowledgment  as  in  form  8a. 


Signed,  sealed  and  delivered 
in  the  presence  of 


Form  268.     Release  of  Guardian  by  Ward. 

[See  Orphans'  Court  .\ct.  section  1(33,  page  715.  supra.) 

Know  all  .men  by  these  presents,  that  I.  X.  V..  in  con- 
sideration of  a  final  settlement  this  day  had  and  made  by  Wil- 
liam  Doe.   my  guardian   appointed   by   the   surrogate   of   the 

County  of  Essex,  and  of  the  sum  of   dollars,  to  mc 

paid,  have  and  by  these  presents  do  hereby  remise  and  forever 
discharge  the  said  \\'illiam  Doe  of  and  from  all  claims  ami 
demands  whatsoever  in  law  or  in  equity  which  against  the  said 
William  Doe.  as  my  guardian.  I  ever  had.  now  have,  or  shall 
have. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal 
this day  of 19.  .  .. 

Signed  and  sealed  in        1  ,,    „  . 

I  r  t  A.      1  .         (  L.   S) 

the  presence  of  j 

The  above  release  must  be  acknowledged  in  the  same  man- 
ner as  a  deed.     See  Form  8a. 

A  guardian  or  trustee  filing  the  abo\e  release  need  not  set- 
tle an  account.  Orphans'  Court  .\ct,  section  IJO.  page  6ii>. 
supra. 


PAYMENT  OF  MONEY  INTO  COURT. 

Form  269.     Affidavit  on  Payment  of  Money  into  Court. 
[See  2  Comp.  Stat.,  page  2272.  section  38.  page  7'-'.  .sui.iu.| 

Essex  Cotntv  Oki'Iians'  Coi-rt. 


■  the  estate  of  ) 
iased.  I 


In   the  matter  of 
John  Doe,  deceai^ 

Affnhivit  on  I'liyiiinit  nf 
Moiiev  Into  Court. 


1244  Probatk  Law  and  Practice. 

State  of  New  Jersey, 


■} 


County  oe  Essex.      ''  ' 

William  Doe,  being  duly  sworn  upon  his  oath,  according  to 
law,  deposes  and  says  that  he  is  the  administrator  of  the  estate 
of  John  Doe,  late  of  the  County  of  Essex,  deceased.     That  on 

the day  of ,  19.  .  . ,  the  Orphans'  Court  of  the 

said  County  of  Essex  duly  allowed  his  final  account  as  such 
administrator,  and  that  there  remains  in  his  hands  the  sum 

of dollars,  being  the  distributive  share  of  Henry  Doe, 

one  of  the  children  of  the  said  John  Doe,  and  as  such  entitled 
to  participate  in  the  distribution  of  his  estate ;  but  that  the 
said  Henry  Doe  has  not  appeared  to  claim  the  said  distributive 
share,  although  more  than  three  months  have  elapsed  since 
the  time  of  the  allowance  of  deponent's  final  account,  as 
aforesaid. 

Deponent  further  says  that  he  has  made  diligent  inquiry 
for  the  post-ofiice  address  of  the  said  Henry  Doe  entitled 
to  such  distributive  share  as  aforesaid,  but  that  he  has  not 
been  able  to  ascertain  the  same   (or  that  lie  ascertained  that 

said  Henry  Doe  resided  in  the of in  the  County 

of and  State  of ,  and  that  on  the day  of 

,  19.  .,  he  mailed  a  letter  addressed  to  the  said  Henry 

Doe,  at  his  above  address,  notifying  him  to  appear  and  receive 
the  said  distributive  share  and  that  said  Henry  Doe  has  not 
appeared  or  claimed  the  same). 


Subscribed  and  sworn  to  this^ 

day  of    ,  I 

19..,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J 


William  Doe. 


Form  270.     Receipt  of  Surrogate  on  Payment  of  Money  into  Court. 
[See  2  Comp.  Stat.,  page  2272.  section  38,  page  712,  supra.] 

Essex  County  Orphans'  Court. 


In   the  matter  of  the   e>tate 
John  Doe.  deceased. 


Pavmkxt  of  Money  into  Court.  1245 


Receipt  for  Money  Paid 
into  Court. 


State  of  New  Jers 
County  of  Esse 


X.         f 


I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex  and  Clerk 
of  the  Orphans'  Court  of  said  county,  do  hereby  acknowledge 
the  receipt  of  the  sum  of   ......   dollars  paid  to  me  by  \Vil- 

liam  Doe,  the  administrator  of  the  estate  of  John  Doe,  de- 
ceased, which  sum  is  the  amount  of  a  distributive  share  of  the 
aforesaid  estate  to  which  Henry  Doe  is  entitled,  who  has  failed 
to  appear  and  claim  the  same. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  atlixed 

my  seal  of  ofifice  this day  of ,  19.  . . 

F.  G.  S.,  Jr., 

Surrogate  and  Clerk  of  the 
Orphans'  Court. 


Form  271.     Petition  for  Money  Paid  into  Court  by  Person  Entitled 
Thereto. 
[See  2  Comp.  Stat.,  page  2272,  section  40,  page  713,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of  the   estate   of  )  On  Application  for  Money 


of  I  On  Ap 
j  Paid  ii 


John  Doe,  deceased.  (  Paid  into  Court. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex  : 

The  petition  of  Henry  Doe  respectfully  shows  that : 
T.  He  is  the  son  of  John  Doe,  late  of  the  City  of  Newark, 
in  the  County  of  Essex,  deceased.     His  said  father  died  on 

the day  of 19. . .,  and  William  Doe  was  duly 

appointed  adnu'nistrator  of  his  said  father's  estate.     The  >aid 
William   Doc  duly  administered  the  estate  of  his   father,   the 

said  John  Doe.  aforesaid,  and  on  the day  of 

19.  .  .,  j)aid  into  this  court  the  sum  of d<jllars.  bcintj^ 


i2/i6  Probate  Law  and  Practice. 

/ 

the  distributive  share  to  which  your  petitioner  is  entitled,  as 
one  of  the  next  of  kin  of  the  said  John  Doe,  aforesaid. 

2.  After  the  death  of  the  said  John  Doe,  your  petitioner 
left  the  City  of  Newark,  and  went  to  Chicago,  in  the  State  of 
Illinois,  where  he  was  employed  for  a  time ;  thereafter  for  a 
period  of  some  years,  he  remained  in  the  West,  moving  about 
from  city  to  city,  and  without  any  permanent  residence ;  and 
he  did  not  ascertain  until  recently  that  the  estate  of  his  father 
the  aforesaid  John  Doe,  had  been  settled,  and  therefore  did 
not  appear  to  claim  his  distributive  share  thereof. 

Your   petitioner   therefore   prays   that   the    sum   of    

dollars  so  paid  into  court  by  the  said  William  Doe,  as  adminis- 
trator of  the  estate  of  the  said  John  Doe,  deceased,  as  afore- 
said, being  the  amount  of  his  distributive  share  in  the  estate  of 
the  said  John  Doe,  aforesaid,  together  with  any  accumulation 
of  interest  thereon,  be  paid  to  him. 

Dated  Newark,  N.  T-.  ^^  ^ 

Henry  Doe. 
,  ,  i9--- 


State  of  New  Jersey,  | 
County  of  Essex,      j 

Henry  Doe,  being  duly  sworn  according  to  law,  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true,  to  the  I)est  of  his  knowledge  and  belief. 

Sul)scribed  and  sworn  to  this^ 

day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Five  days  notice  of  this  application  should  be  given  to  the 
executor  or  administrator. 


Henry  Doe. 


Form  272.     Order  Directing  Payment  of  Moneys  Paid  Into  Court 
to  Claimant. 

[See  2  Comp.  Stat.,  page  2272,  section  40,  page  713,  supra.] 

Essex  County  Orphans'  Court. 


COXTEMPT    PrOCKKDIXGS.  1 24; 


In   the  matter  of   the   estate   of  |  On  Application  for  Money 
John  Doe.  deceased.  (  Paid  into  Court. 


Order  Directing  Payment 
of  Money  to  Claimant. 

It  appearing  from  the  petition  of  Henry  Doe,  tiled  herein, 
that  he  is  the  son  of  John  Doe,  late  of  the  County  of  Essex, 
deceased ;  that  letters  of  administration  upon  the  estate  of 
said  John  Doe  were  duly  granted  to  William  Doe,  who,  after 
administering  the  said  estate,  paid  into  this  court  the  sum  of 
dollars,  being  the  unclaimed  distributive  share  of  afore- 
said Henry  Doe,  and  the  court  having  examined  into  the 
matter  and  being  satistied  that  the  said  petitioner  is  the  son 
of  the  said  John  Doe.  deceased,  whose  distributive  share  was 
paid  into  this  court  as  aforesaid. 

It  is  thereupon,  on  this day  of ,  19.  .  .,  or- 
dered that  the  sum  of  ....  dollars,  being  the  distributive  share 
of  the  said  Henry  Doe  in  the  estate  of  his  father,  the  afore- 
said John  Doe,  which  was  paid  into  this  court  as  aforesaid, 
together  with  any  accumulation  of  interest  thereon,  be  paid  to 
the  said  Henry  Doe,  the  petitioner  herein. 

W.  P.  :^i., 

Judge. 


CONTEMPT  PROCEEDINGS. 

Form  273.     Petition  for  Order  Adjudging  Executor,  Etc.,  in  Con- 
tempt. 

[See  Orphans'  Court  Act.  section  183.  pat^e  49.  supra.] 

Essex  Countv  Orimfaxs'  Court. 

In   the  matter  of  the  estate   of  ")  On     Petition    to    Adjudge 
John  Doe,  deceased.  J       Executor  in  Contempt. 

Petition. 


To  the  Orphans'  Court  of  the  CoOnty  of  Essex  : 

The  petition  of  James  Doe  of  the  City  of  Newark  in  the 
County  of  Essex  and  State  of  New  Jersey,  one  of  the  legatees 
80 


1248  Probate  Law  and  Practice;. 

named  in  the  last  will  and  testament  of  John  Doe  late  of  the 
County  of   Essex,   deceased,   respectfully   shows   that : 

1.  This  court  by  its  order  made  on  the    day  of 

,  19.  .  .,  ordered  and  directed  that  William  Doe,  the 

executor  of  the  last  will  and  testament  of  John  Doe,  deceased, 
appear  before  this  court  to  make  discovery  as  to  the  condition 
of  the  estate  in  his  hands,  by  the  production  of  books,  papers 
and  documents  relating  thereto. 

2.  The  aforesaid  order  was  duly  served  upon  the  said  Wil- 
liam Doe  by  delivering  to  him  personally  a  true  but  uncertified 
copy  thereof,  as  directed  in  said  order ;  but  the  said  William 
Doe  has  made  default  and  failed  to  appear  before  this  court 
to  make  discovery  as  directed  in  the  aforesaid  order,  and  has 
disobeyed  the  order  of  this  court. 

Your  petitioner  therefore  prays  that  the  said  William  Doe 
be  committed  for  contempt  of  this  court  by  reason  of  his  dis- 
obedience to  the  aforesaid  order  of  this  court. 

Dated  Newark,  N.  T-.  ,  ^ 

AMES  Doe. 
,  i9-.- 


State  of  New  Jersey 
County  oe  Kssex 


''  I  ss. 


James  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  contained 
therein  are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  this"^ 
day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J 


>  James  Doe. 


Form  274.     Rule  to  Show  Cause  Why  Executor.  Etc.,  Should  Not 
be  Held  in  Contempt. 

[See  Orphans'  Court  Act.  section  183.  page  49.  supra.] 

Essex  County  Orphans'  Court. 


COXTKMPT    PrOCKI'IMNC.S.  1249 

In   the   matter  of  the   estate  of  ")  On     Petition    to    Adjudge 
John  Doe,  deceased.  j  Executor  in   Contempt. 

Order  to  SIi07c  Cause  JJliy 
Executor  Should  Not  be, 
Connnitted   for    Contempt. 

On  reading  and  filing  the  petition  of  William  Doe  setting 
forth  that  James  Doe,  the  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  deceased,  failed  and  neglected  to  appear 

before  this  court  on  the    day  of    19..,  as 

directed  by  an  order  of  this  court  made  on  the day  of 

,19.... 

It  is  on  this day  of ,  19.  . ,  ordered  that  the 

said  William  Doe  show  cause  before  this  court  on  the 

day  of 19.  ...  at  ten  o'clock  in  the  forenoon,  why  he 

should  not  be  adjudged  in  contempt  of  this  court  because  of 

hi^  refusal  to  obey  the  order  of  this  court  made  on  the 

day  of 19.  . .,  as  aforesaid. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy 
of  this  order  and  of  the  petition  upon  which  the  same  is  based 
be  served  upon  the  said  William  Doe,  personally  within  .  .  * . 
days  from  the  date  of  this  order. 

W.  P.  M., 


Judge. 


For  proof  of  service  see  Form  38. 


Form  275.     Order  Committing  Executor  for  Contempt. 
[See  Ori)lians'  Court  Act,  section  183.  page  40.  supra.] 

Essex  Couxtv  Orphans'  Court. 

In   the   matter  of   the  estate  of  ")  On     Petition    to    Adjudge 

j  Executor   in   Contempt. 


John  Doe.  deceased. 


Order    IIoldi)uj    Hxecutor   in 
Contempt. 


It  appearing  that  by  order  of  this  conrt  made  on  the 

day  of ,  19.  .  .,  William  Doe,  the  executor  of  the  last 

will  and  testament  of  John  Doe,  deceased,  was  ordered  to  ap- 
pear before  this  court  on  the   day  of   19.  . , 


1250  Probate  Law  and  Practice. 

to  make  discovery  as  to  the  condition  of  the  aforesaid  estate 
in  his  hands,  and  that  the  said  WilHam  Doe  disobeyed  said 
order  and  refnsed  and  neglected  to  appear  and  make  discovery 
as  therein  directed. 

And   it   further  appearing  that  by  an   order  of  this  court 

made  on  the day  of ,  19.  .,  the  said  William 

Doe  was  ordered  to  show  cause  before  this  court  on  the 
day  of  19.  •  .,  why  he  should  not  be  com- 
mitted for  his  contempt  in  disobeying  the  aforesaid  order  of 
this  court,  which  last  mentioned  order  has  been  duly  served 
upon  him,  and  the  matter  coming  on  to  be  heard,  and  the  court 
having  considered  the  matter,  and  being  satisfied  that  the  said 
William  Doe  wilfully  disobeyed  the  order  of  said  court  made 
on  the day  of ,  19.  . ,  as  aforesaid. 

It  is  on  this   day  of   ,   19.  .  . ,  ordered  and 

adjudged  that  the  said  ^^'illiam  Doe  is  guilty  of  a  contempt  of 
this  court  in  not  obeying  the  aforesaid  order  of  this  court, 
and  that  he  stand  committed  to  the  county  jail  of  the  County 
of  Essex  for  his  aforesaid  contempt  until  the  further  order 
of  this  court. 

W.  P.  M.,' 
Judge. 


SUITS    FOR    LEGACIES    AND    DISTRIBUTIVE 
SHARES. 

Form  276.     Petition  for  Recovery  of  Legacy. 

[See  Orphans'  Court  Act.  section  192,  page  730,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  estate  of  ")  On  Petition  for  Recovery 
John  Doe,  deceased.  j  of  Legacy. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  William  Doe,  of  the   of   

in  the  County  of and  State  of  ,  respectfully 

shows  that : 


Suits  for  Legacies.  1251 

1.  John  Doe,  late  of  the  County  of  Essex,  died  on  or  about 

the   ...'..    day  of    19.  .  . ,  leaving  a  last  will  and 

testament  wherein  and  whereby  he  gave  to  your  petitioner  a 

legacy  of dollars,  to  A.  B.  a  legacy  of   dollars 

and  to  X.  Y.,  a  legacy  of dollars;    and  one  R.  S.  was 

therein  nominated  and  appointed  as  executor  thereof.  The 
said  will  was  on  the  day  of  ,  19. . . ,  dulv  ad- 
mitted to  probate  by  the  Surrogate  of  the  aforesaid  County 
of  Essex,  who,  on  the  same  day,  duly  issued  letters  testa- 
mentary thereon  to  the  said  R.  S.,  the  executor  therein  named. 

2.  The  said  R.  S.,  executor  as  aforesaid,  has  filed  his  final 
account  in  the  office  of  the  Surrogate  of  the  County  of  Essex, 
which  account  has  been  duly  allowed  by  this  court,  and  it 
thereby  appears  that  the  said  executor  has  sufficient  assets  in 
his  hands  to  pay  your  petitioner's  aforesaid  legacy,  without 
prejudice  to  the  rights  of  others  entitled  to  priority  or  equality 
of  payment. 

3.  -More  than  one  year  has  elapsed  since  the  probate  of  said 
will  and  your  petitioner  has  demanded  payment  of  the  said 
legacy  from  the  said  R.  S.,  executor  as  aforesaid,  and  has 
tendered  him  a  proper  refunding  bond,  but  said  executor  has 
neglected  and  refused  to  pay  the  same. 

Your  petitioner  therefore  prays  that  a  decree  may  be  made 
directing  and  requiring  the  said  R.  S.,  executor  as  aforesaid, 
to  pay  to  your  petitioner  his  aforesaid  legacy,  and  that  the 
said  R.  S.,  executor  as  aforesaid,  and  the  said  A.  B.  and  X.  Y., 
the  other  legatees  in  said  will  named  as  aforesaid,  may  be  cited 
to  appear  and  answer  the  premises  and  abide  such  decree  as 
the  court  shall  make  therein. 

Dated  Newark,  X.  J.,  U'ii.i.i.\.\r  Ook. 
, ,19.... 


State  of  New  Jersey, 
County  of  Essex. 


1 


William  Doe,  the  petitioner  in  the  foregoing  petition  named, 
being  duly  sworn  according  to  law  upon  his  oath,  deposes  and 


1252  Probate  Law  and  Practice. 

says,  that  the  matters  and  things  therein  contained  are  true 
to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this"^ 
day  of    , 

19.  .  .,  at  Newark,  N.  J-,  before 
nie.  ^ 

J.  C.  F., 

Notary  Public  of  N.   T- 


>  William  Doe. 


Form    277.      Citation    on    Petition    for    Legacy    or    Distributive 
Share. 

[See  Orphans'  Court  Act.  section  192,  page  730,  supra.] 

Essex  County  Orphans'  Court. 
State  of  New  Jersey^ 


RSEY,  "I 

ex.       } 


ss. 

County  of  Essex. 

The  State  of  New  Jersey, 

To   Jane   Doe,   and    Henry   Doe,   and   James   Doe. 
(l.  s.)     the  executor  of  the  last  will  and  testament  of  John 
Doe,  deceased,  Greeting  : 

We  cite  and  command  you  that  you  personally  be  and 
appear  before  the  Orphans'  Court,  to  be  holden  at  the  Court 
House,   in  the   City   of   Newark,   in   and   for   the   County   of 

Essex,  on  the ,  the day  of ,  A.  D.  19.  .  ., 

at  ten  o'clock  in  the  forenoon,  to  answer  unto  the  petition  of 
William  Doe  that  a  decree  may  be  made  directing  James 
Doe,  executor  of  the  last  will  and  testament  of  John  Doe. 
deceased,  to  pay  the  legacy,  or  distributive  share,  to  which 
the  said  William  Doe  is  entitled  out  of  said  estate,  and  to 
abide  the  judgment  of  the  said  court  in  the  premises. 

Witness  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 

Newark  aforesaid,  this day  of ,  one  thousand 

nine  hundred  and  .... 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk 

This  citation  must  be  served  bv  the  Sheriff. 


Suits  for  Legacies.  1253 

Form  278r    Answer  in  Suit  for  Recovery  of  Legacy. 
[See  Orphans'  Ctnirt  Act.  section   ig2.  page  730.  supra.] 

Essex  Countv  Orph.\xs'  Court. 
In   the  matter  of   the  estate  of  ")  On   Petition    for   Recovery 


I  Or 
]of 


John  Doe,  deceased.  J  of  Legacy. 

Answer. 

The  answer  of  R.  S.,  the  executor  of  the  last  will  and 
testament  of  John  Doe,  deceased,  to  the  petition  of  William 
Doe,  petitioner  herein. 

This  respondent,  answering,  says  as  follows : 

1.  He  admits  the  allegations  set  up  in  the  first  and  second 
paragraphs  of  the  said  petition. 

2.  This  respondent,  further  answering,  says  that  he  is  in- 
formed in  such  manner  that  he  believes  it  to  be  true,  that  the 
said  William  Doe  has  assigned  his  aforesaid  legacy  to  one 
James  Smith,  who  has  served  upon  your  petitioner  notice  of 
such  assignment  and  that  this  respondent  cannot  safely  pay  the 
said  legacy  to  the  said  William  Doe. 

3.  This  respondent  prays  to  be  hence  dismissed  with  his 
reasonable  costs  and  charges  in  this  behalf  most  wrongfully 
sustained. 

Dated  Newark,  N.  J.,  W.  B., 
,   ,  19...                         Proctor    for   Respondent. 

This  answer  must  be  filed  witliin  20  days  from  the  return 
day  of  the  citation. 


Form   279.      Decree   for    Payment   of   Legacy. 

[See  Orphans"  C<nirt  Act.  section  19J.  page  730,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of  the   estate  of  1  On  Petition  for  Payment  of 
John  Doe,  deceased.  (  Legacy. 

Decree  for  PayiiiciiL  of  Legacy. 

William  Doe,  having  hied  his  petition   for  the  recovery  of 
a   legacy  bequeathed   to   him   by   the   last    will   of   John    Doe, 


1254  Probate  Law  and  Practice. 

deceased,  and  the  citations  issued  having  been  returned  duly 
served  upon  R.  S.,  executor  of  said  will  and  A.  B.  and 
X.  Y.,  the  remaining  legatees  in  said  will  named,  and  the 
court  having  examined  into  the  matter  and  being  satisfied 
that  the  said  R.  S.,  executor  as  aforesaid,  has  sufficient  assets 
in  his  hands  to  pay  the  aforesaid  legacy  without  prejudice  to 
the  rights  of  others  entitled  to  priority  or  equality  of  pay- 
ment; and  that  the  said  William  Doe  has  not  assigned  his 
aforesaid  legacy  as  alleged  in  the  answer  of  R.  S.  filed  herein; 
It  is  thereupon  on  this day  of  ,  19.  .  .,  or- 
dered, adjudged  and  decreed  that  there  is  due  to  the  said  Wil- 
liam Doe  from  the  aforesaid  estate  the  sum  of dollars 

with  interest  thereon  from  the day  of   ,  19.  .  ., 

and  that  R.  S.,  the  aforesaid  executor,  pay  the  same  to  the 
said  William  Doe  forthwith  upon  the  said  William  Doe  ten- 
dering to  him  a  proper  refunding  bond  therefor. 

\\\    P.    M., 

Judge. 


Form  280.     Petition   for   Recovery  of   Distributive   Share. 

[See  Orphans'  Court  Act.  section   192.  page  730,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  ")   On   Petition   for   Recovery 
John  Doe,  deceased.  j  of  Distributive  Share. 

Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex. 

The  petition  of  William  Doe,  of  the  ......  of ,  in 

the  County  of    ,  and   State  of    ,   respectfully 

shows  that : 

I.  John  Doe,  late  of  the  County  of  Essex  died  on  or  about 

the    day   of    ,    19...,   intestate,   leaving   him 

surviving  three  children,  to  wit:  William  Doe,  your  petitioner, 
James  Doe  and  Richard  Doe,  his  only  next  of  kin,  and  that 
administration  upon  the  estate  of  the  said  John  Doe  was  on 

the day  of ,  19.  . .,  duly  granted  to  James  Doe, 

one  of  the  children  of  the  said  John  Doe,  as  aforesaid,  by  the 
Surrogate  of  the  County  of  Essex. 


Suits  for  Lec-aciks.  u 


-1 1 


2.  The  said  James  Doe  has  filed  his  final  account  as  such 
administrator,  and  the  same  was  duly  allowed  by  this  court 

on  the    day  of nj whereby   it   a])pears 

that  there  remains  a  surplus  of ilollars  in  the  hands 

of  the  said  administrator  after  payment  of  the  debts  of  said 
intestate,  and  the  expenses  of  settlement  of  his  estate. 

3-  O"    the    day    of    IQ--.,    a    decree    of 

distribution  was  made  by  this  court  wherein  and  wherebv  it 
was  ordered,  that  one-third  part  of  the  aforesaid  surplus  in 
the  hands  of  the  said  James  Doe,  administrator  as  aforesaid 
be  distributed  and  paid  to  your  petitioner,  and  that  the  said 
one-third  share  of  the  surplus  of  said  estate  to  which  vour 
petitioner  is  entitled,  as  aforesaid,  amounts  to dollars. 

4.  Your  petitioner  has  demanded  the  payment  of  the  afore- 
said sum  of dollars  from  the  said  James  Doe,  adminis- 
trator as  aforesaid,  at  the  same  time  tendering  him  a  proper 
refunding  bond,  but  the  said  James  Doe  has  neglected  and 
refused  to  pay  the  same. 

Your  petitioner  therefore  prays  that  a  decree  may  be  made 
by  this  court,  directing  the  said  James  Doe,  administrator  as 

aforesaid,  to  pay  the  aforesaid  sum  of    dollars   so 

due  to  your  petitioner  as  aforesaid,  and  that  the  said  James 
Doe,  and  the  said  Richard  Doe  may  be  cited  to  appear  and 
answer  the  premises  and  abide  such  decree  as  this  court  shall 
make  therein. 

Dated  Newark,  N.  J.,  William    Doe. 

■■■> 19- •• 

State  oe  New  Jersey,  | 
C()L•^•T^■  OF  Essex.       J 

\\  illiam  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 


1256  Probate  Law  and  Practice. 

contained  are  true  to  the  best  of  his  knowledge  and  beUef. 


>-  William   Doe. 


Subscribed  and  sworn  to  this~^ 
day  of , 

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  PubHc  of  N.  J. 
For  form  of  citation  see  Form  277 ;    for  form  of  answer 
see  Form  278. 


Form  281.     Decree  for  Payment  of  Distributive  Share. 

[See  Orphans'  Court  Act,  section  192,  page  730,  supra.] 

Essex  County  Orphans'  Court. 


In   the   matter  of   the   estate  of  |  On    Petition    for    Payment 
John  Doe,  deceased.  j  of  Distributive  Share. 

Decree  for  Payment  of 
Distributive  Share. 


Wilham  Doe,  having  filed  his  petition  for  the  recovery  of 
his  distributive  share  as  one  of  the  next  of  kin  of  John  Doe, 
late  of  the  County  of  Essex,  deceased,  and  citations  having 
been  issued  to  James  Doe,  administrator  of  said  estate  and  one 
of  the  next  of  kin,  and  to  Richard  Doe,  the  remaining  next  of 
kin  of  the  said  John  Doe,  deceased,  and  the  said  citation  having 
been  returned  duly  served  ;  and  the  court  having  examined  into 
the  matter  and  being  satisfied  that  the  said  James  Doe,  adminis- 
trator as  aforesaid,  has  settled  his  accounts,  and  that  the  same 
were  duly  allowed  by  this  court,  and  that  there  remains  a  sur- 
plus of dollars  in  the  hands  of  the  said  administrator 

after  payment  of  the  debts  of  the  said  John  Doe,  deceased, 
and  the  expenses  of  settlement  of  his  estate. 

And  it  further  appearing  that  by  a  decree  of  this  court  made 

on  the    day  of    ,   19.  . .,  it  was  ordered  that 

one-third  of  the  aforesaid  surplus,  after  certain  deductions 
therefrom  for  commissions  and  counsel  fees,  be  paid  and 
distributed  to  the  said  William  Doe,  and  that  the  one-third 
part  of  the  said  surplus  to  which  the  said  William  Doe,  is  en- 
titled, as  aforesaid,  amounts  to  the  sum  of   dollars, 


DiRECTioxs  AS  TO  I.w  i:st.mi:nts.  12^7 

and  that  the  said  William  Doe,  has  duly  demanded  the  i)ay- 

ment  of  the  aforesaid  sum  of dollars  from  the  said 

James  Doe,  administrator  as  aforesaid,  at  the  same  time 
tendering  a  proper  refunding  hond  therefor,  hut  that  the  said 
administrator  has  neglected  and  refused  to  pav  the  same. 

It  is  thereupon  on  the day  of ,  one  thousand 

nine  hundred  and ,  ordered,  adjudged  and  decreed  that 

there  is  due  to  the  said  William  Doe  from  the  aforesaid  estate 

the  sum  of   dollars,  with  interest  thereon  from  the 

day  of ,  19.  .  .,  and  it  is  further  ordered  that 

James  Doe.  the  aforesaid  administrator,  pay  the  said  sum  of 

dollars  to  the  said  William  Doe  forthwith  upon  the 

said  William  Doe  tendering  to  him  a  proper  refunding  hond 
therefor. 

W.  P.  M., 
Judge. 


DIRECTIONS  OF  COURT  AS  TO   INVESTMENTS. 

Form  282.  Petition  for  Directions  as  to  Investment  of  Funds  of 
Estate. 

[See  Orplians"  Court  Act,  section  136.  page  389.  supra.] 

Essex  County  Orpii.ans'  Court. 
In   the  matter  of  the   estate   of  ")  On  Petition  for  Directions 


I  Or 
j  as 


John  Doe,  deceased.  j  as  to  Investment  of  Funds. 

Petition. 

To  the  Orphans'  Court  of  the  County  of«Essex: 

The  petition  of  William  Doe  respectfully  shows  that: 
I.  He  is  the  trustee  of  the  trust  created  in  and  Ijy  the  last 
will  and  testament  of  John  Doc,  late  of  the  County  of  Ivssex, 

deceased,  and  has  in   his  hands  the   sum  of    dollars, 

which  he  is  required  in-  the  terms  of  the  said  will  to  retain 
for  an  indefinite  period  ;  and  the  estate  in  his  hands  would 
he  materially  henehted  hy  the  proper  investment  of  said  sum  at 
interest. 


1258  Probate  Law  and  Practici;. 

2.  One  X.  Y.,  of  the  City  of  Newark,  in  the  County  of 
Essex   and   State   of    New   Jersey,   is   wilHng   to   borrow   the 

aforesaid  sum  of   dollars  for  the  period  of    

years  at per  cent  interest,  and  ofifers,  as  security  there- 
for, his  bond  and  a  second  mortgage  on  his  house  and  lot  in 

the of   ,  which  premises  are  described 

as   follows:     {Jiere   insert  description   of  property.) 

The  aforesaid  premises  are  now  subject  to  a  mortgage  of 
dollars. 

3.  Petitioner  has  made  diligent  inquiry  among  persons  ac- 
quainted with  the  values  of  real  estate  in  the  vicinity  where  the 
above-described  property  is  situated  and  has  been  advised  that 
said  property  is  worth  the  sum  of dollars. 

4.  The  names  and  residences  of  the  persons  interested  in  the 
trust  fund  held  by  petitioner  as  aforesaid  are :    A.   B.,  who 

resides  at  No , Street,  in  the of , 

in  the  State  of ;  and  C.  D.  and  E.  F.,  who  both  reside 

at  No , Street,  in  the of ,  in 

the  State  of All  the  foregoing  are  of  full  age,  with 

the  exception  of  E.  F.,  who  is  a  minor  of  the  age  of  sixteen 
years,  and  resides  with  R.  F.,  his  father,  at  the  aforesaid 
address. 

.  5.  Due  notice  of  this  application  has  been  given  to  all 
persons  in  interest  (or  all.  persons  in  interest  have  duly  con- 
sented Jiereto  as  by  their  consent  hereunto  annexed  zvill  more 
fully  appear). 

Your  petitioner  therefore  prays  the  directions  of  the  court 
in  the  premises. 

Dated  Newark,  N.  J.,  ,,.  ^  ^ 

*^  William  Doe. 

, ,  i9--- 

State  oe  New  Jersey 


ss 

County  of  Essex. 


1 


William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  con- 


Directions  as  to  Ixvkstmexts.  1259 

tained   therein    arc    true   to    the   best    of    his    knowledge   and 
beUef. 

Subscribed  and  sworn  to  this "" 

day  of , 

^  TVT         1     XT    T    t    r        >  \\  ii.i.iAM  Doe. 

19  .  .  .,  at  Newark,  N.  J-,  before  [ 

me, 

J.  C.  F.. 

Notary  Public  of  X.  J. 

Annex  affidavits  of  two  persons  as  to  value  of  real  estate 
as  in  Form  155. 

Five  days'  notice  of  applications  of  this  character  must  be 
given  to  all  persons  in  interest  or  a  rule  to  show  cause  may 
be  taken  which  will  direct  the  method  by  which  it  shall  be 
served.  For  form  of  notice  see  Form  214:  for  form  of  rule 
to  show  cause  see  Form  213;  for  proof  of  service  see  Form 
38. 


Form  283.     Order  Directing  Investment  of  Funds  of  Estate. 

[See  Orphans'  Cnurl  Act,  section  130,  page  389.  supra.] 

Essex  County  Orphans'  Court. 

T     ^,  ,,         ,  ,,  .  .        f1   On  Petition  for  Directions 

In   the  matter  of  the   estate   of  ,       ^ 

T  ,      T->        J  1  >as    to    the    Investment    of 

John  Doe,  deceased.  I  ^^ 

J   Funds. 

Order. 

Upon  reading  and  filing  the  petition  of  William  Doe,  the 
trustee  of  the  trusts  created  in  and  by  the  last  will  and  testa- 
ment of  John  Doe.  deceased,  for  directions  as  to  the  invest- 
ment of  certain  moneys  of  said  estate,  and  the  court  having 
examined  into  the  matter  and  being  satisfied  that  the  securitv 
by  way  of  second  mortgage  offered  by  X.  Y..  is  insufiftcient  and 
that  it  will  not  be  for  the  best  interest  of  the  estate  to  loan 
the  funds  of  the  estate  upon  security  of  this  character. 

It  is  thereu])on,  upon  this day  of 19.  .  . , 

ordered  that  the  said  William  Doe  be  not  authorized  to  loan  to 

the  said  X.  Y.,  the  sum  of    dollars  ui)on   his  bond, 

secured  by  a  second  mortgage  on  said  premises  in  said  petition 
particularly  described. 

W.    I'.   M.. 

Judge. 


i26o  Probate  Law  and  Practice. 

GUARDIANSHIP. 

I.      LETTERS     OF     GUARDIANSHIP     OF     PERSON    AND 
ESTATE  OF  ORPHAN   MINOR. 

Form  284.     Petition  by  an  Orphan  over  Fourteen  Years  of  Age 
for   the  Appointment   of  a   Guardian. 

[See  Orphans"  Court  Act.  section  37.  page  747,  supra,  and  Orphan?" 
Court  Rule  13,  page  747.  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  guardianship  |  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  j  ment  of  Guardian. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  William  Doe,  who  resides  at  Number  .  . .  ., 

Street,  in  the of   in  the  County 

of  Essex  and  State  of  New  Jersey,  respectfully  shows  that: 

1.  Your  petitioner  is  an  orphan  of  the  age  of  fourteen  years 
and  upwards,  and  under  the  age  of  twenty-one  years,  to  wit: 
of  the  age  of  seventeen  years,  and  has  personal  property  of  the 
value  of dollars,  as  nearly  as  your  petitioner  can  ascer- 
tain, within  this  State,  and  is  seized  of  certain  real  property, 
the   income   whereof   amounts   to    dollars   annually. 

2.  The  names  and  residences  of  his  nearest  of  kin,  of  the 
persons  with  whom  he  resides  and  of  those  standing  in  loco 
parentis  to  your  petitioner,  are  as  follows :    A.  D.,  a  brother, 

residing  at  Number  .  .  .  . ,   ,  Street,  in  the   of 

,  in  the  County  of    ,  and  State  of    ; 

J.  D.,  a  brother,  residing  at  Number Street,  in 

the    of    \,    in   the    County   of and 

State  of  ....,  with  whom  your  petitioner  resides  and  who 
stands  in  loco  parentis  to  your  petitioner.  All  of  the  above 
named  are  of  full  age  with  the  exception  of  the  said  A.  D. 

Your  petitioner  therefore  prays  that  letters  of  guardianship 
of  his  person  and  property  be  granted  to  X.  Y.,  who  resides 


Guardianship  of  Minors.  1261 

at  Number Street,  in  the of , 

in  the  County  of and  State  of  Xew  Jersey. 

Dated    Newark,    N.    [., 

.  .  . ., ,  19. . .,  and 

signed   in    the  .presence  William  Doe. 

of, 

F.  G.  S.,  Jr., 

Surrogate. 


State  of  New  Jersev, 
County  of  Essex. 


i  ^j. 


J.  D.,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  has  read  the  foregoing  petition  of 
William  Doe,  and  that  he  of  his  own  knowledge  deposes  and 
says  that  the  things  therein  contained  are  true  to  the  best 
of  his  knowledge  and  belief. 

Deponent  further  says  that  he  has  personal  knowledge  of 
the  value  of  the  personal  estate  of  the  said  William  Doe,  and 
the  amount  of  the  income  from  any  real  estate  owned  bv  him. 

That  petitioner's  personal  estate  is  of  the  value  of 

dollars,  and  that  the  income  from  two  dwelling  houses  owned 

by   petitioner  amounts   to   the   sum   of    dollars 

annually. 


Subscribed  and  sworn  to  this" 
day  of  

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


J.  D. 


Form   285.      Order   Appointing    Guardian   for   an    Orphan    Above 
the  Age  of  Fourteen  Years. 

[See  Orphans'  Court  Act,  section  Z7,  page  747,  supra.] 

Essex  County  Surrogate's  CorKp. 

In  tlie  matter  of  the  guardianshi]!  "I  On    ]*etition    for    .Appuint- 
of  William  Doe,  a  minor.  i  nicnt  of  G.uardian. 

Order    .1  pl^oinliiKj    (iiiardiaii. 

William  Doe,  of  the of   in  the  County  of 

Essex  and  State  of  New  Jersey,  having  presented  his  petition 


1262  Probate;  Law  and  Practice. 

signed  in  the  presence  of  the  surrogate,  whereby  it  appears  that 
the  said  WilHam  Doe  is  an  infant  orphan  above  the  age  of 

fourteen  years,  and  prays  that  X.  Y.,  of  the ,  of , 

in  the  County  of  and  State  of  New  Jersey,  be  ap- 
pointed his  guardian,  and  it  further  appearing  by  the  affidavit 
of  J.  D.  annexed  to  said  petition  that  he  has  personal  knowl- 
edge of  the  value  of  the  personal  estate  of  the  said  William 
Doe  and  the  amount  of  the  income  from  any  real  estate 
belonging  to  him,  that  the  value  of  the  personal  estate  of  the 

said  William  Doe  is dollars  and  the  amount  of  the 

income  from  the  real  estate  belonging  to  him  is    

dollars  annually. 

It   is   thereupon   on   this    day   of    19.  •  . , 

ordered  that  guardianship  of  the  person  and  property  of  the 
said  William  Doe  be  committed  to  the  said  X.  Y..  and  that 
letters  of  guardianship  be  issued  accordingly  upon  the   said 

X.  Y.,  entering  into  bond  to  the  Ordinary  in  the  sum  of 

dollars  for  the  faithful  execution  of  his  office  according  to 
law,  which  bond  shall  be  approved  by  the  Surrogate. 

F.'  G.   S.,  Jr., 
Surrogate. 

For  form  of  bond  see  Form  292. 


Form  286.     Petition  by  Mother  for  Guardianship  of  Child  Under 
the  Age  of  Fourteen  Years. 

[See  Orphans'  Court  Act.  section  Ti~.  page  750,  supra,  and  Orphans' 
Court  Rule  13,  page  747,  supra.] 

EssKx  County  Surrogate's  Court. 

In  the  matter  of  the  guardianship  ")  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  J  ment  of  Guardian. 

Petition. 

To  F.  G.  S.,  Jr..  Surrogate  of  the  County  of  Essex : 

The  petition  of  Jane  Doe,  who  resides  at  No , 

Street,  in  the of in  the 

County  of  Essex  and  State  of  New  Jersey,  respectfully  shows 
that : 


Guardianship  of  Minors.  1263 

1.  Your  petitioner's  husband.  John  Doe.  late  of  the  County 
of  Essex  aforesaid,  lately  died,  leaving  a  child  William  Doe. 
an  orphan  minor,  under  the  age  of  fourteen  years,  to  wit : 
of  the  age  of  four  years,  and  without  having  disposed  of  the 
guardianship  of  said  orphan  minor,  and  that  said  orphan  minor 
is  possessed  of  personal  property  of  the  value,  as  nearly  as  your 

petitioner  can   judge,   of    dollars,   and   is   seized   of 

certain  real  estate,  the  income  whereof  amounts  to   

dollars  per  annum,  requiring  the  care  of  a  guardian. 

2.  The  names  and  residences  of  the  nearest  of  kin.  of  an\- 
persons  standing  in  loco  parentis  to  said  minor,  and  of  the 
persons  with  whom  he  resides,  are  as  follows :  your  petitioner, 
his  mother,  whose  residence  is  hereinbefore  stated  and  with 
whom  the  said  William  Doe  resides ;  John  Doe,  a  brother,  who 

resides  at  No , Street,  in  the of , 

in  the  County  of   and  State  of   and  Mary 

Roe,  a  sister  who  resides  at  No Street,  in  the 

of    in  the  County  of   and  State 

of   

All  of  the  above  named  are  of  full  age  with  the  exception 
of  John  Doe,  who  is  a  minor  of  the  age  of  nineteen  years. 

Your  petitioner  therefore  prays  that  letters  of  guardianship 
of  the  person  and  property  of  the  said  William  Doe  be  granted 
to  her  until  the  said  orphan,  after  arriving  at  the  age  of  four- 
teen, shall  choose  another  guardian  or  guardians. 

Dated  Newark,  N.  J.,  ^         ^ 

•^  Tane  Doe. 
, ,  i9--- 


State  of  New  Jersey 
County  oe  Essex 


Jane  Doe,  being  duly  sworn  upon  her  oath  according  to  law, 
deposes  and  says  that  she  is  the  ])etitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  her  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  personal  estate  of  said 
orphan  is dollars,  and  that  the  amount  of  the  income 

81 


1264  Probate  Law  and  Practice. 

of  two  certain  dwelling  houses  belonging  to  him  is 
dollars  annually. 

Subscribed  and  sworn  to  this^ 

day  of , 

19  .  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


>  Jane  Doe. 


Form  287.     Order  Appointing  Mother  Guardian. 

[See  Orphans'  Court  Act.  section  S7,  page  750,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  guardianship  ")  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  j  ment  of  Guardian. 

Order  AppointUig  Guardian. 

It  appearing  from  the  petition  of  Jane  Doe,  of  the 

of in  the  County  of ,  and  State  of , 

filed  herein,  that  John  Doe,  late  of ,  lately  died  leav- 
ing a  child,  William  Doe,  a  minor,  under  the  age  of  fourteen, 
to  wit ;  of  the  age  of  four  years,  and  without  having  dis- 
posed of  the  guardianship  of  said  child,  and  that  the  said 
petitioner  is  the  mother  of  said  child  and  prays  that  she  may 
be  appointed  the  guardian  of  said  minor,  and  it  further  appear- 
ing that  the  value  of  the  personal   estate  of   said  orphan   is 

dollars  and  the  amount  of  income  from  certain  real 

estate  belonging  to  him  is   dollars  annually. 

It   is   thereupon   on   this    day   of    ,    19..., 

ordered  that  the  guardianship  of  the  person  and  property  of 
said  William  Doe  be  committed  unto  the  said  Jane  Doe,  his 
mother,  as  aforesaid,  until  the  said  orphan,  after  arriving 
at  the  age  of  fourteen,  shall  choose  another  guardian  or 
guardians,  and  that  letters  of  guardianship  be  granted  accord- 
ingly upon  the  said  Jane  Doe  entering  into  bond  to  the  Ordi- 
nary in  the  sum  of dollars  conditioned  for  the  faith- 
ful execution  of  her  office  according  to  law,  which  bond  shall 
be  approved  by  the  surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  bond  see  Form  292. 


Guardianship  of  ^Minors.  1265 

Form  288.     Petition  by  Next  of  Kin  for  Guardianship  of  Infant 
Under  the  Age  of  Fourteen  Years. 

[See  Orphans'  Court  Act.  section  2>7'  page  750,  supra,  and  Orphans' 
Court  Rules  13  and  14,  pages  747  and  752,  supra. ) 

EssKx  County  Surrogate's  Court. 


In  the  matter  of  the  guardianship  "|  On    Petition    for   Appoint- 
of  \\'iniam  Doe,  a  minor.  j  ment  of  Guardian. 

Petition. 


To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The   petition   of    Richard   Doe,   who   resides   at    No , 

Street,  in  the of ,  in  the  County  of 

and  State  of ,  respectfully  shows  that : 

1.  John    Doe,    late    of    the    of    in    the 

County  of  Essex  and  State  of  New  Jersey,  lately  died  without 
disposing  of  the  guardianship  of  his  child,  William  Doe.  who 
is  an  orphan  minor  under  the  age  of  fourteen  years,  to  wit : 
of  the  age  of  six  years. 

2.  The  names  and  residences  of  the  nearest  of  kin,  of  any 
persons  standing  in  loco  parentis  to  said  orphan,  and  of  the 
persons  with  whom  he  resides,  are  as  follows :  yoiu^  i:)etitioner, 
a  brother,  whose  residence  is  hereinabove  given ;    and  James 

Doe,  a  brother,  who  resides  at  No , Street,  in 

the    of    ,  in  the  County  of    and 

State  of   The  said  William  Doe  resides  with  your 

petitioner  at  his  residence  hereinbefore  named  and  your  pe- 
titioner stands  in  loco  parentis  to  him.  All  of  the  above  named 
are  of  full  age. 

3.  The  said  William  Doe  is  possessed  of  personal  property 
of  the  value  as  nearly  as  your  petitioner  can  ascertain,  of 
dollars,  and  is  seized  of  real  estate  the  income  where- 
of amounts  to   dollars  per  annum. 

4.  All  of  the  ]jersons  entitled  to  the  guardianshij^  of  said 
orphan  have  renounced  their  right  of  guardianship  and  re- 
quested the  ajjpointment  of  your  petitioner  (or  due  notice  of 
this  application  has  been  given  to  all  persons  entitled  to  the 

>    guardianship  of  said  orphan). 


1266  Probate  Law  and  Practice. 

Your  petitioner  therefore  prays  that  letters  of  guardianship 
of  the  person  and  property  of  the  said  WilHam  Doe  be  granted 
to  him  until  the  said  orphan,  after  arriving  at  the  age  of 
fourteen  years,  shall  choose  another  guardian  or  guardians. 

Dated  Newark,  N.   }.,  ^  ^ 

Richard   Doe. 
, I9--- 


State  of  New  Jersev,  | 
County  of  Essex.       j 

Richard  Doe,  being  duly  sworn  upon  his  oath  according  to 
law,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 
Deponent  further  says  that  the  value  of  the  personal  estate  of 

said  orphan  is   dollars,  and  that  the  amount  of  the 

income  of   two  certain   dwelling  houses  belonging  to  him   is 
dollars  annuallv. 


Richard  Doe. 


Subscribed  and  sworn  to  this"^ 

day  of , 

19  . .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 
For  form  of  notice  of  application  see  Form  289;    for  proof 
of  service  of  notice  see  Form  ;^S' ;    for  form  of  renunciation 
see  Form  290. 


Form  289.     Notice  of  Next  of  Kin  of  Application  for  Appoint- 
ment of  a   Guardian  for  an   Infant   Under   Fourteen. 

[See  Orphans'  Court  Act,  section  37.  page  750,  supra,  and  Orplian?" 
Court  Rule  14,  page  752,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  guardianship  )  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  j  ment  of  Guardian. 

Notice. 

To  James   Doe,  brother  of   William   Doe,   an   orphan   minor 
under  the  age  of  fourteen  years : 


GUAKDIANSIIIP  Ol'   Ml.NOKS.  1  jGj 

You  are  herein-  notihed  that  on   the day 

of    ,   19.  .  .,  at  lo  a.  m.,  at  the  Court   House  in  the 

City  of  Newark,  I  shall  apply  to  the  Surrogate  of  the  County 
of  Essex  to  be  appointed  guardian  of  the  person  and  property 
of  the  said  William  Doe. 

Dated  Newark,  N.  J., 
,  I9--- 

IvRIIAKU   DOK. 

For  proof  of  service  see  Form  38. 


Form  290.     Renunciation  of  Right  of  Guardianship. 

[See  Orphans'  Court  Act,  section  37.  page  750,  supra,  and  Orphans' 
Court  Rule  14.  page  752,  supra.] 

I,  James  Doe,  brother  of  William  Doe,  an  ori)han  under  the 
age  of  fourteen  years,  hereby  renounce  all  right  and  claim  to 
guardianship  of  the  person  and  property  of  the  said  William 
Doe  and  hereby  consent  to  the  appointment  of  Richard  Doe  as 
guardian  of  the  said  minor. 

Dated  Newark,  N.  J.,  James  Doe. 
' 19-.. 


Form  291.     Order  Appointing  Next  of  Kin  Guardian  of  an  Infant 
Under  Fourteen. 

[See  Orphans'  Court  .Act.  section  37.  page  ■/-,().  sui)ra.  ami  Orphans' 
Court  Rule  14.  page  752.  supra.] 

Essex  County  Surrog.\te's  Court. 

In  the  matter  of  the  guardianship  ")  On    Petition    for   Ajjpoint- 
of  William  Doe,  a  minor.         j  ment  of  Guardian. 

Order  Appoiiiiiiin  (iitdrdidii. 

It  appearing  from  the  jietition  of  Kichard  Doe,  of  the 

of ,  in  the  County  of and  vState  of  

filed   herein,   that   said   petitioner   is   one   of   the   brothers   of 
William  Doe,  a  minor  under  the  age  of  fourteen  years,  and 


1268  Probate  Law  and  Practice. 

that  due  notice  .of  this  apphcatiou  has  been  given  to  all  of  the 
next  of  kin,  or  parties  by  law  entitled  to  the  guardianship  of 
said  minor,  as  well  as  to  all  persons  standing  in  loco  parentis 
to  him,  and  also  to  the  persons  with  whom  said  minor  resides 
(or  that  all  the  persons  entitled  by  Uuv  to  the  guardianship 
of  said  orphan,  the  persons  standing  in  loco  parentis  to  him, 
and  the  persons  zvith  whom  said  minor  resides,  have  renounced 
their  right  of  guardianship  and  requested  the  appointment  of 
your  petitioner),  and  it   further  appearing  that  the  value  of 

the  personal  estate  of  said  orphan  is dollars,  and  the 

amount  of  income  from  certain  real  estate  belonging  to  him 

is   dollars  annually,  and  the  Surrogate  having  made 

inquiry  into  the  circumstances  of  the  case,  and  being  satisfied 
that  the  said  Richard  Doe  is  a  suitable  person  to  be  appointed 
guardian ; 

It   is   thereupon   on   this    day   of    ,    19.... 

•ordered  that  the  guardianship  of  the  person  and  property  of 
the  said  William  Doe  be  committed  to  the  said  Richard  Doe 
until  the  said  orphan,  after  arriving  at  the  age  of  fourte«?li, 
shall  choose  another  guardian  or  guardians,  and  that  letters 
of  guardianship  be  granted  accordingly  upon  the  said  Richard 

Doe  entering  into  bond  to  the  ordinary  in  the  sum  of 

dollars  conditioned  for  the  faithful  execution  of  his  office 
according  to  law,  with  sureties  to  be  approved  by  the  Surro- 
gate. F.  G.  S.,  Jr., 

Surrogate. 

For  form  of  bond  see  Form  292. 


Form  292.     Guardianship  Bond. 

[See  Orphans'  Court  Act,  section  49,  page  315.  supra.] 

Know  all  men  by  these  presents,  That  We,  A.  B.,  C.  D. 

and  E.  F.,  all  of  the   of    ,  in  the  County  of 

,  and  State  of  New  Jersey,  are  held  and  firmly  bound 

unto  the  Ordinary  of  the  State  of  New  Jersey,  in  the  sum  of 

dollars,  lawful  money  of  the  United  States,  to  be  paid 

to  the  said  Ordinary  as  aforesaid,  his  successors,  or  assigns, 
to  which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  heirs,  executops  and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

J 


Guardianship  of  Minors.  1269 

Sealed  with  our  seals  and  dated  the dav  of , 

one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such  that  whereas  the 
surrogate  of  the  said  County  of  Essex  has  appointed  the  said 
A.  B.,  to  be  guardian  of  the  person  and  property  of  William 
Doe,  an  orphan  minor  under  the  age  of  fourteen  vears ;  now 
therefore  if  the  said  A.  B.,  shall  faithfully  execute  his  said 
office  of  guardian,  then  this  obligation  shall  be  void,  other- 
wise to  remain  in  full  force  and  effect. 

Signed,  sealed  and  delivered  ^  -r^  /"  ^ 

•     ,,  r  >  CD.  (l.  s.) 

m  the  presence  of,  (  ^  ^  )        ■^ 

J  E.  F.  (l.  s.) 

Annex  Justification  of  Sureties  see  Form  7. 


Form  293.    Letters  of  Guardianship  Issued  by  the  Orphans'  Court. 

[See  Orphans'  Court  Act.  section  44.  3  Comp.  Stat.,  p.  38-7.] 

Essex  County  Orphans'  Court. 


State  of  New  Jersev, 
County  of  Essex. 


i  ss. 


I,   F.   G.    S.,   Jr.,    Surrogate   of   the   County   of    Essex,   do 

certify   that   on   the    day   of    ,    19...,   the 

Orphans'  Court  of  the  County  of  Essex  admitted    

of    ,  as  guardian   of   the  person  and  property   of 

,  being  a  minor the  age  of  fourteen  years. 

Witness  my  hand  and  seal  of  office  this    day  of 

,  nineteen  hundred  and   

(l.  s.)  F.  G.  S.,  Jr., 

Surrogate. 


Form    294.      Letters    of    Guardianship    Issued    by    the    Surrogate. 
[See  Orphans'  Court  .-Vet.  section  44,  3  Comp.  Stat.,  p.  3827.] 

Essex  County  Surroc.ate's  Court. 
State  of 


New  Jersey,  | 
:'  OF  Essex.       j 

T,   F.   G.    S.,   Jr.,    Surrogate   of   the   County   of   Essex,   do 


County 


12/0  Probate  Law  and  Practice.  ' 

certify  that  on  the day  of ,  19.  .  .,  1  admitted 

,  of ,  as  guardian  of  the  person  and  property 

of ,  beng  a  minor   the  age  of  fourteen 

years. 

Witness   my   hand  and   seal   of   office   this    day   of 

,  nineteen  hundred  and 

(L.  s.)  F.  G.  S.,  Jr., 

Surrogate. 


II.    ON  ESTATE  OF  MINOR  WHOSE  FATHER  IS  LIVING. 

Form  295.     Petition  for  Appointment  of  Guardian  of  Estate  of 
a  Minor  During  Lifetime  of  Father. 

[See  Orphans'  Court  Act,  section  40,  page  754,  supra,  and  Orphans'- 
Court  Rules  13  and  14.  pages  747  and  752,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  guardianship  )  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  J  ment  of  Guardian. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  John  Doe,  who  resides  at  No , 

Street,  in  the of ,  in  the  County  of  Essex, 

and  State  of  New  Jersey,  respectfully  shows  that: 

I.  Your  petitioner  is  the  father  of  William  Doe,  an  infant 
of  the  age  of  seventeen  years  who  has  become  possessed  of 

and  entitled  to  personal  estate  of  the  value  of dollars, 

and  who  is  also  seized  of  real  estate,  the  income  from  which 

amounts    to    dollars    annually.      The    said   William 

Doe  resides  with  your  petitioner  at  the  address  hereinbefore 
stated. 


GUARDIAXSHIP  OF   MlNORS.  I  27  1 

Your  petitioner  therefore  prays  that  he  may  be  appointed 
guardian  of  the  estate  of  the  said  infant,  Wilhani  Doe. 

Dated  Xewark,  X.   J.. 

,„     "  John   Doe. 
' •  ^  y  •  •  • 


State  of  New  Jer 
CouxNTv  OF  Essex 


RSEY,  I 

X.  j 


John  Doe,  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  personal  estate  of 

the  said  William  Doe  is dollars,  and  that  the  amount 

of  the  income  from  the  real  estate  owned  by  him  is 

dollars  per  annum. 

Subscribed  and  sworn  to  this" 

day  of   ,  19.  . 

at  Newark,  N.  J.,  before  me,         J  John  Doe. 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form   296.      Order   Appointing   Guardian    of    Estate    of   a    Minor 
During  the  Lifetime  of  the   Father. 

[See  Orphans'  Court  Act.  section  40,  page  754,  sui)ra,  and  Orplians' 
Court  Rules  13  and  14,  pages  747  and  752.  supra.] 

Essex  County  Surrog.\te's  Court. 

In  the  matter  of  the  guardianship  "j  On    Petition    for   Appoint- 
of  William  Doe,  a  minor.  j  ment  of  Guardian. 

Order  Appointbig  Cuardian. 

It  appearing  from  the  petition  of  John  Doe,  of  the 

of ,  in  the  County  of  Essex  and  State  of  New  Jersey, 

that  the  said  John  Doe  is  the  father  of  William  Doe,  an  infant 
under  the  age  of  fourteen  years ;  that  the  said  William  Doe 
has  become  possessed  of  and  entitled  to  per.sonal  property  in 

the  said  County  of  Es.sex  to  the  value  of dollars  and 

also  of  real  estate,  the  income  from  which  amounts  to 

dollars  annually,  and  that  the  said  John  Doe  prays  that  he  may 


1272  Probate  Law  and  Practice. 

be  appointed  guardian  of  tlie  estate  of  the  said  William  Doe. 

It   is   thereupon   on   this    day   of    ,    IQ---, 

ordered  that  the  said  John  Doe  be  appointed  guardian  of  the 
estate  of  the  said  William  Doe,  and  that  letters  of  guardian- 
ship be  issued  to  him  accordingly  upon  the  said  John  Doe 
entering  into  bond  to  the  ordinary  of  the  State  of  New- 
Jersey  in  the  sum  of    dollars,   with   sureties   to  be 

approved  by   the   said   surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  bond   (from  which  the  words  "of  the  person 
and"  should  be  stricken)  see  Form  292. 


III.  TESTAMENTARY  GUARDIANSHIP. 

Form  297.     Petition  for  Letters  of  Testamentary  Guardianship. 

[See  2  Comp.  Stat.,  page  2627,  section  i.  page  743.  supra.] 

Essex  County  Surrogate's  Court. 

.     ,  .~^   On     Petition     for     Letters 

In  the  matter  of  the  estate  of,^^          ^        ^        ,. 

^,..,,.       .^             .  Vof  Testamentary  Guardian- 

Wnliam  Doe,  a  mmor.  1    .  . 

Petition. 
To  the  Surrogate  of  the  County  of  Essex : 

The  petition  of   X.   Y.,   who   resides   at   No 

Street,  in  the of in  the  County  of  Essex  and 

State  of  New  Jersey,  respectfully  shows  that : 

1.  John   Doe,   late  of   the   County   of   Essex   and   State   of 

New  Jersey,  departed  this  life  on  the day  of , 

19.  .  .,  leaving  a  last  will  and  testament,  which  has  been  duly 
admitted  to  probate,  and  recorded  in  the  office  of  the  Surro- 
gate of  the  County  of  Essex,  wherein  and  whereby  he  nomi- 
nated and  appointed  your  petitioner  guardian  of  the  aforesaid 
William  Doe,  his  minor  child. 

2.  Jane  Doe,  the  mother  of  said  infant,  has  duly  consented 
to  the  appointment  of  your  petitioner  as  guardian,  in  a  writing 


GUARDIAXSIIll'  OF   MiXtiKS.  127:5 

executed  prior  to  the  probate  of  the  will  of  the  said  John  Doe. 
deceased  {or  the  mother  of  said  infant  is  dead). 

3.  The  personal  estate  to  which  said  minor  will  be  entitled 

will  not  exceed  in  value  the  sum  of    dollars;    the 

income  from  his  real  estate  amounts  to  the  sum  of 
dollars  per  year :    and  the  said  John  Doe  in  and  by  his  last 
will  and  testament  did  not  expressly  provide  that  your  pe- 
titioner should  serve  as  the  guardian  of  said  minor  without 
bonds. 

Your  petitioner  therefore  prays  that  letters  of  testamentarv 
guardianship  of  the  person  and  estate  of  the  said  William  Doc. 
a  minor  as  aforesaid,  may  be  issued  to  him. 

Dated  Newark.  X.    [.. 

X.  Y. 
'  i9--- 


State  of  New  Jersev, 
County  of  Essex. 


■■} 


X.  Y.,  of  full  age,  being  duly  sworn  upon  his  oath  accord- 
ing to  law,  deposes  and  says  that  he  is  the  petitioner  in  the 
foregoing  petition  named  and  that  the  matters  and  things 
therein  contained  are  true  to  the  best  of  his  knowledge  and 
belief.     Deponent  further  says_  that  the  value  of  the  personal 

estate   of   the   said   minor   is    dollars   and   that   the 

amount  of  income  from  the  real  estate  owned  by  him  is 

dollars  per  annum. 


Subscribed  and  sworn  to  this"^ 

day  of    ,  [ 

19.  ...  at  Newark,  N.  J.,  before 
me, 


X.  Y 


J.  C.  F., 

Notarv  Public  of  N.   }. 


Form  298.     Consent  of  Mother  to  Appointment  of  Testamentary 
Guardian. 
[See  2  Comp.  St.it..  page  2627,  section  i,  page  743.  supra.] 

Essex  County  Sukuocate's  Court. 


1274  Probate  Law  and  Practice. 

^       ,  ^     ,  ^"^   On     Petition     for     Letters 

In  the  matter   of   the   estate   of        ^  ^,    ^  ^         „        ,. 

^^...,.         „  .  vof  1  estamentary  CTiiardian- 

Wilham  Doe,  a  mmor.  (     ,  . 

J  ship. 

Consent  of  Mother. 

John  Doe,  late  of  the of ,  in  the  County  of 

Essex  and  State  of  New  Jersey,  deceased,  having  by  his  last 

will  and  testament  appointed  X.  Y.,  of  the  .......  of , 

in  the  County  of ,  and  State  of ,    guardian  of 

the  person  and  property  of  his  infant  child,  William  Doe. 

Now,  therefore,  I,  Jane  Doe,  widow  of  the  said  John  Doe 
and  mother  of  the  said  William  Doe,  do  hereby  consent  to  the 
appointment  of  the  said  X.  Y.,  as  guardian  of  the  person  and 
property  of  the  said  William  Doe. 

Dated  Newark,  N.  J.,  Jane  Doe. 
, ,  I9--- 

Signed   and   acknowledged   by   the   said   Jane    Doe   on    the 

day  of    ,   19.  .  • ,  in  the  presence  of  us,  who 

were  both  present  at  the  same  time,  and  who  have  hereunto 
subscribed  our  names  as  witnesses  in  the  presence  of  the  said 
Jane  Doe. 

A.  B. 
CD. 


State  of  New  Jersey 
County  of  Essex 


'  \  ss. 


A.  B.  and  C.  D.,  being  severally  duly  sworn  upon  their  oaths, 
each  for  himself  deposes  and  says,  that  the  said  A.  B.  and 
C.  D.  were  both  present  at  the  same  time,  and  saw  Jane  Doe, 
in  the  foregoing  consent  named,  sign  the  said  consent  and 
heard  her  acknowledgment  that  the  same  was  her  free  act  and 
deed  on  the  day  of  ,  19.  . .,  and  that  there- 
upon the  said  A.  B.  and  C.  D.  subscribed  their  names  there- 
to as  witnesses  in  the  presence  of  the  said  Jane  Doe. 

Subscribed  and  sworn  to"  this"^  .    ■„ 

.O^inw. .   day  of    ,  I 

19.  . .,  at  Newark,  N.  J.,  before  |  p  -pv 

me,  J  ' 

J.  C.  F., 

Notary  Public  of  N.  J. 


i 


Guardianship  of  Minors.  12 


/  .-^ 


This  consent  must  be  executed  and  acknowledged  prior  to 
the  probate  of  the  will  appointing  the  guardian. 


Form  299.     Acceptance  of  Guardianship. 

[See  Orphans'  Court  Act.  section  50.  page  746,  supra.) 

Essex  County  Surrogate's  Court. 

In   the  matter   of   the  estate   of]  0»     Petition     for     Letters 
William  Doe.  a  minor.  T    ^^^^amentary  Guardian- 

J   ship. 

Acceptance. 

I.  X.  X.,  of  the    of    ,  in  the  County  of 

aiicl  State  of ,  having  been  appointed  in  and 

by  the  last  will  of  John  Doe,  deceased,  late  of  the of 

,  Essex  County,  Xew  Jersey,  guardian  of  the  person 

and   property   of   his   infant   child.    William   Doe,   do   hereby 
declare  my  acceptance  of  the  said  guardianship. 

Dated  Newark,  N.  J.,  " 

,  19.  .  . ,  and  signed  in  the 

presence   of    F.   G.    S.,   Jr., 

Surrogate. 

This  acceptance  must  be  executed   in   the  presence  of  the 
Surrogate. 


>  X.  Y. 


Form  300.     Order   Granting  Letters  of  Testamentary   Guardian- 
ship. 

[See  2  Comp.  Stat.,  page  2627,  section   i.  page  743.  supra:    and  Or^ 
phans'  Court  Act,  section  50,  page  746.  supra.] 

Essex  County  Surrogate's  Court. 

T     4.1  xi.         r  ^1  .  .        r^    ^^'1   petition   for  Letters  (if 

in  the  matter  of  the  estate  of  ' 

wj-u-         r\  •  y       J  estanicntar\-  Guardian- 

William  Doe,  a  minor.  I  ,  • 

J         ship. 

Order  Granting  Letters  of 
Testamentary  Guardian- 
ship. 

John  Doe.  late  of  the   of in  the  County 


1276  Probate  Law  and  Practice. 

of  Essex  and  State  of  New  Jersey,  deceased,  having  by  his 
last  Will  and  Testament,  which  has  been  duly  proved  and 
recorded  in  the  office  of  the  Surrogate  of  the  County  of  Essex, 

appointed  X.  Y.,  of  the of  in  the  County 

of    ,  and  State  of    ,  guardian  of  his  infant 

child,  William  Doe,  and  it  having  been  duly  proved  at  the 
time  of  the  probate  of  said  will  that  Jane  Doe,  the  mother  of 
said  child,  had  duly  signed  and  acknowledged  her  consent  to 
said  appointment,  (or  and  it  appearing  that  the  mother  of  said 
child  is  dead);  and  the  said  X.  Y.  having  appeared  before 
the  Surrogate  and  declared  his  acceptance  of  the  said  guardian- 
ship, and  it  appearing  that  testator  in  and  by  his  said  will  did 
not  expressly  provide  that  the  said  X.  Y.  should  serve  as 
guardian  without  bonds,  and  that  the  value  of  the  personal 

estate  of  the  said  minor  is dollars,  and  the  amount  of 

income  from  certain  real  estate  belonging  to  him  is 

dollars. 

It   is   thereupon   on   the    day  of    IQ-  •, 

ordered  that  letters  of  guardianship  of  the  person  and  prop- 
erty of  the  said  William  Doe  be  granted  to  the  said  X.  Y.. 
upon  his  entering  into  bond  to  the  ordinary  for  the  faithful 

execution  of  his  office,  in  the  sum  of   dollars,  with 

sureties  to  be  approved  bv  the  Surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 
For  form  of  bond  see  Form  301. 


Form  301.    Bond  of  Testamentary  Guardian. 

[See  Orphans'  Court  Act.  section  50.  page  746.  supra.] 

Know  all  men  by  these  presents.  That  We,  X.  Y.,  princi- 
pal, and  C.  D.  and  E.  F..  sureties,  all  of  the  City  of  X^ewark.  in 
the  County  of  Essex  and  State  of  Xew  Jersey,  are  held  and 
boimd  unto  the  Ordinary  of  the  State  of  Xew  Jersey,  in  the 
sum  of dollars,  to  be  paid  to  the  sai"d  Ordinary,  his  suc- 
cessors and  assigns  :    to  which  jiayment  well  and  trulv  to  be 


i 


Guardianship  of  ]\Iixors.  1277 

made  we  bind  ourselves,  and  each  of  us.  for  ourselves,  jointly 
and  severallv.  our  and  each  of  our  heirs,  executors  and  admin- 
istrators. 

Sealed  with  our  seals  and  dated  this day  of 

,  i9--- 

The  condition  of  this  obligation  is  such  that  whereas  John 

Doe,  late  of  the  City  of  Newark,  in  the  County  of  Essex  and 
State  of  New  Jersey,  did  in  and  by  his  last  will  and  testament, 
duly  proved  and  recorded,  appoint  the  above-named  X.  Y. 
to  be  the  guardian  of  his  child,  William  Doe,  a  minor ;  and 
whereas,  the  said  X.  Y.  has  appeared  before  the  Surrogate 
of  the  County  of  Essex  and  accepted  the  said  guardianship. 

Xow,  therefore,  if  the  said  X.  Y.  shall  faithfully  execute 
his  office  as  guardian,  as  aforesaid,  then  this  obligation  shall 
be  void,  otherwise  to  remain  in  full  force  and  etifect. 

Signed,  sealed  and  delivered  '   ^' 

in  the  presence  of  f  ^'  t^       / '     "( 

J  CD.     (l.  s.) 

Justitication  of  the  sureties  on  the  bond  should  lie  annexed 
thereto.     See  Form  7. 


Form  302.  Letters  of  Testamentary   Guardianship. 

[See  Orphans'  Court  Act,  section  45,  3  Comp.  .Stat.,  p  3828.] 

ESSKX    CorxTV    SfKK<^i".ATK's    CoiRT. 

State  of  X: 


'.v^\  Jersey,  | 
)F  Essex,      j 


ss. 
County  of  ^ 

To  ALL  TO  Whom  These  Presents  Shall  Come  Greeting: 

Whereas,    late   of  the  County  of    , 

in  the  State  of ,  in  and  by  his  last  will  and  testament, 

duly  proved  Ijefore  the  Surrogate  of  the  County  of , 

did  appoint    to  be  guardian  of  the  person  and 

property  of   his  child,  an  infant,  under  the  age  of 

twenty-one  years ;   and  whereas,  the  said has  accepted 

the    said    a])pointment    and    entered    into    bond    according    to 
law  ;   therefore. 


1278  Probate  Law  and  Practice. 

I,  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of   ,  do 

hereby  certify  that  the  said  is  duly  authorized 

to  execute  the  said  trust  according  to  law  and  the  terms  ot 
the  said  last  will  and  testament. 

In  witness  whereof,  I  have  hereunto  set  my  hand 

and  seal  of  office,  this day  of , 

(l.  S.)  a.  D.,  nineteen  hundred  and    

F.  G.  S.,  Jr., 
Surrogate. 


IV.     NON-RESIDENT  MINORS. 

Form  305.    Petition  by  Non-Resident  Orphan  for  Appointment  of 
Guardian. 

[See  Orphans'  Court  Act.  section  41.  page  748,  supra,  and  Orphans' 
Court  Rule  13,  page  747,  supra.] 

Essex  County  Surrogate's  Court. 


In  the  matter  of  the  guardian-  |  On  Petition  for  Letters  of 
ship  of  William  Doe,  a  minor.  J       Guardianship. 


Petition  By  Non-Residoit  Minor. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex : — 

The  petition  of  William  Doe,  who  resides  at  No , 

street  in  the of ,  in  the  County  ot 

and  State  of  New  York,  respectfully  shows  that : — 

1.  Your  petitioner  is  an  infant  orphan  of  the  age  of  four- 
teen years  and  upwards,  to  wit ;  of  the  age  of  seventeen 
years  and  resides  out  of  the  State  of  New  Jersey,  to  wit ;  at 
the  address  hereinbefore  mentioned. 

2.  Your  petitioner  has  personal  property  within  the  County 
of  Essex  aforesaid,  of  the  value,  as  nearly  as  he  can  ascertain 

of   dollars,  and  is  seized  of  real  estate  in  the  State 

of  New  Jersey,  the  income  whereof  amounts  to dol- 
lars annually ;    the  nearest  of  kin  of  your  petitioner  are  his 

brothers  James  and  John  Doe,  who  reside  at  No 

Street,  in  the  City  of  New  York,  in  the  County  and 

State   of    New  York ;    and  your  petitioner   resides   with   his 


Guardianship  of  Minors. 


12/9 


brother  James  at  the  aforesaid  address,  and  his  said  brother 
stands  in  loco  parentis  to  him. 

Your  petitioner  therefore  prays  that  X.  Y..  of  the 

of in  the  County  of  Essex  and  State  of  New  Jersey, 

be  appointed  his  guardian  within  this  State. 


Dated   19.  .. 

Signed  in  the  presence  of 

Judge   of   the    Court  of 

the   City.   County   and   State   of 
Xew  York. 


\\'lLLIA.M  DoK. 


State  of  Xew  York,  County 
OF  Xew  York. 


ss. 


James  Doe,  being  duly  sworn  according  to  law,  deposes 
and  says  that  he  is  the  brother  of  William  Doe,  the  peti- 
tioner in  the  foregoing  petition ;  that  he  has  personal  knowl- 
edge of  the  value  of  the  real  and  personal  property  of  his 
said  brother.  William  Doe.  and  that  the  value  of  his  personal 

property  will  not  exceed  the  sum  of dollars, 

and    that    the    income    from    his    real    property    amounts    to 
dollars  per  year. 


> 


James  Doe. 


Subscribed    and    sworn    to    this"^ 

day  of ,  19.  ., 

at   before  me. 

O.  Z., 
X'otary  Public  of  the  State  of 
N.  Y. 


The  abo\e  petition  must  be  signed  by  the  orphan  in  the 
presence  of  a  judge  of  a  court  of  record  in  the  state,  terri- 
tory or  country  in  which  such  orphan  may  be,  and  acknowl- 
edged before  said  judge  in  the  same  manner  as  deeds  are  re- 
quired to  be  acknowledged  in  this  State :  for  form  of  acknowl- 
edgment, see  Form  Sa. 

If  the  orphan  is  out  of  the  Ignited  States,  the  petition 
must  be  signed  and  acknowledged  by  such  orphan  before  a 
public  ambassador,  minister,  consul,  vice-consul,  etc.,  of  the 
82 


i28o  Probatk  Law  and  Practice. 

United   States   in   the   country   where   such   orphan   is   at  the 
time  of  signing  such  petition. 


Form    304.     Order      Appointing      Guardian      for      Non-Resident 
Orphan. 

[See  Orphans'  Court  Act.  section  41,  page  748,  supra.] 

Essex  County  Surrogate's  Court. 

In  the  matter  of  the  guardian-  |  On  Petition  for  Letters  of 
ship  of  Wilham  Doe,  a  minor,  j   Guardianship. 

Order  Appointing  Guardian. 

Wilham  Doe,  of  the   of   ,  in  the  County 

of    and   State  of   New  York,  having  presented  his. 

petition  duly  signed  and  acknowledged  in  the  presence  of  a 
judge  of  a  court  of  record  of  the  State  of  New  York,  wherebv 
it  appears  that  the  said  William  Doe  is  an  infant  orphan  of 
the  age  of  fourteen  years  and  upwards,  residing  out  of  the 
State  of   New  Jersey,  and   that  he  is  possessed  of  personal 

propert}'  within  this  State  to  the  value  of dollars, 

and  that  he  is  seized  of  real  estate  within  this  State  the  in- 
come whereof  amounts  to  the  sum  of    dollars 

annually,  and  prays  that  N.  Y.,  of  the of , 

in  the  County  of  Essex  and  State  of  New  Jersey,  be  appointed 
his  guardian. 

It  is  thereupon  on  this    day  of    19.  • , 

ordered  that  the  said  X.  Y.,  be  appointed  guardian  of  the  said 
William  Doe,  and  that  letters  of  guardianship  issue  to  him 
accordingly  upon   his  entering  into  bond  to  the  ordinary  of 

the   State  of   New   Jersey,   in   the  sum   of    dollars, 

with  sureties  to  be  approved  by  the  said  surrogate. 

F.  G.  S.,  Jr., 
Surrogate. 


Form   305.      Petition   for   Appointment   of    Special    Guardian   for 
Property  of  Non-Resident  Minor. 

[See  Orphans'  Court  Act,  section  43,  page  756.  supra,  and  Orphans' 
Court  Rules  13  and  14.  pages  747  and  752.  supra.] 

Essex  County  Surrogate's  Court. 


Gi'ARDiAxsHip  OF  Minors.  12RT 

"^    On    I^etition    for    the    Ap- 


In  the  matter  of  the  guardian- 
ship of  John  Doe,  a  minor. 


l)ointment  of  Guardian  for 
Property  of  Xon-Resident 
Minor. 

Petition. 


To  F.  G.  S..  Jr..  Surrogate  of  the  County  of  Esse.x : 

The  petition  of  W'iUiam  Doe.  who  resides  at  Xo.   

Street,  in  the  City  of in  the  County  of 

and  State  of  New  York,  respectfully  shows  that : 

1.  John  Doe,  a  minor  of  the  age  of  fifteen  years,  the 
brother  of  your  petitioner,  resides  with  him.  and  is  seized  of 
certain  real  estate  in  the  City  of  Newark,  in  the  County  of 
Essex  and  State  of  Xew  Jersey,  known  and  designated  as  Xo. 

,   Street,  and  consisting  of  a  ])arcel  of 

land  with  a  dwelling  house  thereon,  the  income  from  which 

amounts  to  the  sum  of   dollars  per  annum,  and  is 

also  possessed  of  certain  personal  property  within  the  County 
of  Esse.x  and  State  of  Xew  Jersey  aforesaid,  of  the  \alue  of 
dollars. 

2.  The  next  of  kin  and  persons  entitled  to  the  guardian- 
ship of  the  said  John  Doe  are  your  petitioner,  a  brother,  whose 
place  of  residence  is  hereinabove  stated  ;  James  Doe.  a  brother, 

who  resides  at  No Street,  in  the   

of in  the  County  of and  State  of : 

and   Sarah   Smith,  a  sister,  who,  resides  in  the    of 

in  the  County  of    and  State  of    

The  said  John  Doe  resides  with  your  petitioner,  who  stands  in 
loco  parentis  to  him. 

3.  All  of  the  next  of  kin  and  persons  entitled  to  guardian- 
ship of  the  said  John  Doe  have  duly  renounced  their  said  right 
of  guardianship,  and  have  requested  the  a])pointment  of  your 
petitioner,  (or,  due  notice  of  this  application  has  been  cjiven 
to  all  of  the  next  of  kin  and  persons  entitled  to  (jHarduinship 
of  the  said  John  Doe.  minor,  as  aforesaid  ). 

Your  petitioner  therefore  prays  that  letters  of  guardian- 
ship of  the  aforesaid  ])roi)erty.  real  and  personal,  and  of  the 


1282  Probate  Law  and  Practice. 

said  John  Doe,  within  the  State  of  New  Jersey,  be  committed 
to  some  fit  person. 

^^^^^    '  WD 

T9--- 


State  oe  New  Jersey, 
County  of  Essex. 


ISEY,  ") 

X.       I 


W'ilham  Doe,  being  duly  sworn  according  to  "law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 
Deponent  further  says  that  the  value  of  the  personal  estate 

of   the   said   John   Doe   is    dollars,   and   that   the 

amount  of  the  income  from  the  aforesaid  real  estate  belonging 
to  him  is dollars  per  annum. 

Subscribed   and    sworn    to    this~^ 

day  of 19  •  • ,  >  William  Doe. 

at  Newark,  N.   J.,  before  me.      J 
J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  notice  of  application  see  Form  289,  for  proof 
of  service  of  notice  see  Form  38.  for  renunciation  see  Form 
290. 


Form  306.     Order  Appointing  Special  Guardian  for  Property  of 
Non-Resident  Minor. 

[See  Orphans'  Court  Act,  section  43,  page  756,  supra,  and  Orphans' 
Court  Rules  13  and  14.  pages  747  and  752,  supra.] 

Essex  County  Surroc.atk's  Court. 


In  the  matter  of  the  guardian- 
ship of  John  Doe,  a  ]\Iinor. 

J 

Order  AppohiUng  Guardian. 


C)n  Petition  for  the  Ap- 
pointment of  Guardian  for 
Property  of  Non-Resident 
Minor. 


It  appearing  from  the  petition  of  ^^'illiam  Doe,  filed  herein, 
that  John  Doe,  a  minor,  residing  without  this  state,  to  wit :   in 


Guardianship  of  [Minors.  12S3 

the  City.  Count)-  and  State  of  Xew  York,  lias  personal  prop- 
erty  to  the   value   of    dollars,   and   real   property 

which   produces   an   annual   income*  of    dollars 

within  the  County  of  Essex  aforesaid,  ami  that  all  of  the  next 
of  kin  and  persons  by  law  entitled  to  the  guardianship  of 
said  minor  have  duly  renounced  their  said  right  of  guardian- 
ship {or  that  due  notice  of  this  application  has  been  given  to 
all  the  next  of  kin  and  persons  by  laic  entitled  to  guardianship 
of  said  minor). 

It  is  thereupon,  on  this   day  of ,  19.  .  .  ., 

ordered  that  A.  B.,  of  the of ,  in  the  County 

of  Essex  and  State  of  New  Jersey,  be  and  he  is  hereby  ap- 
pointed guardian  of  the  aforesaid  real  and  personal  property 
of  the  aforesaid  non-resident  minor  within  this  state,  and  that 
letters  of  guardianship  be  issued  accordingly  upon  the  said  A. 

15.,  entering  into  bond  to  the  (Ordinary  in  the  sum  of 

dollars,  conditioned  according  to  law  for  the  faithful  perform- 
ance of  his   duties. 

F.  G.  S.,  Jr., 
Surrogate. 

For  form  of  jjond  see  I-'orm  292. 


REMOVAL   FROM    STATE   OF  PROPERTY  OF   NON-RESI- 
DENT MINORS. 

Form  307.     Petition  by  Non-Resident  Guardian  for  the  Removal 
of  Property  of  Ward  From  the  State. 

[See   2   Comp.    Stat.,   page  2629,   section  6,   page   790,   supra,   and  ib., 
page  2630,  section  7,  page  791,  supra.] 

EssKx  Col'XT^■  Orphans'  Court. 

In    the    matter    of    the    removal "^ 

from  the  state  of  the  property  K-  On  Petition, 

of  William  Doe,  a  minor.         J 


Petition. 


To  the  Orphans'  Court  of  the  County  of  h'sscx. 
The  petition  oi  Richard  Doe,  of  the   of 


[284  Probate  Law  and  Practice. 

in  the  County  of  and  State  of  ,  respect- 
fully shows  that : 

1.  Your  petitioner  is  a  resident  of  the  City.  County  and 

State  of   Xew  York  and  on  the    day  of    , 

19.  .  .,  he  was  appointed  by  the  Surrogate  of  the  said  County 
of  New  York,  guardian  of  the  person  and  property  of  William 
Doe,  a  minor,  residing  in  the  City.  County  and  State  of  New 
York  aforesaid. 

2.  The  said  William  Doe.  minor  as  aforesaid,  is  entitled 
to  personal  property  situate  within  this  county  and  state,  to 

wit :    a  legacy  of dollars,  given  to  the  said  minor  by 

the  last  will  of  John  Doe.  deceased,  duly  admitted  to  probate 
bv  the  Surrogate  of  the  County  of  Essex  and  State  of  Xew 

Jersey  on  the    day  of    iQ.  . ,   which  said 

legacy  is  in  the  hands  of  James  Doe.  the  executor  of  the 
said  last  will  and  testament  of  John  Doe.  deceased. 

3.  The  value  of  the  personal  property  of  the  said  William 
Doe  at  the  place  of  his  residence  will  not  exceed  the  sum  of 
dollars  and  your  petitioner  has  given  adequate  secur- 
ity as   such   guardian   as  aforesaid,   in  the   sum   of    

dollars,  which  bond  is  in  double  the  amount  of  the  value  of 
the  aforesaid  legacy  over  and  above  the  value  of  the  prop- 
ertv  of  such  ward  in  the  place  of  his  residence,  which  securitv 
has  been  approved  by  the  Surrogate  of  the  said  County  of  New 
York,  as  will  appear  by  the  certificate  of  the  Surrogate  here- 
unto annexed. 

Your  petitioner  therefore  prays  that  an  order  may  be  made 
authorizing  him  to  demand,  sue  for,  collect  and  receive  the  said 
legacy  to  wdiich  his  said  ward  is  entitled  as  aforesaid  and  re- 
move the  same  to  the  place  of  residence  of  }Our  petitioner  and 
of  his  said  ward. 

Dated    


19. .  Richard  Doe. 

'  I  ss. 
Richard  Doe,  being  duly  sworn  according  to  law  upon  his 


State  of  New  Jersey 
County  oe  Essex 


GrARDiAxsiiip  oi-  Minors.  12S5 

oath,  deposes  and  says  tliat  lie  is  llic  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  trne  to  the  l)est  of  his  knowledge  and  belief. 

Subscribed    and    sworn    to    this"^ 

day  of  ,  19.  .,  K.  Richard  Doe. 

at before  me.         J 

If  tlie  guardian  lias  given  bond  with  adequate  security  in 
the  place  of  his  appointment,  in  a  sum  double  the  amount  in 
value  of  the  property-  of  the  ward  in  this  State,  over  and 
above  the  value  of  the  property  of  such  ward  in  the  place 
of  his  residence,  there  should  be  procured  from  the  officer  ap- 
pointing him  a  certificate,  authenticated  according  to  the  Act 
of  Congress,  setting  forth  such  fact.  In. the  absence  of  such 
certificate.  Or  if  the  court  be  not  satisfied  with  the  sufficiency 
of  such  security,  he  will  be  required  to  give  additional  securitv 
in  this  state  in  such  form  and  in  such  amount  as  the  court 
may  direct.  See  2  Comp.  Stat,  jiage  2630,  section  7,  page 
791,  supra. 


Form    308.      Notice    of    Application    by    Non-Resident    Guardian 
For  Removal  of  Property  of  Ward  From  State. 

[See  2  Comp.  Stat.,  page  2630,  section  8,  page  792,  supra.] 

Essex  County  Orpttans'  Court. 

In    the    matter    of    the    removal"^ 

from  the  State  of  the  property   vOn  Petition, 
of  William  Doe,  a  minor.  J 

Notice  of  .  lpf>l!catioii. 

To  James  Doe,  executor  of  the  last  will  and  icslament  of  John 
Doe,  deceased:  ,  t   ,,. 

You  are  hereby  notified  that  on  the day  of , 

19....,  at  10  a.m.,  or  as  soon  thereafter  as  counsel  can  be 
heard,  I  shall  apply  to  the  Orphans'  Court  of  the  County  oi 
Essex,  at  the  Court  House,  in  the  City  of  Newark,  for  an 
order  authorizing  me  to  demand,  sue  for.  collect  and  receive  a 


1286  Probate  Law  and  Practice. 

certain  legacy  of  dollars  in  your  hands  as  executor 

of  the  will  of  John  Doe,  deceased,  given  by  said  will  to  Wil- 
liam Doe,  a  minor,  of  whom  I  was  appointed  guardian  by  the 
Surrogate  of  the  County  of  New  York,  and  further  authorizing 
me  to  remove  the  same  from  this  state  to  the  place  of  residence 
of  myself  and  my  said  ward. 

Dated    Newark,    N.    J. 

,  19.  ..  Richard  Doe, 

Guardian  of  William  Doe. 

This  notice  must  be  served  twenty  days  before  making  the 
application.  The  Orphans'  Court  may  also  order  notice  of 
such  intended  application  to  be  given  to  other  persons  inter- 
ested. 2  Comp.  Stat.,  page  2630,  section  8,  page  792,  supra,  for 
form  of  proof  of  service  of  notice  see  Form  38. 


Form  309.     Order  Authorizing  Guardian  of  Non-Resident  Minor 
to  Remove  Property  of  Ward  Out  of  This  State. 

[See  2  Comp.  Stat.,  page  2629,  section  6;  ib.  page  2630,  section  7, 
pages  790  and  791,  supra,  and  ib.  page  2630,  section  8,  page  792,  supra.] 

Essex  County  Orphans'  Court. 

In    the    matter    of    the    removal"^ 

from  the  state  of  the  property  y  On  Petition. 

of  William  Doe,  a  minor.  J 

Order  Authorising  Removal  of 
Property  from  State. 

It  appearing  from  the  petition  of  Richard  Doe,  filed  herein, 
that  the  said  petitioner  resides  in  the  City,  County  and  State 
of  New  York  and  that  he  is  the  guardian,  duly  appointed 
by  the  Surrogate's  Court  of  the  said  County  of  New  York,  of 
the  person  and  property  of  William  Doe,  a  minor,  residing  in 
said  City,  County  and  State  of  New  York. 

And  it  further  appearing  that  the  said  William  Doe,  minor 
as  aforesaid,  is  entitled  to  personal  property  situate  within 
this  County  and  State,  to  wit :  a  legacy  of  dol- 
lars, given  to  the  said  minor  by  the  last  will  of  John  Doe.  de- 
ceased, which  will  was  duly  admitted  to  probate  by  the  sur- 


GiARDiAxsiiip  (U-  Minors.  1287 

rogate  of  the  County  of  Essex  and  State  of  Xew  Jersey  on  the 

day  of 19.  ..  whieh  legacy  is  in  the  hands 

of  James  Doe,  the  duly  qualitied  executor  of  said  will :  and 
proof  being  made  to  the  satisfaction  of  the  court  h\  certifi- 
cate of  the  surrogate  of  the  said  County  of  New  York,  duly 
authenticated  according  to  the  acts  of  Congress  that  the  said 
Richard  Doe,  guardian  as  aforesaid,  has  given  adequate 
security  as  such  guardian  in  double  the  amount  of  the 
value  of  the  aforesaid  legacy  over  and  above  the  value  of 
the  property  of  such  ward  in  the  place  of  his  residence, 
and  that  due  notice  of  this  application  has  been  given  to  the 
said  James  Doe,  executor  of  the  last  will  of  John  Doe.  in 
whose  custody  the  said  legacy  is  as  aforesaid ;  and  the  court 
having  investigated  the  matter ;  and  it  appearing  to  the  satis- 
faction of  the  court  that  it  is  for  the  interest  of  the  said  ^^'illiam 
Doe,  ward  as  aforesaid,  that  said  guardian  be  permitted  to  re- 
move the  said  legacy  to  which  tl*  said  ward  is  entitled  as 
aforesaid,  from  this  State. 

It  is  thereupon  on  this    day  of    I9-  •, 

ordered  that  the  said  Richard  Doe,  guardian  as  aforesaid,  be, 
and  he  is  hereby  authorized  to  demand,  sue  for,  collect  and  re- 
ceive the  said  legacy,  to  which  his  said  ward,  William  Doe,  is 
entitled  as  aforesaid  and  remove  the  same  to  the  ]:)]ace  of  resi- 
dence of  himself  and  ward ;  and  it  is  further  ordered  that  the 
delivery,  transfer,  or  payment  of  such  legacy  by  the  said 
James  Doe,  to  the  said  Richard  Doe  shall  be  a  legal  discharge 
and  acquittance  for  the  same. 

A.  F.  S.. 
Judge. 


V.     WHERE     NEXT     OF     KIN     ARE     NON-RESIDENT    OR 

ABSENT. 

Form  310.     Petition  by  a  Stranger  for  Appointment  of  Guardian 
for  Orphan  Whose  Next  of  Kin  are  Non-Residents. 

[Sec  Orijhans'  Court  Act.  section  42,  pa^c  734,  supra,  and  Orplians' 
Court  Kule  13,  page  747,  supra.] 

Essex  Countv  Suhkoc.atk's  Col'kt. 


1288  Probate  Law  and  Practice. 

In  the  matter  of  the  guardianship  |  On    Petition    for   Appoint- 
of  WilHam  Doe,  a  minor.         \  ment  of  Guardian. 

Petition. 

To  Fred  G.  Stickel,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petitioner  of  X.  Y.,  who  resides  at  No , 

Street,  in  the   of   in  the  County  of  Essex  and 

.State  of  New  Jersey,  respectfully  shows  that: 

1.  William  Doe  is  a  minor  under  the  age  of  fourteen  years, 

to  wit:   of  the  age  of  seven  years,  and  he  resides  at  No , 

Street,  in  the of ,  in  the  County  of 

Essex  and  State  of  New  Jersey. 

2.  Both  the  father  and  mother  of  said  minor  are  dead,  and 
the  only  next  of  kin  of  said  infant  is  a  brother,  James  Doe, 

who  resides  at  No ,   Street,  in  the  City  of 

New  York  in  the  State  of  New  York.  There  is  no  person 
standing  in  loco  parentis  t%  said  minor,  who  resides  with  your 
petitioner. 

3.  The  said  minor,  William  Doe,  is  seized  of  real  estate,  the 

annual  income  whereof  amounts  to dollars  annually, 

and  is  entitled  to  personal  property  situate  within  the  County  of 
Essex  of  the  value,  as  nearly  as  your  petitioner  can  ascertain 
of dollars. 

4.  Due  notice  of  this  application  has  been  given  to  all 
persons  by  law  entitled  thereto  (or  all  persons  by  law  entitled 
to  notice  of  this  application  have  duly  renounced  their  right 
of  guardianship  and  requested  the  appoijitsuent  of  your 
petitioner) . 

Your  petitioner  therefore  prays  that  such  action  may  be 
taken  in  respect  to  the  appointment  of  a  guardian  or  guardians 
for  said  minor  as  shall  seem  for  his  best  interest  and 
advantage. 

Dated  Newark,  N.  J.,  ^    y 
- ,  I9--- 

State  of  New  Jersey,       | 
County  of  Essex  j 

X.  Y..  being  duly  sworn  according  to  law  upon  his  oath, 
deposes  and  says  that  he  is  the  petitioner  in  the  foregoing  pe- 


GUARDIAXSIIIP  01'   ^[IXORS.  I289 

titioii  named,  and  that  the  matters  and  thing's  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief.  De- 
ponent further  says  that  the  value  of  the  personal  estate  of 

said   minor   will   not   exceed    in   value   the    sum   of    

dollars  and  that  the  amount  of  the  income  froiu  the  real  estate 
owned  by  him  amounts  to   dollars  per  annum. 


X.   Y 


Subscribed  and  sworn  to  this 
day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J- 

For  form  of  notice  see  Form  289;    for  proof  of  service  see 
Form  ^S ;    for  renunciation  see  Form  290. 


Form    311.      Order    Appointing   a    Guardian    for    Orphan    Whose 
Next  o£  Kin  are  Non-Resident. 

[See  Orphans'  Court  Act.  section  42,  page  754.  supra,  and  Orplians' 
Court  Rules  13  and  14,  pages  747  and  752,  supra.  J 

Essex  County  Surrog.vte's  Court. 

In  the   matter  of   the  guardian-  |  On    Petition    for   Appoint- 
ship  of  William  J3oe,  a  minor.  J  ment  of  (Uiardian. 

Order  Appoiut'nui  Cuardiaii. 

It  appearing  from  the  duly  verified  petition  of  X.  Y.,  of 

the    of    ,  in  the  County  of    and 

State  of ,  filed  herein,  that  William  Doe  is  an  orphan 

minor  under  the  age  of  fourteen  years,  and  resides  within 
this  State,  and  that  the  nearest  of  kin  of  said  orphan  minor 
do  not  reside  within  this  State ;  and  it  further  appearing  that 
the  said  orphan  is  seized  of  certain  real  jM'operty  and  is  entitled 
to  personal  property  situate  within  this  State,  and  that  it 
appears  for  the  best  interest  and  advantage  of  said  minor  thai 
a  guardian  should  be  appointed  for  him. 

And  it  further  appearing  that  due  notice  of  this  aj^plication 
has  been  given  to  all  persons  by  law  entitled  thereto  (or  that 
all  persons  entitled  h\  law  to  notice  of  this  application  hare 


1290  Probate  Law  and  Practice. 

duly  renounced  their  right  of  guardianship  of  said  orphan 
and  requested  the  appointment  of  your  petitioner). 

It   is   thereupon   on   this    day   of    19.  . . . 

ordered  that  guardianship  of  the  person  and  property  of  the 
said  WilHam  Doe,  until  he  arrives  at  the  age  of  fourteen 
years  and  chooses  another  guardian,  be  committed  to  X.  Y.. 
the  petitioner  herein,  and  that  letters  of  guardianship  be  issued 
accordingly  upon  the  said  guardian  entering  into  bond  to  the 

ordinary  in  the  sum  of    dollars,  with  sureties  to  be 

approved  by  the  Surrogate,  conditioned  for  the  faithful  execu- 
tion of  his  office  according  to  law. 

F.  O.   vS..  Jr.. 
Surrogate. 

For  form  of  bond  see  Form  292. 


Form    312.      Petition    for    Appointment    of    Guardian    for    Minor 
Child  of  Absconding  or  Absent  Parent. 

[See  Orphans'  Court  Act.  section  39,  page  7S3^  suiira.  and  Orplians" 
Court  Rules  13  and  14.  pages  747  and  7^2.  supra.] 

Essex  County  Surrogate's  Court. 

""^    On  Petition  for  Guardian- 

In  the  matter  of  the  guardian-  I    ship      for      Minor     Under 

ship  of  John  Doe,  a  minor.       [Fourteen    -Years,     Whose 

J    Parent   Has  Absconded. 

Petition. 

To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  William  Doe  who  resides  at   No 

Street,  in  the of ,  in  the  County  of 

Essex  and  State  of  New  Jersey,  respectfully  shows  that: 

I.  Prior  to  the day  of ,  19.  .  .,  his  brother. 

James  Doe,  a  citizen  of  this  state,  together  with  the  latter's 
minor   son,   John    Doe,    resided    with   your   petitioner   at   his 

aforesaid  residence.     On  the  aforesaid day  of , 

the  said  James  Doe  left  his  aforesaid  home,  ostensibly  to  seek 
work  in  the  City  of  Albany  in  the  State  of  New  York,  leaving 
his  aforesaid  child,  John  Doe,  with  your  petitioner  and  with- 
out making  any  competent  or  suitable  })rovision  for  his  main- 
tenance or  education. 


Guardianship  or*  Minors.  1291 

2.  Since  the  said  James  Doe  left  his  home  as  aforesaid,  your 
petitioner  has  not  heard  from  him,  although  your  petitioner 
has  repeatedly  written  to  him,  addressing  his  letters  to  Albany, 
Xew  York,  nor  has  the  said  James  Doe  taken  any  steps  to 
provide  suitable  maintenance  and  education  for  the  said  John 
Doe,  but  has  absconded  or  absented  himself  from  this  state 
for  the  period  of  more  than  two  years  last  past. 

3.  The  aforesaid  John  Doe  is  a  minor  under  the  age  of 
fourteen  years,  to  wit:  of  the  age  of  ten  years.  The  names 
and  residences  of  the  nearest  of  kin  of  the  said  John  Doe  are 

as  follows : — Henry  Doe,  an  uncle,  who  resides  at  No 

Street,  in  the of in  the  County  of 

and  State  of  ;   Robert  Doe,  an  uncle,  who 

resides  at  No , Street,  in  the of 

in  the  County  of ,  and  State  of ;   and  Mary 

Jones,  an  aunt,  who  resides  at   No Street,  in 

the of ,  in  the  County  of and  State 

of   

4.  The  said  minor  resides  with  your  petitioner,  there  is  no 
person  standing  in  loco  parentis  to  said  minor,  and  all  of  the 
aforesaid  next  of  kin  and  persons  by  law  entitled  to  guardian- 
ship of  said  minor  have  duly  renounced  their  right  of  guard- 
ianship and  requested  the  appointment  of  your  petitioner  {or 
due  notice  of  this  application  has  been  given  to  all  persons 
entitled  by  lazv  to  the  guardianship  of  said  minor). 

5.  The  aforesaid  John  Doe  is  not  possessed  of  nor  entitled 
to  any  property  either  real  or  personal,  so  far  as  your  petitioner 
can  ascertain  (or  the  said  John  Doe  is  possessed  of  personal 

property  to  the  value  of dollars,  and  is  also  seized 

of  certain  real  estate,  to  i^'it:  tzvo  divelling  houses  located  at 

No , Street,  in  the of /;/  the 

County  of    and  State  of    the  amount  of 

the    income   from    7<.'hich    amounts    to    the    sum    of    

dollars  per  annum). 

Your  petitioner  therefore  prays  that  letters  of  guardian- 
ship of  the  said  John  Doe,  a  minor  as  aforesaid,  may  he  granted 


1292  Probate  Law  and  Practice. 

to   him  until   the   said  John   Doe   shall   arrive   at  the  age  of 
fourteen  years,  and  select  a  new  guardian. 

Dated  Newark,  N.  T-,  ..r  t^  ^ 

Willi  A  xM  Doe. 

, ,  i9--- 


State  oe  New  Jersey, 
County  oe  Essex. 


s.v,J 


James  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says,  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 

(//  the  minor  is  possessed  of  real  and  personal  property, 
add  the  following) : 

Your  petitioner  further  says  that  the  said  John  Doe  is 
possessed  of  personal  property  of  the  value  of  dol- 
lars, and  is  also  seized  of  two  dwelling  houses  situate  at  No. 

.  . .  ., Street,  in  the  ....  of in  the  County 

of and  State  of ,  and  that  the  income  from 

the   aforesaid   real   estate   amounts   to   the   sum   of    

dollars  per  annum. 

Subscribed  and  sworn  to  this  "^ 

^f"y°'  m-VkT1  James  Doe. 

19.  .  .,  at  Newark,  N.  J.,  before 

me, 

X.  Y., 

Notary  Public  of  New  Jersey. 

For  form  of  notice  see  Form  289 ;  for  proof  of  service  see 
Form  38 ;    for  Renunciation  see  Form  290. 

In  the  case  of  a  minor  over  fourteen  years,  the  petition 
should  be  made  by  the  minor,  and  signed  by  him  in  the  presence 
of  the  Surrogate,  Deputy-Surrogate,  or  a  special  master  in 
chancery.  No  notice  or  renunciation  of  the  next  of  kin  is 
necessary  in  such  case,  but  the  petition  should  recite  their 
names  and  addresses  pursuant  to  the  provisions  of  rule  13. 
If  the  minor  is  seized  of  any  real  estate,  or  possesses  any 
personal  property,  the  affidavit  of  some  person  familiar  with 
the  value  of  the  same  should  be  annexed. 


Guardianship  of  Minors.  1293 

Form  313.     Order   Appointing   Guardian   for   Child   of   Abscond- 
ing or  Absent  Parent. 

[See  Orphans'  Court  Act.  section  39.  page  735.  supra  and  Orphans* 
Court  Rules  13  and  14.  pages  747  and  752,  supra.] 

EssKx  County  Surrogatk's  Court. 

"^   On  I'etition   for  (iiiardian- 

In  the  matter  of  the  guardian-  I   shi])      for      Minor     Under 

ship  of  John  Doe.  a  minor.         [Fourteen     Years,      \\'liose 

J   Parent  has  Absconded. 
Order  Appoiniiiui  Guardian. 

It  appearing  from  the  jjctition  of  W'ilHam  Doe,  filed  herein, 
that  James  Doe,  a  citizen  of  this  state,  has  absconded  or  ab- 
sented himself  from  this  state  for  the  term  of  two  years, 
leaving  in  this  state  his  child,  John  Doe,  a  minor  under  the  age 
of  tweifty-one  years,  to  wit:  of  the  age  of  ten  years,  without 
competent  and  suitable  provision  for  his  maintenance  and  edu- 
cation, and  it  further  appearing  that  such  child  resides  in  the 
said  County  of  Essex,  and  that  all  of  the  next  of  kin  of  said 
minor,  and  persons  by  law  entitled  to  guardianship  have  duly 
renounced  their  said  right  of  guardianship  (or  due  notice  of 
this  application  has  been  given  to  all  the  next  of  kin  of  said 
minor  and  persons  by  law  entitled  to  guardianship),  and  it 
further  api)earing  that  said  minor  is  not  seized  of  any  real 
estate  nor  possessed  of  any  personal  property  (or  said  minor  is 

seised  of  certain  real  estate  in  the   of   ......    in  the 

County  of and  State  of ,  consisting  of  tzvo 

divelling  houses,  the  income  from  zvhich  amounts  to  the  sn})i 

of dollars  per  annum  and  is  also  possessed  of  personal 

property  to  the  vahic  of dollars). 

It  is  thereupon,   on   this    day   of    if).  .  . . 

ORDKRKD  that  the  guardianship  of  the  aforesaid  John  Doe  be 
and  the  same  is  hereby  committed  to  the  said  William  Doe  and 
that  letters  of  guardianship  be  issued  accordingly,  uj^on  the 
.said  William  Doe  entering  into  bond  to  the  (  )r(linary  of  the 

State  of  New  Jersey  in  the  sum  of flollars,  condilioned 

according  to  law  for  tlie  faith fnl  execution  of  his  office. 

F.  G.  S.,  Jr.. 
Surrogate. 

For  form  of  guardian's  bond  see  Form  2')2. 


J294  Probate  Law  and  PRACTicr;. 

VI.  APPOINTMENT  OF  GUARDIANS  AD  LITEM. 

Form  314.     Notice  to  Infant  Over  Fourteen  Years. 

[See  Orphans'  Court  Rule  47,  page  757,  supra.) 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of"^  On  Application  for  Ap- 
the  last  will  and  testament  of  vpointment  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Lifant  Party. 

Notice  to  Infant  Over 
Fourteen  Years. 
To  William  Doe: 

Take  notice,  that  I  shall  apply  to  the  Orphans'  Court  of 
the    County   of    Essex,    at   the    Court-House    in    the    City    of 

Newark  on the day  of 19 .  . . , 

at  ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as  the 
matter  can  be  heard,  to  assign  and  appoint  a  guardian  ad 
litem  for  you  in  the  above  stated  matter. 

X.  Y., 
Proctor  for  Proponent. 
Dated , ,  19.  . . 

'     For  proof  of  service  see  Form  38. 


Form  315.  Petition  for  the  Appointment  of  a  Guardian  Ad  Litem 
of  Infant  Over  Fourteen  Years,  Where  No  Application 
on  Behalf  of  Infant  is  Made. 

[See  Orphans'  Court  Rule  47,  page  757.  supra.] 

Essex  County  Orphans*  Court. 

In  the  matter  of  the  probate  of^  On  Application  for  Ap- 
the  last  will  and  testament  of  Vpointment  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Infant  Party. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex: 
The  petition  of  Jane  Doe  respectfully  shows  that: 
I.  Your  petitioner  is  the  proponent  in   the  above   entitled 

matter,  and  Henry  Doe,  a  minor  over  the  age  of   fourteen 

years  is  a  party  to  this  proceeding. 


Guardians  Ad  Litem.  1295 

2.  On  the day  of   19.  .  . ,  the  said  Henry 

Doe  was  duly  served  with  process  of  citation  issued  out  of 
this  court,  but  no  apphcation  for  the  appointment  of  a  guard- 
ian ad  Htem  for  the  said  infant  party  has  been  made,  although 
more  than  fiive  days  have  elapsed  since  the  service  upon  him 
of  the  citation  as  aforesaid. 

3.  Due  notice  of  this  application  has  been  given  to  the  said 
infant  party. 

The  petitioner  therefore  prays  that  a  guardian  ad  litem  mav 
be  assigned  for  the  said  Henry  Doe,  to  apj)ear  for  the  said 
minor  in  the  above  entitled  matter. 

Signed  in  the  presence  ^.     ,  ^         ^ 

^  ^  '  T.xNE  Doe. 


V  Jersey,  ") 
Essex.      j 


St.\te  of  New 
County  of  E= 


Jane  Doe,  being  duly  sworn  according  to  law  upon  her  oath, 
deposes  and  says  that  she  is  the  petitioner  in  the  foregoing 
petition  named,  aod  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  her  knowledsc  and  l)clicf. 


Subscribed  and  sworn  to  this"^ 

day  of    , 

19.  .  ..  at  Newark.  N.  J.,  before 
me, 

J.  C.  F., 

Notarv  Public  of  N.   T 


>  Jane  Doe. 


Form    316.    Order    Appointing    Guardian    Ad    Litem    for    Infant 
Over  Fourteen  Years  on  Application  of  Petitioner. 

[See  Orphans'  Court  Kule  47,  page  JS7-  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  prol)ate  of]  On  Ajjplication  for  .\p- 
the  last  will  and  testament  of  vpointmeiit  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Infant  Party. 

Order  Apl^oititiiuj  Ciiardiaii  Ad 
Litem  for  hi  font  Over  four- 
teen Years. 

'I'his  matter  being  oj^ened  to  the  court  bv proctor 

83 


1296  Probate;  Law  and  Practice. 

for  proponent,  and  it  appearing  that  Henry  Doe,  one  of  the 
parties  herein,  a  minor  under  the  age  of  twenty-one  years  and 
over  the  age  of  fourteen  years,  has  been  served  with  citation  to 
appear  herein ;  that  no  appHcation  has  been  made  for  the 
appointment  of  a  guardian  ad  litem  for  the  aforesaid  infant 
party,  although  more  than  five  days  have  elapsed  after  the 
service  upon  him  of  the  citation  as  aforesaid,  and  that  due 
notice  of  this  application  has  been  given  to  the  said  Henry 
Doe. 

It   is   thereupon   on   this    day   of    ,    19..., 

ordered  that be  and  he  is  hereby  assigned  and  appointed 

guardian  ad  litem  for  the  said  Henry  Doe,  for  him  and  in  his 
behalf  to  appear  in  this  matter. 

W.   P.   M., 

Judge. 


Form  317.     Notice  to  Infant  Under  Fourteen  Years. 

[See  Orphans'  Court  Rule  47.  page  757,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of"^  On  Application  for  Ap- 
the  last  will  and  testament  of  Vpointment  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Infant  Party. 

Notice  to  Infant  Under 
Fourteen  Years. 

To  William  Doe: — (guardian,  father  or  mother  as  the  case 
may  be)  of  Henry  Doe,  a  minor,  under  the  age  of  fourteen 
years : 

Take  notice  that  I  shall  apply  to  the  Orphans'  Court  of  the 
County  of  Essex  at  the  Court-House  in  the  City  of  Newark, 

on ,  the day  of ,  19 .  .  . ,  at  ten  o'clock 

in  the  forenoon,  or  as  soon  thereafter  as  the  matter  can  be 
heard,  to  assign  and  appoint  a  guardian  ad  litem  for  Henry 
Doe,  an  infant  party  in  the  above-stated  matter,  who  is  under 
the  age  of  fourteen  years.  X.  Y., 

Proctor. 
Dated, , ,  19.  •  • 

For  proof  of  service  see  Form  38. 


Guardians  Ad  Litk>[.  1297 

Form  318.     Petition  for  the  Appointment  of  Guardian  Ad  Litem 
for  Infant  Under  Fourteen  Years,  Where  no  Application  is 
Made  on   Behalf  of   Infant. 
[See  Orphans'  Court  Rule  47.  page  757.  supra.] 

Essex  County  Orphans'  Court. 

Ill  the  matter  of  the  probate  of^  On  Application  for  Ap- 
the  last  will  and  testament  of  Vpointment  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Infant  Party. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  James  Doe  respectfully  shows  that: 

1.  Your  petitioner  is  the  proponent  in  the  above-entitled 
matter.  The  citation  issued  in  this  matter  was  duly  served 
upon  Henry  Doe,  an  infant  under  the  age  of  fourteen  years, 
who  is  a  party  to  this  proceeding. 

2.  The  father  of  the  said  Henry  Doe  is  dead,  and  the  said 
infant  resides  with  his  mother,  Sarah  Doe,  and  due  notice  of 
this  application  has  been  served  u])on  the  said  Sarah  Doe, 
but  no  application  for  the  appointment  of  a  guardian  ad  litem 
for  said  infant  party  has  been  made,  although  more  than  five 
days  have  elapsed  since  the  service  upon  him  of  the  citation 
issued  herein,  as  aforesaid. 

Your  petitioner  therefore  prays  that,  some  suitable  person 
be  appointed  by  this  court  as  guardian  ad  litem  for  the  said 
infant,  Henry  Doe,  for  him  and  in  his  behalf  to  a])pear  in 
this  matter. 

Dated   Newark,    X.    |.,  t  ,^ 

A.Mics  iJor;. 
, ,  i9--- 


Kw  Jerskv,  I 
F  Essex.      j 


Static  oe  NE^ 

,.  ^ "  y  ss. 

County  of 


James  Doe,  being  dul_\-  sworn  according  lo  l;iw  ui)t)ii  his  oalh, 
dc])Oses   and    says   that   he    is   the   jtetitioner    in    the    foregoing 


1298  Probate  Law  and  Practice. 

petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  liis  knowledge  and  belief. 


Subscribed  and  sworn  to  this^ 

day  of    ^ 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  ]. 


>  Tames  Doe. 


Form  319.  Order  Appointing  Guardian  Ad  Litem  for  Infant 
Under  Fourteen  Years  Where  No  Application  Made  in  His 
Behalf. 

[See  Orphans'  Court  Rule  47,  page  757.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of"^  On  Application  for  Ap- 
the  last  will  and  testament  of  ypointment  of  Guardian  Ad 
John  Doe,  deceased.  J   Litem  for  Infant  Party. 

Order  Appoi}iti)ig    Guard- 
ian Ad  Litem. 

This  matter  being  opened  to  the  court  by proctor 

for  proponent,  and  it  appearing  that  Henry  Doe,  a  party  to 
this  proceeding,  who  is  an  infant  under  the  age  of  fourteen 
years,  has  been  duly  served  with  process  of  citation  issued 
in  this  matter ;  that  the  father  of  the  said  Henry  Doe  is  dead, 
and  that  due  notice  of  this  application  has  been  given  to  Sarah 
Doe,  the  mother  of  the  said  Henry  Doe,  and  that  no  applica- 
tion has  been  made  for  the  appointment  of  a  guardian  ad  litem 
for  the  said  Henry  Doe,  although  more  than  five  days  have 
elapsed  since  the  service  upon  him  of  the  citation  issued  herein 
as  aforesaid. 

It   is   thereupon,   on   this    day   of    ,    19.  . ., 

ordered  that  be  and  he  is  hereby  assigned  and  ap- 
pointed guardian  ad  litem  for  the  said  infant  Henry  Doe,  for 
him  and  in  his  behalf  to  appear  in  this  matter. 

W.  P.  M., 

Judge. 


GuARDiAxs  Ad  LiTF.>r.  1299 

Form    320.      Petition    of    Minor    Over    Fourteen    Years    for    the 
Appointment   of   a   Guardian   Ad   Litem. 
[See  Orphans'  Court  Rule  46.  page  757,  supra.] 

Essex  Count v  Orph.vxs'  Court. 

In  the  matter  of  the  probate  of"^  On  Apphcation  for  Ap- 
the  last  \\V\  and  testament  of  vpointment  of  Guardian  Ad 
John  Doe,  deeeased.  J  Litem  for  Infant  Party. 

Petition  of  Minor  for  Afypoiittiiioit 
of  Guardian  Ad  Litem. 

To  the  Orphans'  Court  of  the  County  of  Essex: 
The  petition  of  Henry  Doe  respectfully  shows  that: 
Your  petitioner  is  one  of  the  parties  to  the  above  entitled 
matter,  and  is  a  minor  under  the  age  of  twenty-one  years,  and 
over  the  age  of  fourteen  years,  and  by  reason  of  his  minority 
is  unable  to  answer  or  make  defense  in  this  matter  in  a  legal, 
competent  and  proper  manner. 

Your  petitioner  therefore  prays  that  his  father,  William  Doe, 
may  l)e  assigned  and  appointed  guardian  ad  litem  of  vour  pe- 
titioner, for  him  and  in  his  behalf  to  appear  in  this  matter. 

Dated  Newark,  X.  }.,  ^^  ^ 

Henry  Doe. 
, ,  19-  •• 

•  1.  W  illiam  Doe,  above  named,  do  hereby  consent  and  agree  to 
accept  the  appointment  of  guardian  ad  litem  above  prayed  for 
of  Henry  Doe,  a  minor  under  the  age  of  twenty-one  years,  to 
make  answer  and  defense  in  behalf  of  the  said  infant  in  the 
above  entitled  matter. 

In  witness  whereof  I  hereby  sul)scribe  my  name,  this 

day  of in  the  year  19.  . . 

Signed  in  the  i^resence  of  )  „,  „ 

„..,,?       ^,1  >  W 1  I.I.I. ^.\!  Doe. 

\\  illiam  Clarke.  ( 

State  of  New  Jersey,  | 
County  of  Essex.       | 

William  Clarke  of  full  age,  being  duly  sworn  according  to 
law,  upon  his  oath  deposes  and  says :    I  was  present  and  saw 


I300 


Probate  Law  and  Practice. 


William  Doe  subscribe  his  name  to  the  above-written  agree- 
ment, the  same  having  been  by  me  first  read  to  the  said  William 
Doe.  I  was  also  present  and  saw  the  above-named  Henry  Doe 
subscribe  the  foregoing  petition,  the  said  petition  having  been 
by  me  first  read  to  the  said  Henry  Doe. 

I  further  say  that  from  information  given  me  and  from  the 
appearance  of  the  said  Henry  Doe,  I  verily  believe  and  have  no 
doubt  that  he  is  under  the  age  of  twenty-one  years  and  over  the 
age  of  fourteen  years. 


Subscribed  and  sworn  to  this"^ 

day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  PubHc  of  N.  J 


William  Clarke. 


Form  321.     Order  Appointing  Guardian  Ad  Litem  of  Infant  over 
Fourteen  Years  on  Application  of  Infant. 

[See  Orphans'  Court  Rule  46.  page  757.  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  probate  of 
the  last  will  and  testament  of 
John  Dee,  deceased. 


\  On  Application  for  Ap- 
vpointment  of  Guardian  Ad 
j  Litem  for  Infant  Party. 

Order  Appointing  Guardian 
Ad  Litem. 


Upon  reading  the  petition  filed  in  this  court  by  Henry  Doe. 
one  of  the  parties  thereto,  setting  forth  that  he.  the  said 
Plenry  Doe,  is  a  minor  over  the  age  of  fourteen  years,  and 
praying  that  his  father  W^illiam  Doe  may  be  appointed  his 
guardian  ad  litem,  for  him  and  in  his  behalf  to  appear  and 
defend  in  this  matter,  and  upon  reading  the  written  assent 
of  the  said  William  Doe  annexed  to  the  said  petition  that 
the  appointment  be  made,  and  the  affidavit  of  W^illiam  Clarke 
verifying  the  age  of  the  said  petitioner  and  stating  that  the 
said  petition  and  assent  were  signed  in  his  presence. 


Guardians  Ad  LiTF:>r.  1301 

It  is  on  this    day  of    19.  .  .    ordered  that 

said  William  Doe  be  assigned  and  appointed  guardian  ad  litem 
for  the  said  Henry  Doe,  by  whom  he  may  appear  in  this 
matter. 

\V.  P.  M.. 

Tudge. 


Form  322.     Petition  for  Appointment  of  Guardian  Ad  Litem  of 
Infant  Under  Fourteen  Years,  on  Behalf  of  Infant. 

[See  Orphans"  Court  Rule  46,  page  757.  supra.] 

Essex  Countv  Orpiiaxs'  Court. 

Tn  the  matter  of  the  probate  ot~^  On  Application  for  Ap- 
the  last  will  and  testament  of  Vpointment  of  Guardian  Ad 
John  Doe,  deceased.  J  Litem  for  Infant  Party. 

Petition  for  Appointtncnt 
of  Guardian  Ad  Litem. 

To  the  Essex  County  Orphans'  Court : 

The  petition  of  William  Doe  of  the  City  of  Newark  in  the 
County  of  Essex  and  State  of  New  Jersey,  respectfully  shows 
that : 

Your  petitioner  is  the  father  of  Henry  Doe,  a  minor  under 
the  age  of  fourteen  years,  to  wit :  of  the  age  of  six  years,  and 
that  the  said  Henry  Doe  is  a  ])arty  in  the  above-entitled 
matter. 

Your  petitioner  therefore  prays  that  he  may  be  appointed 
guardian  ad  litem  for  the  said  Henry  Doe,  for  him  and  in  his 
behalf  to  appear  in  this  matter. 

Dated  Newark,  N.  J.,  „,  .^ 
, ,  i9--- 


Annexed  to  the  petition  should  be  the  agreement  of  the 
guardian  to  act  as  such,  and  an  affidavit  verifying  the  signa- 
ture of  petitioner  and  the  age  of  the  minor,  as  in  Form  320, 
supra. 


Form    323.     Order    Appointing    Guardian    Ad    Litem    for      Infant 
Under  Fourteen  Years  on  Application  in  His  Behalf. 

[Sec  Orphans"  Cc)url  Rule  46,  pa<4c  757,  sui)ra.| 

EssKx  CouNTN'  Oki'iians'  Court. 


1302  Probate  Law  and  Practice. 

In  the  matter  of  the  probate  of^  On  AppHcation  for  Ap- 
the  last  will  and  testament  of  Vpointment  ot  Guardian  Ad 
John  Doe,  deceased.  J   Litem  for  Infant  Party. 

Order  Appointing  Guardian 
Ad  Litem. 

Upon  reading  the  petition  filed  in  this  matter  by  William 
Doe,  whereby  it  appears  that  he  is  the  father  of  Henry  Doe, 
one  of  the  parties  to  this  proceeding,  and  that  the  said  Henry 
Doe  is  a  minor  under  the  age  of  fourteen  years,  and  praying 
that  the  said  William  Doe  may  be  appointed  guardian  ad  litem 
of  the  said  Henry  Doe;  and  upon  reading  the  written  assent 
of  the  said  William  Doe  to  the  said  appointment,  and  the 
affidavit  of  William  Clarke  verifying  the  age  of  the  said  pe- 
titioner and  stating  that  the  said  petition  and  assent  were 
signed  in  his  presence. 

It   is   thereupon   on   this    day   of    ,    19..., 

ordered  that  the  said  William  Doe  be  assigned  and  appointed 
guardian  ad  litem  of  the  said  Henry  Doe  by  whom  he  may 
appear  in  this  matter.  W.  P.  M., 

Judge. 


VII.     SALE      OF      WARD'S      LAND      OR      TIMBER      BY 

GUARDIAN. 

Form  324.     Petition  for  Order  to  Sell  Ward's  Lands. 

[See  2  Comp.  Stat.,  page  2628,  section  3,  page  761,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  sale  of  lands  |  ^^^  Petition 
of  William  Doe,  a  minor.  j 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  Richard  Doe,  of  the of in  the 

County  of   and  State  of   ,  respectfully  shows 

'  that : 


Sale  of  Lands  bv  Guardians.  1303 

1.  Your  petitioner  is  the  guardian.  duW  appointed  hv  the 
Surrogate  of  the  County  of  Essex,  of  \\  illiam  Doe.  a  minor 
of  the  age  of  ten  years. 

2.  Both  of  the  i)arents  of  petitioner's  said  ward  are  dead. 

and  his  said  ward  is  Hving  with ;    there  is  no  person 

who  stands  in  loco  parentis  to  said  minor  and  is  chargeable 
with  his  support,  but  he  is  dependent  for  his  education  and 
maintenance  entirely  upon  his  own  estate,  and  has  no  other 
proper  means  of  support. 

3.  Petitioner's  said  ward  is  not  possessed  of  any  personal 
estate  whatever,  but  he  is  seized  of  certain  real  estate  in  the 
said  County  of  Essex,  to  wit:  (insert  description  of  property 
by  metes  and  bounds). 

4.  The  said  real  estate  is  valued  at  the  sum  of    

dollars  and  is  encumbered  by  a  mortgage  of dollars ; 

the  rents,  issues  and  profits  of  said  real  estate  amount  to  the 

sum  of dollars  per  month,  and  are  not  sufficient  for 

the  maintenance  and  education  of  petitioner's  said  ward. 

Your  petitioner  therefore  prays  that  he  may  be  ordered  to 
sell  the  whole  or  such  part  of  the  aforesaid  real  estate  of  his 
said  ward  as  this  court  shall  judge  adequate  for  his  main- 
tenance and  education. 

Dated  Newark,  N.  J.,  -n  t^ 

•^  Richard  Doe. 
- i9--- 

State  of  New  Jersey 


■■! 


County  of  Essex. 

Richard  Doe,  being  duly  sworn  upon  his  oath  according  to 
law,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledge  and  belief. 


w'^ubscribed  and  sworn  to  this^ 

day  of   . ., 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


Richard  Doe. 


1304  Probate  Law  and  Practice. 

Form  325.     Decree  Ordering  Sale  of  Ward's  Lands. 

[See  2  Comp.  Stat.,  page  2628,  section  3,  page  761,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  sale  of  lands 


.  „,.,,.        .p.  •  ^  --"  Petition, 

ot  vVilliam  Doe.  a  mnior 


I  On 

Decree  Ordering  Sale. 


It  appearing  to  the  court  from  the  petition  of  Richard  Doe, 
guardian  of  William  Doe,  a  minor,  that  his  said  ward  is  of 
tender  years  ;  that  his  parents  are  dead  and  that  there  is  no 
person  who  stands  in  loco  parentis  to  said  minor  and  is  charge- 
able with  his  support,  but  that  he  is  dependent  for  his  edu- 
cation and  maintenance  entirely  upon  his  own  estate,  and  has 
no  other  proper  means  of  support ;  and  it  further  appearing 
that  the  said  ward  has  no  personal  estate,  and  that  the  rents 
and  profits  of  the  real  estate  of  said  ward  are  not  sufficient 
for  his  maintenance  and  education,  and  the  court  having  made 
a  full  investigation  of  the  estate  and  circumstances  of  said 
ward,  and  judging  it  to  be  necessary  that  part  of  the  lands  of 
said  ward  should  be  sold  for  his  maintenance  and  education. 

It   is   thereupon   on   this    day   of    ,    19.  •  . , 

ordered  and  decreed  that  the  said  Richard  Doe  guardian  as 
aforesaid  sell  a  certain  portion  of  the  lands  of  William  Doe. 
his  said  ward,  to  wit:  {describe  the  land  zvhich  the  court 
orders  sold),  and  make  a  report  of  such  sale  and  of  his  pro- 
ceedings by  virtue  of  this  order  to  this  court  for  its  approval, 
and  the  court  having  examined  into  the  sufficiency  of  the  bond 
previously  given  by  the  said  Richard  Doe,  guardian  as  afore- 
said, and  finding  that  said  bond  is  in  the  judgment  of  the 
court  insufficient,  it  is  further  ordered  that  the  said  Richard 
Doe,  guardian  as  aforesaid,  before  selling  the  aforesaid  lands, 

give  an  additional  bond  in  the  sum  of   dollars,  with 

sureties  approved  by  this  court,  conditioned  for  the  faithful 
execution  of  his  office. 

W.  P.  M., 

Judge. 

Before  this  order  can  be  obtained,  the  guardian  must  make 
a  report  of  the  sale  to  the  court,  Forms   157  and   161,  upon 


Sale  of  Lands  by  Guardians.  130^ 

notice  to  all  interested  j)arties.  Form  154;    for  proof  of  serv- 
ice see  Form  38;    for  guardian's  bond  see  Form  292. 


Form  326.     Deed  by   Guardian. 

[See  2  Comp.  Stat.,  page  2628,  section  5.  page  764.  snpra.] 

This  Indexture.  made  the dav  of ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and   

between   Richard   Doe.   guardian   of    William   Doe,   a   minor, 

of   the    of in   the   County   of    , 

and  State  of party  of  the  first  part :   and of 

the of ,  in  the  County  of and  State 

of party  of  the  second  part. 

Witnesseth,  whereas  the  said  party  of  the  first  part,  by 
virtue  of  an  order  of  the  Orphans'  Court  of  the  County  of 

Essex,  in  the  State  of  New  Jersey,  made  on  the   flay 

of ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and    ,  of  the  term  of    in   said  year, 

having  first  advertised  the  same  according  to  law,  did  sell  the 
land  hereinafter  described,  at  public  vendue,  to  the  said 
party  of  the  second  part,  he  being  the  highest  bidder  therefor. 

for  the  sum  of dollars,  and  did  report  the  said  sale  to 

the   said   Orphans'   Court,   who   by  their  order  made  on  the 

day  of ,  in  the  year  of  our  Lord  one  thousand 

nine   hundred   and    ,   did   confirm  the   sale,   and   order 

and  direct  the  said  party  of  the  first  part  to  execute  a  good  and 
sufficient  conveyance  in  the  law,  to  the  said  party  of  the  second 
part,  for  the  same. 

Now  this  indenture  witnesseth,  that  the  said  party  of  the 
first  part,  guardian  as  aforesaid,  in  consideration  of  the  sum  of 

dollars  to  him  paid  by  the  said  party  of  the  second 

part,  the  receij)t  whereof  is  hereby  acknowledged,  does  grant, 
bargain,  sell  and  convey  unto  the  said  party  of  the  second 
j)art,  his  heirs  and  assigns,  all  that  certain  tract  or  parcel  of 
land  and  premises,  hereinafter  particularly  described,  situate. 

lying,  and  being  in  the of   in  the  Countv  of 

Kssex  and  State  of  New  Jersey,  {describe  the  la)ids  as  in 
decree  for  sale),  together  with  the  hereditaments  and  a])purte- 
nances  ;   to  have  and  to  hoM  mito  the  said  party  of  the  second 


1306  Probate  Law  and  Practice. 

part,  his  heirs  and  assigns  to  the  only  proper  use  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns  forever,  accord- 
ing to  the  form  of  the  statute  in  such  case  made  and  provided. 
In  witness  whereof,  the  said  party  of  the  first  part,  as  such 
guardian  as  aforesaid,  hath  hereunto  set  his  hand  and  seal  the 
day  and  year  first  above  written. 

Signed,  sealed  and  delivered       1       t^  .^  ^        -. 

.     '  r  >      Richard  Doe.     [e.  s.l 

m  the  presence  of  j 

Add  acknowledgment  as  in  Form  8a. 


>On  Petition. 


VIII.  APPLICATION  FOR  ORDER  AUTHORIZING  USE 
OF  PRINCIPAL  OF  WARD'S  PERSONAL  ESTATE 
FOR  HIS  EDUCATION. 

Form  327.     Petition  of  Guardian  for  Order  Authorizing  Use  of  Prin- 
cipal of  Minor's  Estate  for  His  Education. 

[See  2  Comp.  Stat.,  p.  2629,  section  5d.,  page  769,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  application'' 
of  Richard  Doe,  guardian  of 
William  Doe,  a  minor,  for  an 
order  authorizing  use  of 
principal  of  ward's  personal 
estate  for  the  support  of  ward. 

Petition. 

To  the  Orphans'  Court  of  the  County  of  Essex: 

The  petition  of  Richard  Doe,  of  the of ,  in 

the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : 

I.  On  the   day  of    ,   19.  . . ,  your  petitioner 

was  duly  appointed,  by  the  surrogate  of  said  County  of  Essex, 
guardian  of  the  person  and  property  of  William  Doe,  a  minor, 
an  orphan  of  the  age  of  eighteen  years,  whose  father  and 
mother  are  both  dead,  and  who  is  at  present  residing  with.  . . . 


2.  There  is  no  person  charged  with  the  duty  of  supporting 
the  said  minor,  whose  estate  consists  only  of  the  sum  of 


Sale  of  Lands  by  Glardians.  1307 

dollars,  which  is  deposited  in  the Savings  Insiitutitm 

and  produces  an  income  of dollars  per  annum,  all  of 

which  appears  from  the  inventory  filed  in  the  surrogate's  oftice 
of  the  County  of  Essex  by  your  petitioner  as  such  guanlian. 

3.  The  said  William  Doe  has  displayed  an  unusual  aptitude 
for  music  and  desires  to  take  a  course  of  special  studies,  to  the 
end  that  he  may  be  a  professional  musician,  and  in  order  that 
this  result  may  be  accomplished,  it  will  l»e  necessarv  to  expend 
the  sum  of  one  hundred  dollars  per  month  irom  the  principal 
of  his  estate. 

4.  Your  petitioner  is  unwilling  to  assume  the  responsibilitv 
for  so  large  an  expenditure  of  the  corpus  of  his  said  ward's 
estate,  and  therefore  prays  that  an  order  may  be  made  fixing 
the  amount  that  he  may  expend  during  the  ensuing  vear  for  or 
towards  the  support,  maintenance  and  education  of  his  said 
ward. 

Dated  Newark,  N.  T-.  t-.  t^ 

RicHAKn  Doi:. 
, I9--- 


State  oe  New 
County  of 


iw  Jersey,  | 
F  Essex.       j 


Richard  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 

Subscribed  and  sworn  to  this"^ 

^^>'  o^    'I  RiciiAKi)  Doe. 

19.  .  ..  at  Newark,  N.  J.,  before 

me, 

J.  C.  F., 

Notary  Pubhc  of  N.   ]. 


Form    328.      Order    Authorizing    Guardian    to    Use    Principal    of 
Minor's  Estate  for  His  Education. 
[See  2  Comp.  Stat.,  page  j6j<j,  section  5(1..  page  760.  su|)ra.| 

Essex  County  Orphans'  Court. 


1308  Probate  Law  and  Practice. 

In  the  matter  of  the  appHcation~^ 

of  Richard  Doe,  guardian  of 

William  Doe  a  minor  for  an 

order      authorizing      use      of  /^On  Petition. 

principal    of    ward's    personal 

estate    for    the    education    of 

ward. 

Order  AittIiori::ing  Use  of 
Principal  for  Education 
of  Ward. 

It  appearing  from  the  duly  verified  petition  of  Richard  Doe, 
filed  herein,  that  the  said  Richard  Doe  is  the  duly  appointed 
guardian  of  the  person  and  property  of  William  Doe,  a  minor, 
and  it  appearing  from  said  petition  and  from  the  inventory 
filed  in  the  surrogate's  office  of  the  County  of  Essex  by  the 
said  Richard  Doe  as  such  guardian,  that  there  is  no  person 
charged  with  the  duty  of  supporting  the  said  minor,  and  that 
the  estate  of  said  minor  consists  of  the  sum  of  dol- 
lars, which  is  deposited  in  the    Savings  Bank,  and 

produces  an  income  of   dollars  per  annum. 

And  it  further  appearing  that  the  said  William  Doe,  minor 
as  aforesaid,  has  displayed  an  unusual  aptitude  for  music  and 
desires  to  take  a  course  of  special  studies,  to  the  end  that  he 
may  become  a  professional  musician,  and  the  court  having 
examined  into  the  matter  and  taken  testimony,  and  being 
satisfied  that  it  would  be  to  the  best  interest  of  the  said  Wil- 
liam Doe,  minor  as  aforesaid,  that  his  said  guardian,  Richard 
Doe,  be  authorized  to  use  and  expend  the  sum  of  one  hundred 
dollars  per  month  for  the  period  of  one  year  from  the  date 
hereof  from  the  principal  of  his  said  estate,  for  the  purpose 
of  educating  him  as  aforesaid. 

It  is  thereupon  on  this day  of ,  one  thousand 

nine  hundred  and ordered  that  the  said  Richard  Doe, 

guardian  as  aforesaid,  be  and  he  is  hereby  authorized  to  use 
and  expend  from  the  aforesaid  principal  of  the  personal  estate 
of  the  said  William  Doe,  minor  as  aforesaid,  the  sum  of  one 
hundred  dollars  per  month  for  the  period  of  one  year  from  the 
date  hereof,  for  the  education  of  said  minor  as  aforesaid. 

W.  P.  AI., 

Judge. 


Guardianship  of  Inxompetexts.  1309 

GUARDIANSHIP  OF  INCOMPETENTS. 

Form   329.      Petition    for    Appointment    of    Guardian    of    Lunatic 
After   Inquest    Found. 

[See  2  Comp.  Stat.,  page  2781,  section  i.  page  -j-jz,  supra,  and  Orphans' 
Court  Rules  13  and  14,  pages  747  and  752,  supra.] 

Essex  County  Orphans'  Court. 

In    the   matter   of    the    appoint-"^   ^     ^ 

ment  of  a  guardian  for   [ohn  L^"  ^^^'^^°"  ^°'  ^^^"^'"^  °^' 
Doe,  a  lunatic.  '        J  Guardianship. 

Pet'\t\on.\ 

To  the  Orphans'  Court  of  the  County  of  Essex : 

The  petition  of  Jane  Doe  respectfully  shows  as  follows : 

1.  Your  petitioner  resides  at  Number  .  .  .  ., Street 

1"  the of ,  in  the  County  of and  State 

o^ John  Doe,  her  father,  resides  in  the  Countv  of 

Essex  aforesaid  and  on  the day  of 19.  ...  he 

was  duly  adjudged  a  lunatic,  as  will  more  fully  and  at  large 
appear  by  a  certified  copy  of  certain  proceedings  of  the  Court 
of  Chancery,  which  have  been  duly  filed  in  the  Surrogate's  office 
of  the  County  of  Essex  aforesaid. 

2.  The  nearest  of  kin  of  the  said  John  Doe,  a  lunatic,  as 
aforesaid,  are  as  follows:  Your  petitioner,  his  daughter,  who 
resides  as  hereinabove  set  forth  ;  William  Doe,  a  son.  who 
resides   with   your  petitioner   at   the   aforesaid   address;    and 

James  Doe,  a  son,  who  resides  at  Number Street, 

i»  the of  in  the  County  of   and 

State  of Ml  of  the  aforesaid  nearest  of  kin  arc  of 

full  age  with  the  exception  of  the  above-named  William  Doe, 
who  is  a  minor  of  the  age  of  seventeen  years,  and  all  of  the 
aforesaid  nearest  of  kin  entitled  to  the  guardianship  of  the  said 
John  Doe,  a  lunatic  as  aforesaid,  have  duly  renounced  their 
right  of  guardianship  and  ref|uested  the  appointment  of  vour 
petitioner,  {or  due  notice  of  this  application  has  been  given  to 
all  of  the  aforesaid  nearest  of  kin  entitled  to  guardianship  of 
the  said  John  Doe,  a  lunatic). 


13 lo  Probate  Law  and  Practice. 

3.  The  said  John  Doe  is  possessed  of  personal  property  to 

the  amount  of   dollars  and  is  also  seized  of  certain 

real  estate  consisting  of  three  lots  or  parcels  of  land  with  dwell- 
ing houses  thereon.  The  amount  of  the  income  from  said  real 
estate  amounts  to  the  sum  of dollars  per  annum. 

Your  petitioner  therefore  prays  that  letters  of  guardianship 
of  the  said  John  Doe,  a  lunatic  as  aforesaid,  be  granted  to  her. 

Dated , ,  19.  . .  Jane  Doe. 

State  of  New  Jersey, 


SEY,  1 
'•         1 


County  of  Essex. 

Jane  Doe,  of  full  age,  being  duly  sworn  according  to  law 
upon  her  oath,  deposes  and  says  that  she  is  the  petitioner  in 
the  foregoing  petition  named,  and  that  the  matters  and  things 
therein  contained  are  true  to  the  best  of  her  knowledge  and 
belief. 

Deponent  further  says  that  the  aforesaid  John  Doe  isi 
possessed  of  personal  property  to  the  amount  of dol- 
lars and  is  also  seized  of  certain  real  estate  in  said  petition 
named  and  that  the  amount  of  the  income  from  the  same  is 
dollars  per  annum. 


Jane  Doe. 


Subscribed  and  sworn  to  this 
day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me. 

J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  notice  see  Form  289  ;  for  renunciation  see  Form 
290 ;   for  proof  of  service  of  notice  see  Form  38. 


Form  330.     Order  Appointing  Guardian  For  Lunatic  After  Inqui- 
sition Found. 

[See  2  Comp.  Stat.,  p.  2781,  section  i,  page  yTi,  supra,  and  Orphans' 
Court  Rules  13  and  14.  pages  747  and  752,  supra.] 

Essex  County  Orphans'  Court. 


GuARniAXSIIIP    OF    IXCOMPI-TEXTS.  I3II 

In  the  matter  of  the  guardian-  |  On  Petition  for  Letters  of 
ship  of   John   Doe.  a   Kniatic.  j  Guardianship. 

Order  Appointing  Cuardian. 

This  matter  being  opened  to  the  court  by  A.  li.,  proctor  for 
petitioner,  and  it  apj)earing  that  John  Doe.  of  the  County  of 
Essex  aforesaid,  has  been  duly  adjudged  a  kmatic  by  virtue  of 
a  writ  dc  lunatico  inquirciido,  issued  out  of  the  Court  of  Chanc- 
ery of  this  State  and  that  a  certified  copy  of  such  proceedings 
has  been  duly  filed  in  the  office  of  the  Surrogate  of  the  County 
of  Essex  aforesaid,  and  it  further  appearing  that  the  said 
John  Doe  is  possessed  of  personal  property  of  the  amount  of 

dollars,  and  that  the  amount  of  the  income  from  the 

real  property  owned  by  him  is dollars  per  year,  and  it 

appearing  that  all  persons  entitled  to  guardianship  of  the  said 
John  Doe  have  duly  renounced  their  said  right  to  guardianship 
and  requested  the  appointment  of  his  daughter,  Jane  Doe,  (or 
that  due  notice  of  this  application  Jias  been  given  to  all  persofis 
ill  interest). 

It  is  thereupon  on  this   day  of    ,   19.  . ., 

ORDERED  that  the  said  Jane  Doe  be  and  she  hereby  is  constituted 
and  appointed  the  guardian  of  the  said  John  Doe  a  lunatic  as 
aforesaid  and  that  letters  of  guardianship  be  issued  to  her 
accordingly  upon  her  entering  into  bond  to  the  Ordinary  in  the 

sum  of   dollars,  with  condition  prescribed  by  law, 

which  said  bond  shall  be  first  a])proved  by  this  court  as  to  the 
form  and  sureties  thereon. 

W.  P.  M., 
Judge. 

For  form  of  Bond  see  Form  292. 


Form  331.     Petition  for  Letters  of  Guardianship  Where  Lunatic 
Has  Been  Confined  in  Asj^lum  for  at  Least  One  Year. 

[See  2  Comp.  Stat.,  pase  27S6,  section  3-I1,  p.-i.t^f  774,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the  guardian-  |  On  Petition  for  Letters  of 
ship   of   John   Doc.   a   lunatic,  j  Guardianship. 

Petition. 

84 


13 12  Probate  Law  and  Practice. 

To  the  Orphans'  Court  of  the  County  of  Essex: 
The  petition  of  Jane  Doe,  respectfully  shows : 

1.  She   resides   at   Number    ....,    Street,   in   the 

of   ,  in  the  County  of  Essex  and  State  of 

New  Jersey.     John  Doe,  her  brother,  who  is   years 

of  age,  was  on  the day  of ,  19.  .  . ,  committed 

to  the ,  which  is  a  state  (or  county)  asylum  of  this 

state  for  the  insane,  upon  the  certificates  of  two  reputable  phy- 
sicians residing  in  this  state,  and  he  has  been  there  confined 
since  the  date  of  his  commitment  as  aforesaid  for  more  than 
one  year  last  past.  At  the  time  of  his  commitment  the  said 
John  Doe  was  a  resident  of  the  County  of  Essex,  and  no 
inquisition  of  lunacy  has  adjudged  the  said  John  Doe  an  idiot 
or  lunatic. 

2.  The  nearest  of  kin  of  the  said  John  Doe  are  your  pe- 
titioner, his  sister,  who  resides  at  the  address  as  hereinabove  set 
forth ;    a  brother,  James  Doe,  who  resides  at  Number    ..... 

Street,  in  the of ,  in  the  County  of 

and  State  of ;  and  a  brother  William  Doe, 

who  resides  at  Number  .  .  .  ., Street,  in  the of 

.  . ,  in  the  County  of   and  State  of   

All  of  the  said  nearest  of  kin  are  of  full  age,  with  the  exception 
of  William  Doe,  who  is  a  minor  of  the  age  of  seventeen  years, 
and  all  of  the  said  nearest  of  kin  entitled  to  guardianship 
of  the  said  John  Doe  have  duly  renounced  their  said  right  of 
guardianship  and  requested  the  appointment  of  your  petitioner 
(or  due  notice  of  this  application  has  been  given  to  all  of  the 
aforesaid  nearest  of  kin  entitled  to  guardianship) . 

3.  The   said   John   Doe   is   seized   of   personal   property   of 

the  value  of   dollars,  which  consists  of  a  bond  and 

mortgage  on  lands  in  the  City  of  Newark  given  by  A.  B.  for  the 

sum  of dollars,  and  the  sum  of dollars,  in 

the Bank,  in  the  City  o*f  Newark  :  (enumerate  all  of 

tJie  personal  property  ozvned  by  the  lunatic). 

Your  petitioner  therefore  prays  that  she  may  be  appointed 
guardian  of  the  said  John  Doe,  a  lunatic  as  aforesaid. 

Dated ; ,  Jane  Doe. 

- ,  i9--- 


Guardianship  of  Incompetents.  131 3 

State  of  New  Tersi 


RSEV,  ") 
■X.       I 


ss. 
County  of  Essex 

Jane  Doe,  being  duly  sworn  according  to  law  upon  her  oath, 
deposes  and  says  that  she  is  the  petitioner  in  the  foregoing  pe- 
tition named  and  that  the  matters  and  things  therein  contained 
are  true  to  the  best  of  her  knowledge  and  belief.  Deponent 
further  says  that  the  personal  property  owned  by  the  said  John 
Doe  consists  of  (Jicre  enumerate  the  personal  property  as  in  the 

petition)  and  will  not  exceed  in  value  the  sum  of 

dollars. 


Subscribed  and  sworn  to  this"^ 


• 


Tane  Doe. 


day  of   

19. . .,  at ,  before 

me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

The  statute  requires  that  there  be  annexed  to  the  petition  the 
affidavits  of  two  reputable  physicians  connected  with  said 
Asylum,  one  of  whom  shall  be  the  Superintendent  or  Medical 
Director  thereof,  see  Forms  324  and  325. 

For  form  of  notice  see  Form  289,  for  Renunciation  see  form 
290;    for  proof  of  service  of  notice  see  Form  38. 


Form  332.     Affidavit  of  Medical  Director  of  Asylum  as  to  Con- 
tinued Lunacy. 

[.See  2  Comp.  Stat.,  page  2786.  section  3-h.  i^ge  775.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  guardian-)  ( )n   Petition   for  Letters  of 
ship  of   John   Doe,   a   lunatic,  j  Guardianshi]). 

Affidavit  of  Medical  J  director. 


State  of  New  Jersey 
County  of  Esse 


■RSEY, 1 

>  SS. 

EX.       J 


G.  P.,  being  duly  sworn  according  to  law  upon   his  oath, 

deposes  and  says  that  he  is  Su])crintendent  of    a 

state  (or  county)  asylum  of  this  state  for  the  insane,  and  that. 


13 14  Probate  Law  and  Practice. 

acting  in   such  capacity,   he  is  charged  with  the  care  of  all 
patients  in  said  asyUim  ;  that  one  John  Doe  is  an  inmate  of  said 

asykim,  having  been  admitted  thereto  on  the day  of 

,  19.  .  .,  upon  the  certificates  of and , 

two  reputable  physicians  residing  in  this  state,  and  has  since 
been  continuously  confined  therein  as  an  insane  patient. 

Deponent  further  says  that  the  said  John  Doe  is  insane,  and 
by  reason  thereof  is  not  capable  of  receiving,  managing,  or 
taking  care  of  his  personal  property,  and  that  the  following  is 
a  full  medical  history  of  the  said  John  Doe  while  confined  in 
said  asylum;  {Here  insert  medical  history  from  Asylum  rec- 
ords). 


Subscribed  and  sworn  to  this 

day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 


G.  P. 


Porm  333.     Affidavit  of  Physician  Connected  With  Asylum  as  to 
Continued  Lunacy. 

[See  2  Comp.  Stat.,  page  2786,  section  3-h,  page  775,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  guardian-  "|  On  Petition  for  Letters  of 
ship   of   John   Doe,   a  lunatic.  (  Guardianship. 


iian-  "|  On  Petitio 
latic.  J  Guardiansl 

Affidavit  of  Physician. 


State  oe  New  Jersey,  | 
County  of  Essex.       j 

John  Smith,  being  duly  sworn  according  to  law  upon  his  oath, 

<ieposes  and  says  that  he  is  a  physician  connected  with  the 

Asylum,  an  institution  for  the  care  and  treatment  of  the  insane, 
and  that,  acting  in  such  capacity  he  has  charge  of  the  care  and 
treatment  of  the  inmates  of  the  ward  or  department  in  which 
John   Doe   is   now   confined.     That   the   said   John    Doe   was 

admitted  thereto  on  the day  of ,  19.  .  . ,  upon 

the  certificates  of and ,  two  reputable  phy- 


Guardianship  of  Ixcdmim-.tkxts.  131  S 

sicians  residing  in  this  state,  and  has  since  1)een  continnouslv 
confined  therein  as  an  insane  patient. 

Deponent  further  says  that  the  said  John  Doe  is  insane,  and 
by  reason  thereof  is  not  capable  of  receiving,  managing,  or 
taking  care  of  his  personal  i)roperty. 

Subscribed  and  sworn  to  this^ 

day  of   V  Toil X  Smith. 

19. .  .,  at ,  before J 

J.  C.  F., 

Notary  Public  of  N.  J. 


Form   334.      Order   Appointing    Guardian   for   Lunatic    Who    Has 
Been  Confined  in  Asylum  for  One  Year. 

[See  2  Comp.  Stat.,  page  2786.  section  3-I1.  page  774.  supra.] 

EssKx  CouxTv  Oki'HAxs'  Court. 

In  the  matter  of  the  guardian-  |  On  Petition  for  Letters  of 
ship  of   John   Doe,  a   lunatic.  (  Guardianship. 

Order  Appoint'uuj  Cuord'uui. 

It  appearing  by  the  ])etition  of  Jane  Doe,  filed  herein  that 

John  Doe,  is  a  lunatic,  and  has  been  since  the tlay  of 

,  ly.  .  .,  confined  in  the a  state  ( or  county) 

asylum  of  this  state  for  the  insane,  upon  the  certificates  of  two 
reputable  physicians  residing  in  this  state,  and  that  he  has  been 
insane  for  at  least  one  year  and  confined  in  said  asylum  for 
more  than  one  year  last  past,  and  it  further  appearing  that  at 
the  time  the  said  John  Doe  was  committed  to  the  aforesaid 
asylum  he  was  a  resident  of  the  County  of  Essex  aforesaid,  and 
that  the  said  John  Doe  is  possessed  of  personal  ])roperty  to 

the  amount   of    dollars,  and  that   no   in(|uisition   of 

lunacy  has  adjudged  the  said  John  Doe  an  idiot  or  lunatic  :  and 
it  further  api)earing  that  due  notice  of  this  ajjjjlication  has  been 
given  to  all  of  the  next  of  kin  and  persons  by  law  entitled  to 
guardianshi])  of  the  said  John  Doe  (or  that  all  persons  entitled 
by  la2u  to  the  (jnardianship  of  the  said  John  Doe  have  duly 
renounced  their  rif/lit  of  guardianship  and  requested  the  ap- 
pointment of  your  petitioner)  and  the  court  being  satisfied  that 


13 16  Probate  Law  and  Practice. 

the  said  John  Doe  is  incapable  of  receiving,  managing  or  taking 
care  of  his  personal  property,  and  that  a  guardian  should  be 
appointed  for  him,  and  that  Jane  Doe  is  a  suitable  person  to  be 
such  guardian. 

It  is  thereupon  on  this day  of ,  nineteen  hun- 
dred and   ORDERED  that  guardianship  of  the  said  John 

Doe  be  committed  to  the  said  Jane  Doe,  and  that  letters  of 
guardianship  be  issued  accordingly,  upon  the  said  Jane  Doe 

entering  into  bond  to  the  Ordinary  in  the  sum  of    

dollars,  conditioned  for  the  faithful  execution  of  her  office 
according  to  law,  which  bond  shall  be  first  approved  by  this 
court.  W.  P.  ^L, 

Judge. 

For  form  of  bond  see  Form  336^. 


Form   335.      Petition   for   Appointment   of   Guardian  for   Lunatic 
Who  is  Committed  to  Asylum  at  the  Expense  of  the  County. 

[See  2  Comp.  Stat.,  page  2785,  section  3-e,  page  7JS-  supra  and  Or- 
phans' Court  Rules  13  and  14,  pages  747  and  752.  supra.  1 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  appointment^   ^     t-.    •  •        r       t 

,.        r       T  1       T^  On  Petition  tor  Letters  ot 

ot   a  guardian  for    |ohn  Doe,  >„        ,.       ,  . 

,         .  •  I  (juardianship. 

a  lunatic.  J 

Petit  10)1. 
To  the  Orphans'  Court  of  the  County  of  Essex  : 
The  petition  of  Jane  Doe  respectfully  shows,  that : 

I.  Your  petitioner  resides  at  Number Street. 

in  the of ,  in  the  County  of  Essex  and  State  of 

New  Jersey.    On  the day  of ,  19.  .  . ,  John  Doe 

who  resided  in  the  Count}^  of  Essex  aforesaid,  was  duly  ad- 
judged insane  by  a  Judge  of  the  Court  of  Common  Pleas  of  the 
said  County  of  Essex  and  was,  on  the  certificate  of  such  Judge, 

committed  to ,  a  lunatic  asylum  in  this  State,  at  the 

expense  of  the  said  County  of  Essex.  The  said  John  Doe  is 
possessed  of  personal  property  to  the  amount  of  six  hundred 
dollars  (the  sum  of  zvhich  the  lunatic  is  possessed  cannot 
exceed  one  thousand  dollars). 


Guardianship  of  I.\compi:tf.xts.  1317 

2.  The  nearest  of  kin  of  the  said  John  Doe  are  voiir  pe- 
titioner,   his   daughter,    who    resides   as    hereinbefore   stated : 

William  Doe,  a  son,  who  resides  at  Number   

Street,  in  the of in  the  County  of   

and  State  of   ;    and  James  Doe,  a  son,  who  resides 

at  Number Street,  in  the  City  of  

in  the  County  of and  State  of all  of  whom 

are  of  full  age,  with  the  exception  of  William  Doe,  who  is  a 
minor  of  the  age  of  eighteen  years.  All  of  the  aforesaid 
nearest  of  kin  of  the  said  John  Doe  entitled  to  guardianship 
have  duly  renounced  their  said  right  of  guardianship  and 
requested  the  appointment  of  your  petitioner  (or  due  notice 
of  this  application  has  been  given  to  all  of  the  nearest  of  kin 
of  the  said  John  Doe  entitled  to  guardianship). 

Your  petitioner  therefore  prays  that  letters  of  guardian- 
ship of  the  said  John  Doe  may  be  granted  to  her. 

Jane  Doe. 

-  i9--- 

State  of  New  Jersey. 


■■! 


County  of  Essex.       ^ 

Jane  Doe,  being  duly  sworn  upon  her  oath  according  to  law, 
deposes  and  says  that  she  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  her  knowledge  and  belief. 

Deponent  further  says  that  the  said  John  Doe  is  possessed 
of  personal  property  to  the  amount  of  six  hundred  dollars, 
and  that  the  total  amomit  of  the  personal  property  possessed 
by  him  will  not  exceed  the  sum  of  one  thousand  dollars. 


Tane  Doe. 


Subscribed  and  sworn  to  this 

day  of    , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

For  form  of  renunciation  see  l^^orm  292:  for  nolice  of 
application,  Form  289;  for  proof  of  service  of  notice  Form 
38. 


1318  Probatl;  Law  and  Practice. 

Form   336.     Order   Appointing    Guardian   for    Lunatic   Who    Has 
Been  Committed  to  Asylum  at  the   Expense  of  the   County. 

[See  2  Comp.  Stat.,  p.  2785.  section  3-e.  page  --/Z,  supra,  and  Orphans' 
Court  Rules  13  and  14,  pages  747  and  752,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  guardian-  1   On  Petition  for  Letters  of 
ship  of   Jolm   Doe,   a  hmatic.  j   Guardianship. 

Order  Appoin\vng  Guardian. 

It  appearing  from  the  petition  of  Jane  Doe  filed  herein 
that  John  Doe  has  heretofore  been  adjudged  insane  by  a  Judge 
of  the  Court  of  Common  Pleas  of  the  County  of  Essex  and 

duly  committed  to   ,  a  lunatic  asylum  in  this  state, 

at  the  expense  of  the  said  County  of  Essex,  and  it  appearing 
that  the  said  John  Doe  is  possessed  of  personal  property  to 
the  amount  of  six  hundred  dollars,  and  that  all  of  the  next 
of  kin  of  said  John  Doe  have  renounced  their  right  of  guar- 
dianship and  requested  the  appointment  of  the  said  petitioner, 
{or  that  due  notice  of  this  application  has  been  given  to  all  of 
the  nearest  of  kin  of  the  said  John  Doe  entitled  to  guardian- 
ship). 

It  is  thereupon  on  this day  of ,  one  thou- 
sand nine  hundred  and    ,  ordered  that  the  said 

Jane  Doe  be  and  she  hereby  is  appointed  guardian  of  the  said 
John  Doe,  a  lunatic  as  aforesaid,  and  that  letters  of  guardian- 
ship be  issued  to  her  accordingly  upon  her  entering  into  bond 
to  the  Ordinary  in  the  sum  of  dollars,  with  condi- 
tion prescribed  by  law,  which  said  bond  shall  be  first  ap- 
proved by  this  court  as  to  the  form  and  sureties  thereon. 

W.  P.  M., 
Judge. 

For  form  of  bond  see  Form  336^. 


Form  336a.     Bond  of  Guardian  of  an  Incompetent. 

[See  2  Comp.  Stat.,  p.  2793,  section  15,  page  778,  supra.] 

Know  Alt,  Men  By  These  Presents  That  We,  William 
Doe,  as  principal  and  James  Smith,  and  William  Jones,  as 


GUARDIAXSIIIP    OF    IXCOMPKTKXTS.  13^9 

sureties,  are  held  and  firmly  bound  unto  the  Ordinary  or  Sur- 
rogate General  of  the   State  of    Xew  Jersey  in   the   sum   of 

dollars,  lawful  money  of  the  United   States  of 

America,  to  be  paid  to  the  said  Ordinary  or  Surrogate  Gen- 
eral ;  to  which  payment  well  and  truly  to  be  made,  we  bind 
ourselves,  our  Heirs,  Executors,  and  Administrators,  jointly 
and    severally,    firmly    by    these    presents.      Sealed    with    our 

Seals,  and  dated  the    day  of    in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  Coxditiox  of  This  Obligatiox  is  Such  That 
Whereas,  the  above  bounden  William  Doe  was  by  an  order 
of  the  Orphans'  Court  of  the  County  of  Essex,  made  on  the 

day  of   A.  D.,  nineteen  hundred  and 

duly  appointed  guardian  of  John  Doe,  a  lunatic : 

Now  Therefore,  if  the  said  Williain  Doe  shall  well  and 
truly  take  care  of  the  person  and  estate  of  the  said  John 
Doe  and  of  all  writings  and  evidences  touching  his  lands  and 
render  the  same  to  such  person  or  persons  as  by  law  are, 
or  may  be  entitled  to  receive  the  same,  and  render  a  just  and 
true  account  of  the  rents,  issues  and  profits  of  the  real  estate 
of  the  said  John  Doe,  and  if  any  part  should  be  ordered  to  be 
sold,  shall  render  a  just  and  true  account  of  the  moneys  arising 
on  the  sale  thereof,  and.  in  the  meantime  improve  the  said 
lands  and  tenements  to  the  best  advantage,  and  shall  commit 
no  waste,  or  destruction  thereof  or  thereon;  and  if  he  shall 
render  a  true  account  of  the  expenditures  and  disbursements 
of  the  goods,  chattels  and  personal  estate  of  said  John  Doe 
that  shall  come  to  his  hands,  then  this  obligation  to  be  void, 
otherwise  to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the    ^  Wh.lia.m   DoK,  (l.  s.) 

Presence  of  I  Jamks  Smith,  (l.  s.) 

John  C.  Fineran. 

J  W'ilham  Joxes,  (l.  s.) 

Annex  justification  of  sureties  as  in  Form  7. 


1320  Probate  Law  and  Practice. 

ADOPTION  PROCEEDINGS. 

I.     IN   CASE  OF  ABANDONMENT  OF  CHILD. 
Form  337.     Petition  for  Adoption. 

[See  2  Comp.  Stat.,  page  2807.  section  13,  pages  797  and  800,  supra.] 

Essex  County  Orphans'  Court. 
In   the   matter  of   the   adopti 


r     -r^       r^        -r^  ■  r  Ou   Petitioil. 

of  i).   G.   K..   a  minor. 


tion  I 


Petition. 


To  the  Orphans"  Court  of  the  County  of  Essex. 

The  petition  of   B.   W.   W.   and  A.   C.   \\'.,  his  wife,  who 

reside  at  Number Street,  in  the 

of    ,  in   the   County  of   Essex  and   State  of   New 

Jersey,  respectfully  shows  that  : 

1.  Your  petitioner,  B.  \V.  W.,  is  engaged  in  the  business  of 

;   his  age  is years,  and  the  age  of 

your  petitioner's  wife,  A.  C.  W.,  is years. 

2.  Your  petitioners  desire  to  adopt  B.  G.  R..  a  minor 
child  aged years,  who  is  now  living  with  your  peti- 
tioners. The  mother  and  father  of  said  child  are  unknown 
to  your  petitioners,  they  having  abandoned  said  child,  and  your 
petitioners  are  therefore  unable  to  secure  their  consent  to 
its  adoption. 

3.  The  said  child  is  not  po^ssessed  of  any  property  whatso- 
ever, so  far  as  your  petitioners  know,  and  as  they  verily 
believe. 

Your  petitioners  therefore  pray  that  this  court  will  appoint 
some  discreet  and  suitable  person  as  next  friend  of  the  said 
child,  to  the  end  that  he  may  give  his  consent  to  the  adop- 
tion of  said  child  by  your  petitioners,  and  that  the  court 
will  inquire  into  the  merits  of  this  petition  and  will,  by  its 
decree,  grant  to  your  petitioners  permission  to  adopt  said 
child,  and  will  adjudge  that  the  rights,  privileges  and  duties 
heretofore  existing  between  the  said  child  and  his  parents 
in  all  respects  be  at  an  end,  and  that  the  name  of  the  said 
child  be  changed  to  B.  G.  W.,  and  the  rights,  duties,  priv- 
ileges and  relations  between  said  child  and  your  petitioners. 


Adoption-  of  ^Iixors.  1321 

who  shall  l)c  his  i)arents  by  adoption,  may  thenceforth  in  all 
respects  be  the  same  as  if  the  said  child  had  been  born  to 
your  petitioners,  his  adopted  parents,  in  lawful  wedlock,  ex- 
cept only  as  otherwise  provided  in  an  act  entitled  "An  Act  con- 
cerning minors,  their  adoption,  custody  and  maintenance," 
approved  April  2d,  1902,  and  the  several  supplements  antl 
amendments  thereto. 

Dated    P..  W.  \V. 

,  19....  A.    C.    W. 


State  of  Xkw  Jkrs 
CorxTY  OF  E 


/    TKRSI'V,    ) 

>  ss. 

iSSKX.  j 


B.  W.  W.  and  A.  C.  \\'.,  personally  appeared  Ijefore  me 
and  being  severally  duly  sworn  on  their  oaths,  say  that  the 
facts  set  forth  in  the  foregoing  petition  by  them  signed  are 
in  all  respects  true  to  the  best  of  their  knowledge,  information 
and  belief,  and  that  they  have  made  diligent  inquirv  as  to  the 
residence  of  the  parents  of  said  child,  but  are  tuialjle  to  learn 
anvthing  as  to  their  whereabouts. 


Subscribed  and  sworn  to  this'~^ 

day  of ,  19.  .,  y 

at ,  before  me.  J 

R.  G.  B., 

Attorney  at  Law  of  Xew  jersev 


B.   W.  \\' 
A.    C.    W 


Form  338.     Order  Fixing  Day  for  Appointment  of  Next  Friend. 

[See  2  Comp.  Stat.,  page  2807,  section  13.  page  7<)J.  supra,  and  ili.  i)age 
2808,  section   15,  page  801,  supra.] 

EssKx  CouxTv  (  )Ri'iiAxs'  Court. 


In  the  matter  of  the  application' 
of  B.  W.  W.  and  A.  C.  W. 
for  leave  to  adopt  B.  G.  R.,  a 

minor. 


>-On  Petition. 


Order  I'lvituj  Pay  for 
.Ippoiiitiiit'iit  of  Next 
Friend. 


rpon  reading  the  petition  of  1!.  W.  W'..  and  .\.  C.  W'.,  duly 


1322  Probate  Law  and  Practice. 

verified,  wherein  it  is  among  other  things  prayed  that  permis- 
sion be  granted  them  to  adopt  B.  G.  R.  pursuant  to  the  pro- 
visions of  an  act  entitled  "An  Act  concerning  minors,  their 
adoption,  custody  and  maintenance,"  approved  April  2,  1902, 
and  the   several   supplements   and  amendments   thereto,   it  is 

Ordered  that  said  petition  and  the  affidavit  thereto  an- 
nexed be  filed  with  the  clerk  of  this  Court,  and  it  appearing 
that  it  is  necessary,  under  the  provisions  of  said  act,  that 
a    disinterested    and    suitable    person    be    appointed    as    next 

friend  to  said  child,  it  is  further  ordered  that the 

day  of next  at  ten  o'clock  in  the  fore- 
noon, at  the  Court  House,  in  the  City  of  Newark,  be  and  the 
same  is  hereby  fixed  as  the  time  and  place,  when  and  where 
the  appointment  of  a  next  friend  may  be  made,  and  it  is  fur- 
ther ordered  that  notice  of  said  petition  ^^nd  order  fixing  the 
time  and  place  when  and  where  the  appointment  of  a  next 

friend  will  be  made,  be  published  in  the  and 

,  two  newspapers  circulating  in  the  County  of 

Essex,  once  a  week  for  three  weeks  sticcessively. 

Done   in   open   court  this    day   of    , 

Nineteen  Hundred  and 

W.  P.  M., 

Judge. 

For  proof  of  publication  see  Form  114. 


Form  339.     Order  Appointing  Next  Friend  and  Fixing   Day  for 
Hearing. 

[See  2  Comp.   Stat.,   page  2807,   section    13,  page  797,   supra,  and   ib. 
page  2808,  section  15,  page  801.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  applica-^ 

tion  of  B.  W.  W.  and  A.  B.  I   ^     ^  ^.  . 
^ir    r      1  J     .  T,    ^    rO"  Petition. 

W.  for  leave  to  adopt  B.  G. 

R.,  a  minor. 

Order     Appointing     Nest 
Friend  and  Fixing  Day 
for  Hearing. 
Due  proof  having  been  made  of  the  publication  of  notice 


Adoption-  of  Minors.  1323 

of  the  petition  tiled  herein  and  of  the  time  and  place  when  and 
where  the  appointment  of  a  next  friend  of  the  said  child 
would  be  made,  as  directed  by  the  order  of  this  court,  made 

on  the day  of Nineteen  Hundred  and 

and  it  appearing  to  the  court  that  F.  G.  S.,  Jr.,  of 

tlie  City  of  Newark,  is  a  discreet  and  suital)le  person,  and 
no  cause  being  shown  to  the  contrary. 

It  is  ordered  that  the  said  F.  G.  S.,  Jr-.  be  and  he  is  hereby 
appointed  next  friend  to  the  said  B.  Ct.  R.,  a  minor  child,  for 
the  purposes  set  forth  in  an  act  entitled  "An  Act  concerning 
minors,  their  adoption,  custody  and  maintenance,"  approved 
April  2,  1902,  and  the  several  supplements  and  amendments 
thereto.  And  the  court  doth  assign  for  the  hearing  of  said 
petition   and  the  examination  of  the  parties  in  interest,   the 

day  of   ,  Nineteen  Hundred  and  

at  the  Court  House  in  the  City  of  Newark,  at  ten  o'clock  in 
the  forenoon. 

Done  in  open  court,  this  day  of  Nine- 
teen Hvmdred  and 

\V.  P.  M.. 

Judge. 


Form  340.     Consent  of  Next  Friend. 

[See  2  Comp.  Stat.,  page  2807.  section  13.  page  800,  supra.] 

EssKN  County  Orphans'  Court. 

In    the    matter   of    the    applica-"^ 

tionof  B.  W.  W.  andA^B.  I   Q^p^^.^.^^ 
\\  .  for  leave  to  adopt  B.  R.,  a  j 
minor.  J 

Consent  by  Xcxt  Pricnd. 

Whereas  the  Orphans'  Court  of  the  County  of   l'"sso\   did 

by  an  order  made  on  the   day  of   i<).  . , 

in  a  certain  proceeding  in  said  court  depending,  upon  the  aj)- 
jjlication  of  B.  W.  \X.  and  A.  B.  W.  for  leave  to  adoj)!  I'..  K.. 
a  minor  child,  api'oint  me,  F.  G.  S.,  Jr.,  of  the  City  of  .Newark. 
■County  of  Essex,  next  friend  of  the  said  1'.  R.  for  iho  pu'-- 


1324  Probate  Law  and  Practice. 

poses  set  forth  in  an  act  entitled  "An  Act  concerning  minors, 
their  adoption,  custody  and  maintenance,"  approved  i\pril  2d, 
1902,  and  the  several  supplements  and  amendments  thereto ; 
and 

Whereas  I  have  inquired  into  the  matter  and  have  heard  the 
examination  of  witnesses  taken  before  the  court  and  am 
satisfied  that  it  is  for  the  best  interests  of  said  minor,  child  that 
he  should  be  adopted  by  the  said  B.  W.  W.  and  A.  B.  W. 
under  the  provisions  of  said  act; 

Now,  therefore,  I,  the  said  F.  G.  S.,  Jr..  next  friend,  by 
appointment,  of  the  said  B.  R..  minor  child,  do  hereby  consent 
to  his  adoption  by  the  said  B.  W.  W.,  and  A.  B.  W.,  and  to  a 
change  of  his  name  to  B.  G.  W. 

Given  under  my  hand  and  seal  this day  of 

,  Nineteen   Hundred  and    

F.  G.  S..  Jr.,     (l.  s.) 


State  of  New  Jersey 
County  of  Essex 


'-'■  \  ss. 


Be  it  Remembered,  that  on  this day  of , 

in  the  year  of  Our  Lord,  One  Thousand  Nineteen  Hundred 
and  before  me.  the  subscriber,  a  Master  in  Chanc- 
ery of  the  State  of  New  Jersey,  personally  appeared  F.  G.  S.. 
Jr.,  who  I  am  satisfied  is  the  person  mentioned  in  the  within 
consent  and  to  whom  I  first  made  known  the  contents  thereof, 
and  thereupon  he  acknowledged  that  he  signed,  sealed  and 
delivered  the  same  as  his  voluntary  act  and  deed,  for  the  uses 
and  purposes  therein  expressed. 

A.  J.  B., 
Master  in  Chancery  of  New  Jersey. 


Form  341.     Decree  Permitting  Adoption. 

[See  2  Comp.  Stat.,  page  2808.  section  15,  page  803.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  application'^ 

of  B.  W.  W,  and  A.  B.  W.  I   ^     ^^  ,.,. 
r      1  1        -r,    ^    T-.         )^On  Petition, 

for  leave  to  adopt  B.  (7.  K.,  a 

minor. 

Decree  Peniiittiiig  Adoption. 
Whereas  B.  W.  W.  and  A.  B.  W.,  his  wife,  on  the 


Adoption  of  Minors.  ,  1325 

day  of ,  Xineteen  Hundred  and   presented 

their  petition  to  this  court  setting  forth  that  they  reside  at 
Xumber Street,  in  the  City  of  New- 
ark, in  the  County  of  Ejssex,  and  State  of  New  Jersey  :    that 

the  said  B.  W.  W.  is  by  occupation  a ;    that  the 

age  of  the  said  B.  W.  W.  is   years,  and  that 

the  age  of  A.  B.  W.,  his  wife,  is   years ;    that 

they  desire  to  adopt  B.  G.  R..  a  minor  child  aged 

years,  who  resides  in  tlie   of    in 

the  County  of  Essex  aforesaid,  and  is  now  H\ing  with  the 
said  petitioners ;  that  the  mother  and  father  of  said  child  are 
unknown  to  said  petitioners  they  having  abandoned  said 
minor  child;  that  said  minor  child  had  no  legal  guardian  who 
could  give  consent  to  such  adoption  and  has  no  property  what- 
soever, and  praying  that  a  discreet  and  suitable  person  might 
be  appointed  next  friend  of  said  child  to  the  end  that  he 
might  give  his  consent  to  such  adoption  and  that  the  court 
would  inquire  into  the  merits  of  said  petition,  and  would 
by  its  decree  grant  permission  to  the  said  B.  W.  \\'.  and  A. 
B.  W..  his  wife,  to  adopt  said  minor  child,  and  that  the  court 
would  change  the  name  of  the  child  to  B.  C.  W'.,  to  which 
petition  there  was  annexed  an  affidavit  of  said  petitioner  duly 
verified  according  to  law. 

Whereupon  and  upon  reading  the  aforesaid  petition  and 
affidavit,  the  court  ordered  that  the  same  be  filed  with  the 
clerk  of  this  court  and  the  same  was  filed  accordinglv :  and  it 
appearing  to  the  court  that  it  was  necessary  under  the  ])ro- 
visions  of  an  act  of  the  Legislature  of  this  State  entitled,  "An 
Act  concerning  minors,  their  adoption,  custody  and  mainte- 
nance." approved  April  2d,  1902,  and  the  several  supplements 
and  amendments  thereto,  that  a  person  should  be  apiwinted 
as  next  friend  to  said  child,  and  the  court  having  by  its  order 

fixed   the    day  of    Nineteen   TTun- 

drcd  anfl    as  the  time  and  place  where  such  a])- 

pointmcnt  would  be  made,  and  ordered  that  notice  of  said  peti- 
tion and  of  the  said  time  and  place  so  fixed  sliould  be  published 

in ,  and   twf)  newspapers 

circulating  in  the  said  C(nnit\-  of  Essex,  once  a  week  for  three 


1326  Probate  Law  and  Practice. 

weeks  successively ;  and  it  appearing  that  such  pubhcation 
was  made,  and  that  the  court  on  the  day  so  assigned,  to  wit. 

the    day  of    ,   Nineteen   Hundred  and 

,  by  its  order  appointed  F.  G.  S.,  Jr.,  Esq.,  of  Newark. 

in  the  County  of  Essex  aforesaid,  next  friend  of  the  said 
minor  child  for  the  jnirposes  set   forth  in  the  said  act,  and 

by   said  order  assigned  the    day  of    

Nineteen    Hundred   and    for    the    hearing   of    said 

petition  and  the  examination  of  the  parties  in  interest,  and  that 
on  the  day  so  appointed  the  hearing  of  said  petition  and  exam- 
ination    of     the     parties     in     interest     was     adjourned     for 

one  week,  to  wit —  until  the day  of 

,  Nineteen  Hundred  and 

And  it  appearing  that  on  the  said day  of 

19.  .,  the  court  proceeded  to  a  full  hearing  of  the  petition  and 
examination  of  the  petitioners,  and  of  all  parties  in  interest, 
under  oath ;  and  the  court  being  of  the  opinion  that  the  facts 
stated  in  the  petition  are  true,  and  being  satisfied  that  the  peti- 
tioners are  of  good  moral  character  and  of  reputable  standing 
in  the  community,  and  of  ability  to  properly  maintain  and  edu- 
cate said  child,  reference  being  had  to  the  degree  and  condition 
in  life  of  the  child's  parents  and  that  the  best  interests  of  the 
said  child  would  be  promoted  by  such  adoption.  And  the  said 
F.  G.  S.,  Jr.,  next  friend  of  the  child  by  appointment,  as  afore- 
said, having  on  the day  of 19.  . .  given  his  writ- 
ten consent  duly  acknowledged  to  such  adoption,  which  con- 
sent has  been  filed  with  the  clerk  of  this  court ; 

Now,  therefore,  by  virtue  of  said  act.  It  is  ordered,  ad- 
judged and  decreed  that  the  prayer  of  the  said  petitioners 
be  and  the  same  is  hereby  granted,  and  that  said  B.  G. 
R.  shall  hereafter  be  known  by  the  name  of  B.  G.  W. ;  and 
the  court  hereby  declares  and  adjudges  that  from  the  date  of 
this  decree  the  rights,  duties,  privileges  and  relations  hereto- 
fore existing  between  the  said  B.  G.  R.  and  his  parents  shall 
be  and  are  in  all  respects  at  an  end ;  and  that  the  rights, 
duties,  privileges  and  relations  between  the  said  B.  G.  R.  and 
the  said  B.  ^^^  W.  and  A.  B.  \\'..  his  parents  by  adoption,  are 
and  shall  henceforth  be  the  same  as  if  the  said  B.  G.  R.  had 
beeh  born  to  his  aforesaid  adopted  parents  in  lawful  wedlock, 


Adoption  of  Minors.  1327 

except  only  as  otherwise  provided  in  tlie  said  act  of  the  Legis- 
lature above  mentioned. 

Done  in  open  court  this  day  of One  Thou- 
sand Xine  Hundred  and 

\V.  P.  M.. 
T. 


II.     WERE  CONSENT  OF  PARENT  OBTAINED. 

Form  342.     Petition  for  Adoption. 

[See  2  Conip.  Stat.,  page  2807,  section  13.  page  798,  supra.] 

Essex  County  Orph.\ns'  Cottrt. 


In  the  matter  of  the  adoption  w^  ,   ^     ,-.    •  • 
^    ^  .  ^  5>  On  Petition. 

R   L.,   a  minor. 


'•] 


Petition. 


To  the  Orphans'  Court  of  the  County  of  Esse.x  : —  ' 

The  petition  of  P.  \'.  S..  and  L.  B.  S..  his  wife,  who  reside 

at  No , Street,  in  the  City  of  Newark, 

in  the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : — 

1.  Your  petitioner,  P.  A'.  S.,  is  engaged  in  the  business  of 

;    his  age  is years,  and  the  age  of 

3'our  petitioner's  said  wife,  L.  B.  S.,  is    years. 

2.  Your  petitioners  desire  to  adopt  R.  L.,  a  minor  child, 

aged  about    years,  who  is  now  living  with  your 

petitioners  at  their  residence  hereinabove  mentioned. 

3.  That  the  parents  of  said  child  are  B.  L..  and  A.  L. 
B.  L.,  the  mother  of  said  child  is  dead,  and  A.  L..  the  father  of 

said  child,  who  resides  at  No , Street,  in  the 

of  County  of  Essex  and  State  of  New  Jer- 
sey, has  given  his  consent  to  the  adoption  of  said  minor  child 
by  your  petitioners,  which  consent  is  in  writing,  duly  signed 
and  acknowledged  by  the  said  ])arcnt.  and  is  hereunto  an- 
nexed. 

4.  The  said  child  is  not  |)Ossessed  of  any  ])ropcrly  what- 
soever, so  far  as  your  petitioners  know  and  as  tlioy  \erily 
believe. 


1328  Probate;  Law  and  Practice. 

Your  petitioners  therefore  pray  that  the  court  will  inquire 
into  the  merits  of  this  petition,  and  will  by  its  decree  grant 
unto  your  petitioners  permission  to  adopt  said  child,  and 
will  adjudge  that  the  rights,  privileges  and  duties  heretofore 
existing  between  the  said  child  and  his  parent  shall,  in  all 
respects,  be  at  an  end,  excepting  the  right  of  inheritance  ;  that 
the  name  of  the  child  be  changed  to  P.  E.  S. ;  and  that  the 
rights,  duties,  privileges  and  relations  between  the  said  child 
and  your  petitioners,  who  shall  be  his  parents  by  adoption, 
may  thenceforth  in  all  respects  be  the  same,  including  the 
right  of  inheritance,  as  if  the  said  child  had  been  born  to  your 
petitioners,  his  adopted  parents,  in  lawful  wedlock,  except 
only  as  otherwise  provided  in  an  act  entitled  "An  Act  concern- 
ing minors,  their  adoption,  custody  and  maintenance,"  ap- 
proved April  2d,  1902,  and  the  several  supplements  and 
amendments  thereto. 

Dated    

19....,  P.  V.  S.     (l.  s.) 

L.  B.  S.      (l.  s.) 


State  of  New  Jersey, 
County  oe  Essex. 


''  I  ss. 


P.  V.  S.,  and  L.  B.  S.,  his  wife,  personally  appeared  before 
me,  and  being  severally  sworn  on  their  respective  oaths,  say 
that  the  facts  set  forth  in  the  foregoing  petition,  by  them 
signed,  are  in  all  respects  true  to  the  l^est  of  their  knowledge, 
information  and  belief. 

Sworn  and  subscribed  to  be-"^  ^ 

fore    me,    this    dav  >  too' 

of A.D.,    19...  J  ^-  ^-  ^■ 

J.  R.  W., 
A  blaster  in  Chancery  of  New 
Jersey. 


Form  343.     Consent  of  Parent. 

[See  2  Comp.  Stat.,  page  2S0J,  section  13,  page  798,  supra.] 

I,  A.  L.,  parent  of  R.  L.,  a  minor  child,  aged , 

born  on  the   day    19 .  . ,  do  hereby 


Adoptiox  of  Mixors.  1329 

consent  to  his  adoption  by  P.  \'.  S.  and  L.  B.  S..  his  wife,  and 
to  the  change  of  his  name  to  P.  E.  S..  in  accordance  with  tlie 
provisions  of  an  Act  of  the  Legislature  entitled.  "An  Act  con- 
cerning minors,  their  adoption,  custody  and  maintenance." 
approved  April  2,  1902,  and  the  several  supplements  and 
amendments  thereto. 

Witness  my  hand  and  seal  this day  of 

One  Thousand  Xine  Hundred  and 

A.  L.     (l.s.) 


State  of  Xew  |ei 

'  V  ss 
County  of  Ese 


[ersev,  ") 
;sEx.     I 


BE  IT  REMEMBERED,  That  on  this day  of , 

One   Thousand    Xine    Hundred   and    before   me.   the 

subscriber,  a  blaster  in  Chancery  of  X'^ew  Jersey,  personally 
appeared  A.  L.,  who  I  am  satisfied  is  the  person  named  in  and 
who  executed  the  within  instrument,  and  I  having  first  made 
known  to  him  the  contents  thereof,  he  acknowledged  that  he 
signed,  sealed  and  delivered  the  same  as  his  voluntary  act 
and  deed  for  the  purposes  therein  expressed. 

J.  R.  W.. 
Master  in  Chancerv  of  Xew  Tersev. 


Form  344.     Order  Fi:!dng  Day  for  Hearing. 

[See  2  Comp.  Stat.,  page  2808,  section  15,  page  802,  supra.] 

Essex  County  Orph.vxs'  Coirt. 

In  the  matter  of  the  application"^ 

of  P.  V.  S.  and  L.  B.  S..  his      „     ^    .,. 

..     ^      ,  ,        .^-  >  On  Petition, 

wife,  for  leave  to  adopt  R.  1... 

a  minor 

Order  Fixing  Pay  for  Hcarin;/. 

Upon  reading  the  petition  of  \\  \  .  S.  and  L.  !'>.  S..  his 
wife,  duly  verified,  wherein  it  is  among  otlicr  things  prayed 
that  ])ermission  be  granted  them  to  adopt  R.  L.,  pursuant 
to  the  provisions  of  an  act,  entitled  "An  Act  concerning  minors, 
their  adoption,  custody  and  maintenance,"  ap])rt)vcd  April 
2,  1902,  and  the  several  sufjfilements  and  rimcnduicnts  thereto. 


1330  Probate  Law  and  Practice. 

together  with  the  consent  of  A.  L.,  parent  of  the  said  R.  L., 
duly  acknowledged  thereunto  annexed. 

IT   IS   ORDERED   that    the   said   petition,   affidavits   and   con- 
sent thereto  be  filed  with  the  clerk  of  this   court,   and  that 

the   day  of   I9-  • ,  at  ten  o'clock  in 

the  forenoon,  at  the  Court  House,  in  the  City  of  Newark,  is 
hereby  appointed  for  the  hearing  of  said  petition  and  the 
examination  under  oath  of  the  parties  in  interest. 

Done  in  open  court,  this    day  of    , 

One  Thousand  Nine  Hundred  and 

W.  P.  M., 
Judge. 


Form  346.     Order  for  Adoption. 

[See  2  Comp.  Stat.,  page  2808,  section  15,  page  803,  supra.] 

Essex  County  Orphans'  Court. 


In  the  matter  of  the  application 
of  P.  V.  S.  and  L.  B.  S.,  his 
wife,  for  leave  to  adopt  R.  L., 
a  minor. 


>-On   Petition. 

Order. 


Whereas  P.  V.  S.  and  L.  B.  S.,  his  wife,  on  the   

day  of 19-  •,  presented  their  petition  to  this  court. 

setting  forth  that  they  reside  at  Number   ,   

Street,  in  the  City  of  Newark,  in  the  County  of  Essex  and 
State  of  New  Jersey ;   that  the  said  P.  V.  S.,  is  by  occupation 

a ;  that  the  age  of  the  said  P.  V.  S.,  is 

years,  and  the  age  of  the  said  L.  B.  S.,  his  wife,  is 

years;    That  they  desire  to  adopt  R.  L.,  a  minor  child,  aged 

about   years,  and  who  is  now  living  with  the  said 

P.  \'.  S.,  and  L.  B.  S..  his  wife,  at  Number , 

Street,   in  the   City  of   Newark,   in   the  County  of 

Essex  and  State  of  New  Jersey;  that  the  mother  of  said 
child  is  dead  and  that  his  father  is  A.  L..  and  that  said  child 
has  no  property  whatsoever ;  and  praying  that  the  court  would 
inquire  into  the  merits  of  the  said  petition,  and  would  by 
its  decree  grant  permission  to  the  said  P.  \  .  S.  and  L.  B.  S., 


Adoption  of  ^Minors.  1331 

his  wife,  to  adopt  said  child,  and  would  change  the  name  of 
the  said  child  to  P.  E.  S..  to  which  petition  there  was  an- 
nexed an  affidavit  of  the  said  petitioners,  duly  verifying  the 
same  according  to  law,  and  the  duly  acknowledged  written 
consent  of  A.  L.,  the  father  of  said  R.  L.,  to  the  adoption  of 
the  said  R.  L.  by  the  said  P.  \'.  S.  and  L.  B.  S.,  his  wife,  and 
to  the  change  of  the  name  of  the  said  R.  L.  to  P.  E.  S. 

Whereupon,  and  upon  reading  the  said  petition,  affidavit 
and  consent,  the  court  ordered  that  the  same  be  filed  with  the 
clerk  of  the  court :    and  the  same  were  filed  accordingly,  and 

the  court  thereupon  assigned  the   dav  of 

A.  D.,  Nineteen  Hundred  and   ,  for  the  hearing  of 

said  petition,  and  the  examination  of  the  parties  in  interest; 
and.  upon  the  day  so  appointed  the  court  proceeded  to  a  full 
hearing  of  the  petition  and  the  examination  of  the  petitioners, 
the  said  minor  child,  and  the  father  of  the  said  child,  and  of 
all  other  parties  in  interest,  under  oath,  and  the  court  being 
of  the  opinion  that  the  facts  stated  in  the  petition  are  true, 
and  being  satisfied  that  the  petitioners  are  of  good  moral 
character  and  of  reputable  standing  in  the  communitv,  and 
of  aljility  to  properly  maintain  and  educate  said  child,  reference 
being  had  to  the  degree  and  condition  in  life  of  the  child's 
parent,  and  that  the  best  interests  of  the  child  would  be  pro- 
moted by  such  adoption ;. 

NOW  THEREFORE,  by  virtue  of  the  Act  in  such  case  made 
and  provided  it  is  ordered,  adjudged  and  decreed  that  the 
prayer  of  the  said  petitioners  be  and  the  same  is  hereby  granted, 
and  that  said  R.  L.,  a  minor  child  of  A.  L.,  shall  hereafter  be 
known  by  the  name  of  P.  E.  S. ;  and  it  is  further  ordered, 
adjudged  and  decreed  that  from  the  date  of  this  decree,  the 
rights,  duties,  privileges  and  relations  heretofore  existing 
between  the  said  R.  L.  and  his  parent,  the  said  A.  I...  shall  be. 
and  are  in  all  respects  at  an  end,  excej^ting  the  right  of  in- 
heritance; and  that  the  rights,  privileges,  duties  and  relations 
between  the  said  R.  L.  and  the  said  P.  V.  S.  and  L.  P.  S.,  his 
wife,  his  parents  by  adoption,  are  and  shall  henceforth  be 
the  same,  inclucling  the  right  of  inheritance,  as  if  the  said 
R.   L.   had  been   born   to  the  said   adopted   parents   in   lawful 


i33-  Probatk  Law  and  Practice. 

wedlock,  except  only  as  otherwise  provided  in  an  act  entitled 
"An  Act  concerning  minors,  their  adoption,  custody  and  main- 
tenance," approved  April  2d,  1902,  and  the  several  supple- 
ments and  amendments  thereto. 

•    Done  in  open  court  this day  of A.  D.. 

One  Thousand  Nine  Hundred  and 

W.  P.  M., 
Judge. 


III.     IN    CASE    OF    SURRENDER    OF    CHILD    TO  CHIL- 
DREN'S AID  SOCIETY  &c. 

Form  348.     Petition  for  Adoption  in  Case  Where  Parents  Have 
Surrendered  Custody  of  Child  to  Children's  Aid  Society. 

[See  2  Comp.  Stat.,  page  2807,  section  13,  page  800.  supra.] 

Essex  County  Orphans'  Court. 


In   the   matter   of   the   adoption  ,    „     -n,    ■  ■ 
r  ^f    r^  ■  >  On  Petition, 

of  Al.  C.  a  minor. 


1  On 


Petition. 


To  the  Orphans'  Court  of  the  County  of  Essex. 

The  petition  of  E.  H.  and  R.  H.,  of  the  City  of , 

the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that : 

1.  Your  petitioners  are  desirous  of  adopting  a  certain 
minor  child  named  M.  G.,  and  are  desirous  that  the  name  of 
said  child  shall  be  changed  to  G.  H.  Said  child  is  about  the 
age  of  years,  and  is  now  residing  with  your  peti- 
tioners at   Number    .  . .  .,    Street ,   in  the 

City  and  County  aforesaid ;  said  child  is  possessed  of  no  prop- 
erty, real  or  personal,  to  the  petitioners'  knowledge,  except  the 
clothing,  toys,  books  and  such  other  articles  provided  for  her 
use  by  your  petitioners. 

2.  Said  child  was  released,  in  writing,  by  the  father  for 
the  purpose  of  adoption,  and  was  placed  in^the  care  of  the 

Children's  Aid  Association,  a  corporation  of  the 

State  of  New  Jersey,  Head  Otfice  Number  


Adoption*  of  Minors.  1333 

Street,    on  or  aboul  the    dav  of 

,  19.  ..     The  mother  of  said  child  is  dead. 

3.  Your  petitioners  are  of  the  ages  of and 

years  respectively. 

4.  Your  petitioners  are  of  good  moral  character  and  of 
excellent  standing  in  the  community,  and  of  ability  to  prop- 
erly clothe,  maintain  and  educate  the  child  sought  to  be  adopt- 
ed,, having  reference  to  the  condition  and  degree  in  life  of  the 
child's  parents,  and  the  best  interests  of  said  child  will  be 
promoted  by  such  adoption  :    said  child  was  placed  in  the  care 

of  your  petitioners  by  the Children's  Aid 

Association  on  or  about  the day  of ,  19.  . 

and  said   Children's  Aid  Association  has 

consented  to  the  adoption  of  tlie  said  child  ;  and  during  the 
time  said  child  has  been  placed  in  your  jietitioners'  care  she 
has  remained  in  the  home  of  your  petitioners,  and  has  been 
wholly  maintained  and  educated  by  }-our  jietitioners  at  their 
expense. 

Your  petitioners  therefore  pray  that  a  decree  may  be  made 
by  this  court,  in  conformity  with  the  Act  entitled,  "An  .Act 
concerning  minors,  their  adoption,  custody  and  maintenance" 
(Revision  of  1902)  and  the  several  supplements  and  amend- 
ments thereto,  declaring  and  adjudging  that  from  the  date  of 
said  decree  the  name  of  said  child  shall  be  changed  to  and  be 
G.  H.,  and  that  the  rights,  duties,  privileges  and  relations  there- 
tofore existing  between  the  said  child  and  her  |)arcnts  shall  be 
in  all  respects  at  an  end,  except  the  right  of  inheritance ;  and 
that  the  rights,  duties,  privileges  and  relations  between  said 
child  and  your  petitioners,  parents  by  a(l()])tion,  shall  thence- 
forth in  all  respects  be  the  same,  including  the  right  of  in- 
heritance, as  if  said  child  had  been  born  to  them  in  lawful  wed- 
lock, except  only  as  otherwise  ]:)rovided  in  the  said  act,  with 
all  other  rights  as  by  said  act  pro\ided. 

Dated  Newark,  X.   T..  E.  H. 

,19...  R.  H. 

Petitioners. 


State  of  Nkw  JI•:KSI•:^ 
County  of  Esskx 


! 

K.   U.  and  ]\.    II..  being  se\crall\    duly  sworn  accorch'ng  to 


1334  Probate  Law  and  Practice. 

law  upon  their  oaths,  depose  and  say  that  they  are  the  peti- 
tioners in  the  foregoing  petition  named,  and  that  the  matters 
and  things  therein  contained  are  true  to  the  best  of  their 
knowledge  and  belief. 

Subscribed    and    sworn    to    this"^ 

•••-•••••day  of  ,  I9--.  ^  ^    ^ 

at  Newark,  N.  ].,  before  me.         J 
J.  C.  F.,  " 
Notary  Public  of  N.  J. 


Form  349.     Consent  of  Society  to  Adoption. 

[See  2  Comp.  Stat.,  page  2807,  section  13,  page  800,  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  application"^ 

of  E.  H.  and  R.  H.,  for  the  Lon  Petition, 
adoption  of  M.  G.,  a  minor. J 

Consent. 

The Children's  Aid  Association  of  New  Jersey, 

a  corporation  of  the  State  of  New  Jersey,  having  legally  ac- 
quired the  custody  and  control  of  M.  C,  minor  child  now  about 

years  of  age,  does  hereby  consent  to  her  adoption 

by  E.  H.  and  his  wife,  R.  H.,  -and  to  the  change  of  her  name 
to  G.  H.,  in  accordance  with  the  provisions  of  an  Act  of  the 
Legislature  of  the  State  of  New  Jersey,  entitled  "An  Act  con- 
cerning minors,  their  adoption,  custody  and  maintenance," 
(Revision  1902),  approved  April  2nd,  1902.  and  the  several 
supplements  of  and  amendments  thereto. 

In  witness  whereof.  The Children's  Aid  Associa- 
tion of  New  Jersey,  has  caused  this  consent  to  be  signed  by  its 
president  and  its  corporate  seal  to  be  hereto  affixed  and  attested 
by  its  secretary,  this day  of 19. .  . 

The  Children's  Aid  Association  of  New  Jersey. 

By   

President.  (c.  s.) 

Attest : 

,  Secretary. 


Adoption  of  ^Minors.  1335 


State  of  Xfw  Jkkskv, 
County  of  Essex. 


i 


BE  IT  REMEMBEKEU  that  Oil  this day  of , 

19.  ... ,  before  me,  the  subscriber,  personally  appeared 

who  being  by  me  duly  sworn  does  depose  and  make  proof  to 
my  satisfaction  that  he  well  knows  the  corporate  seal  of  The 

Children's   Aid   Association  of   New  Jersey,   the 

corporation  named  in  the  foregoing  instrument;  that  the 
seal  thereto  affixed  is  the  proper  corporate  seal  of  the  said 
corporation ;   that  said  seal  was  so  affixed  thereto  and  the  said 

consent  signed  and  delivered  by ,"who  was  at  the  date 

and  execution  thereof  the  president  of  said  corporation,  in 
the  presence  of  deponent,  as  the  voluntary  act  and  deed  of 
the  said  corporation,  and  that  deponent  thereupon  signed  the 
same  as  subscribing  witness. 

Subscribed  and  sworn  to  this^ 

day  of    ,   19..,  >  C.  A.  S., 

at    Newark,    N.    ].,    before   me, J  Secretary. 

J.  A.  C, 

Attorney  at  Law  of  New  Jersey. 


Form  350.      Order  Fixing  Day  for  Hearing. 

[See  2  Comp.  Stat.,  page  2808,  section  15,  page  801,  sui)ra.] 

Essex  Countv  Orph.\ns'  Court. 

In  the  matter  of  the  application""^ 
for   the   adoption   of    M.    G.,    a  VOn  Petition, 
minor.  J 

Order  Fixing  Day 
for  Hearing. 

A  petition  in  the  above  entitled  matter  having  l)ecn  presented 
l)y  E.  11.,  and  his  wife,  R.  11.,  for  the  adoption  of  M.  G.,  an 
infant,  and  for  the  change  of  her  name  to  G.  1 1..  in  accordance- 
with  the  provisions  of  an  act  entitled,  "An  Act  concerning 
minors,  their  adoption,  custody  and  maintenance,"  (Revision 
of  1902),  approved  April  2d,  1902,  and  the  several  sui)ple- 
ments  to  and  amendments  thereof. 


1^3^  Probate  Law  and  Practice. 

It  is  ordered  that  the  said  petition,  affidavits  and  consent 
thereto  be  filed  with  the  clerk  of  this  court  and  that  the 
day  of 19.  ..  at  ten  o'clock  in  the  fore- 
noon at  the  Court  House  in  the  City  of  Newark,  is  hereby 
appointed  for  the  hearing  of  said  petition  and  the  examination 
under  oath  of  the  parties  in  interest. 

Done  in  open  court  this day  of ,  One 

Thousand  Nine  Hundred  and 

W.  P.  M., 
Judge. 


Form  351.     Decree  Permitting  Adoption. 

[See  2  Comp.  Stat.,  page  2808.  section  15.  page  803.  supra.] 

Essex  Couxtv  Orpiiaxs'  Court. 

In  th.e  matter  of  the  adoption  of  )   .,     -r,    .  . 
, ,    „  .  >  On  Petition. 

M.  (t.,  a  minor.  j 

Decree   Permitting 
Adoption. 

Whereas,  E.  H.  and  R.  H.,  his  wife,  on  the day  of 

19.  •,  presented  their  petition,  setting  forth  that 

they  reside  at  Number Street,  in  the 

City  of in  the  County  of  Essex  and  State  of  New 

Jersey ;   that  the  age  of  the  said  E.  H.  is years,  and  the 

age  of  the  said  R.  H.  is   years  ;    that  they  desire  to 

adopt  M.  G.,  a  minor  child  of  the  age  of years,  who 

resides  in  the    of    in  the  County  of 

,  and  State  of and  is  now  living  with 

petitioners  at  Number Street,  in  the 

of in  the  County  of  Essex  and  State 

of  New  Jersey ;    that  the  father  of  the  said  child  surrendered 

the  care  and  control  of  said  child  to  the   Children's 

Aid  Society,  a  corporation  organized  under  the  laws  of  New 
Jersey  to  care  for  children,  who  have  duly  consented  to  the 
adoption  of  said  child  by  a  writing  under  their  common  seal ; 
that  the  mother  of  said  cliild  is  dead,  and  praying  that  the 
court,  by  its  decree,  would  grant  permission  to  the  said  E.  H. 
and  R.  H.  to  adopt  said  child,  and  that  the  court  would  change 


Adoption  of  Minors.  1337 

the  name  of  said  child  to  G.  H.  ;  to  wliieh  petition  there  was 
annexed  an  affida\it  of  the  petitioners,  duly  verif\ins:  the  same 
according  to  law. 

Whereupon,  and  upon  reading  the  said  petition  and  atihdaxit, 
the  court  ordered  that  the  same  be  tiled  with  the  clerk 
of  this  court  and  the  same  were  tiled  accordingly :    and  ditl 

assign  the   day  of   19.  . .  at  ten  o'clock 

in  the  forenoon,  at  the  County  Court  Mouse,  in  the  City  of 
Xewark,  as  the  time  and  place  for  the  hearing  of  the  said 
petition  and  the  examination  of  the  parties  in  interest,  by 
virtue  of  an  Act  of  the  Legislature  entitled  "An  Act  concern- 
ing minors,  their  adoption,  custody  and  maintenance"  (Revi- 
sion of  1902)  and  the  several  supplements  thereto  and  amend- 
ments thereof. 

And  whereas,  on  the  day  so  appointed  the  court  proceeded 
to  a  full  hearing  of  the  petition  and  to  the  examination  of 
the  petitioners  and  the  said  child  and  all  parties  in  interest, 
under  oath,  and  the  court,  from  the  testimony  so  taken,  being 
of  the  opinion  that  the  facts  stated  in  the  petition  are  true, 
and  that  the  petitioners  are  of  good  moral  character  and  of 
reputable  standing  in  the  community,  and  of  ability  to  properly 
maintain  and  educate  the  said  child — having  reference  to  the 
condition  in  life  of  the  said  child's  parents — and  that  the  best 
interests  of  the  said  child  will  be  promoted  by  such  adoption. 

Now,  Therefore,  by  virtue  of  the  said  Act,  it  is  ordered, 
adjudged  and  decreed  that  the  prayer  of  the  said  petitioners 
be  granted,  and  that  the  said  M.  G.  shall  hereafter  be  known 
by  the  name  of  G.  H.,  and  it  is  further  ordered  adjudged  and 
decreed  that  from  the  date  hereof  the  rights,  duties,  privileges 
and  relations  heretofore  existing  between  the  said  M.  G.  and 
her  parents  shall  be  in  all  respects  at  an  end,  excepting  the 
right  of  inheritance;  and  that  the  rights,  duties,  i)rivilcges 
and  relations  between  the  said  M.  G.  and  the  said  E.  H.  and 
i\.  If.  are  and  henceforth  shall  be  the  same,  including  the 
right  of  inheritance,  as  if  the  said  M.  G.  had  been  born  to 
the  said  E.  H.  and  K.  H.,  her  adopted  parents,  in  lawful  wed- 
lock, except  only  as  otherwise  ])rovidcd  in  the  .Act  of  the 
Legislature  above  mentioned. 


1338  Probate  Law  and  Practice. 

•  Done  in  open  court,  fhis day  of ,  one  thou- 
sand nine  hundred  and 

W.  P.  M., 
Judge. 


PROCEEDINGS  TO  SET  ASIDE  DECREE  OF 
SURROGATE. 

Form  352.     Petition  to  Set  Aside  Decree  of  Surrogate. 

[See  Chapter  IV,  page  68,  supra.] 

Essex  County  Surrogate's  Court. 


In   the   matter  of   the  estate   of 
John  Doe,  deceased. 


On  Petition  to  Set  Aside 
Decree  of  Surrogate  Grant- 
ing Letters  of  Administra- 
tion. 

Petition. 


To  F.  G.  S.,  Jr.,  Surrogate  of  the  County  of  Essex: 

The  petition  of  Lilly  Doe,  of  the of ,  in  the 

county  of    and  State  of    ,  respectfully 

shows  that : 

1.  She  is  the  lawful  wife  of  John  Doe.  who  departed  this 

life  on  the day  of ,  19.  . .,  intestate,  and  was 

lawfully  joined  in  the  bonds  of  matrimony  with  him  on  the 

day  of ,  19.  .  .,  in  the of and 

State  of I 

2.  On  the day  of   ,  19.  .  .,  by  virtue  of  an 

order  of  the  Surrogate  of  the  County  of  Essex,  letters  of 
administration  upon  the  estate  of  the  said  John  Doe,  deceased, 
were  issued  by  the  Surrogate  of  the  County  of  Essex,  afore- 
said, to  William  Jones,  upon  his  application. 

3.  William  Jones,  the  said  administrator  at  the  time  of  the 
death  of  the  said  John  Doe,  knew  that  the  said  John  Doe 
was  married  to  your  petitioner,  who  is  lawfully  entitled  to  the 
administration  of  the  estate  of  said  John  Doe,  her  deceased 
husband. 

4.  No  notice  of  the  application  of  the  said  William  Jones 
for  letters  of  administration  upon  the  estate  of  the  said  John 


Setting  Aside  Decrees.  1339 

Doe,  deceased,  was  served  upon  your  petitioner,  nor  has  she 
renounced  her  right  to  administer  upon  the  estate  of  the 
said  John   Doe,  nor  had  she  any  knowledge  of   such   appH- 

cation  until  she  inadvertently  learned  of  the  same  on  the 

day  of ,  19.  . . 

5.  The  petition  filed  by  the  said  William  Jones  for  adminis- 
tration, as  aforesaid,  does  not  recite  your  petitioner  as  one  of 
the  next  of  kin  or  heirs  at  law  of  the  said  John  Doe,  and  your 
petitioner  is  informed  and  verily  believes  that  at  the  time  of 
filing  said  petition,  the  said  William  Jones  knew  that  he  was 
not  entitled  to  administration  upon  the  estate  of  the  said  John 
Doe,  and  your  petitioner  charges  that  the  said  letters  of  ad- 
ministration issued  to  the  said  William  Jones  were  obtained 
through  false  and  fraudulent  representations  made  to  this 
court  by  the  said  W^illiam  Jones,  and  through  the  concealment 
of  the  fact  that  your  petitioner  is  the  lawful  widow  of  the  said 
John  Doe,  and  as  such  lawfully  entitled  to  the  admiinstration 
of  his  estate. 

Your  petitioner  therefore  prays  that  the  decree  of  this  court 

made  on  the    day  of    ,    19...,  as  aforesaid, 

ordering  that  letters  of  administration  upon  the  estate  of  the 
said  John  Doe,  deceased,  be  issued  to  William  Jones  aforesaid, 
be  opened,  set  aside  and  for  nothing  holden. 

Dated  Newark,  N.  J., 


LiLEV  Doe 
.,  19... 


The  foregoing  petition  should  be  fully  verified  by  an  affi- 
davit reciting  and  verifying  every  fact  set  up  in  the  petition  in 
the  same  manner  as  an  injunction  bill  is  verified. 


Form    353.      Order    to    Show    Cause    Why    Decree    of    Surrogate 
Should  Not  be  Set  Aside. 

[.'>cc  Chapter  IV.  page  6(S.  supra.] 

Essex  County  Sukkocate's  Coukt. 

'^    On    I'etition   to    Set   Aside 
In   the  matter  of   the   estate  of  [  Decree  of  Surrogate  Grant- 
John  Doe,  deceased.  f  ing  Letters  of  Administra- 
tion. 

RkIc  to  Show  Cause. 
It  ajjpearing  by  the  petition  of  T,illy  Doc,  liled  herein,  that  on 


1340  Probate  Law  and  Practice. 

the day  of ,  19.  .  .,  by  virtue  of  an  order  of 

this  court  made  on  that  day,  letters  of  administration  upon  the 
estate  of  the  said  John  Doe,  deceased,  were  issued  to  WilHam 
Jones,  and  that  no  notice  of  the  aforesaid  appHcation  for 
letters  of  administration  upon  the  estate  of  the  said  John  Doe 
was  given  to  Lilly  Doe,  the  widow  of  the  said  John  Doe  and 
the  petitioner  herein,  and  it  being  alleged  that  the  aforesaid 
order  granting  letters  of  administration  was  obtained  by  fraud 
and  imposition  upon  this  court  by  the  said  William  Jones. 

It  is  thereupon,  on  this    day  of    ,    I9---, 

ordered  that  William  Jones  show  cause  before  this  court  on 

the    day  of    ,   19.  . . ,  why  the  decree  of  this 

court  made  on  the   day  of   ,   19. . .,  directing 

that  letters  of  administration  upon  the  estate  of  the  said  John 
Doe,  deceased,  be  issued  to  the  said  William  Jones,  should  not 
be  opened,  set  aside,  and  for  nothing  holden. 

And  it  is  further  ordered  that  a  true  but  uncertified  copy  of 
this  rule,  together  with  the  petition  and  affidavit  whereon  it  is 

based,  be  served  upon  the  said  William  Jones  within   

days  from  the  date  hereof,  personally.  F.  G.  S.,  Jr., 

Surrogate. 

For  proof  of  service  see  Form  38. 


Form  354.     Order  Setting  Aside  Decree  of  Surrogate. 

[See  Chapter  IV.  page  68,  supra.] 

Essex  County  Surrogate's  Court. 


In  the  matter  of  the  estate  of 


On   Petition   to    Set   Aside 
Decree  of  Surrogate  Grant- 


John  Doe,  deceased.  f  i^g  Letters  of  Administra- 

J   tion. 

Order  Setting  Aside  Letters. 

It  appearing  from  the  petition  of  Lilly  Doe,  filed  herein, 
that  she  is  the  lawful  widow  of  John  Doe,  late  of  the  County  of 

Essex,  deceased,  who  died  on  the    day  of    , 

19.  .  .,  intestate,  and  that  on  the day  of ,  19.  .  ., 


Settixg  Aside  Decrees.  1341 

by  virtue  of  an  order  of  this  court,  letters  of  administration 
upon  the  estate  of  the  said  John  Doe,  deceased,  were  dulv 
issued  to  WilHam  Jones,  and  it  appearing  that  the  name  of 
the  said  Lilly  Doe,  wido\y  as  aforesaid,  \vas  not  included  ainonj^ 
the  names  of  the  next  of  kin  set  up  in  the  application  for  letters 
of  administration  made  by  the  said  William  Jones,  as  aforesaid, 
and  that  no  notice  of  the  aforesaid  application  for  letters  of 
administration  was  given  to  the  said  Lilly  Doe,  and  that  she 
never  renounced  her  right  of  administration  upon  his  estate, 
nor  had  she  knowledge  of  such  application  until  after  the 
date  of  the  order  granting  letters  as  aforesaid. 

And  it  further  appearing  that  the  rule  to  show  cause  made 
herein  has  been  duly  served  upon  the  said  William  Jones,  and 
the  court  having  examined  into  the  matter  and  heard  the 
testimony  of  witnesses  produced  on  the  part  of  petitioner  and 
of  respondent  herein,  and  being  satisfied  that  the  said  Lilly 
Doe  is  the  widow  of  the  said  John  Doe,  deceased,  and  that  no 
notice  of  the  application  of  William  Jones  for  letters  of  ad- 
ministration upon  the  estate  of  the  said  John  Doe,  deceased, 
w^as  given  to  the  said  Lilly  Doe,  widow  as  aforesaid,  and  that 
she  never  renounced  her  said  right  of  administration,  and 
that  at  the  time  of  making  the  said  application,  the  said  William 
Jones  knew  that  the  said  Lilly  Doe  was  the  widow  of  the  said 
John  Doe,  deceased,  and  also  knew  her  place  of  residence,  and 
that  the  said  order  granting  letters  of  administration  upon 
the  estate  of  John  Doe,  deceased,  was  obtained  by  the  said 
William  Jones  by  fraud  and  imposition  upon  this  court. 

It  is  on  this    day  of    ,  one  thousand  nine 

hundred  and   ,  ordered,  adjudged  and  decreed  that  the 

order  pf  this  court  made  on  the day  of 19.  .  . , 

granting  letters  of  administration  upon  the  estate  of  the  said 
John  Doe,  deceased,  to  the  said  William  Jones  be  oj^ened, 
vacated,  set  aside  and  for  nothing  holden,  and  that  the  letters 
of  administration  issued  in  ])ursuance  of  the  aforesaid  order 
be,  and  they  arc  hereby  revoked. 

F.  G.  S.,  Jr., 
Surron-atc. 


1342  Probate  Law  and  Practice. 

APPEAL. 

I.      FROM    DECREE   OF   SURROGATE. 

Form  355.    Petition  of  Appeal  from  Order  of  Surrogate  Granting 
Letters  of  Administration. 

[See  Orphans'  Court  Act,  section  201,  page  74,  supra,  and  Orphans' 
Court  Rule  49,  page  75,  supra.  1 

Essex  County  Surrogate's  Court. 

T-     ,,  ,,  f     ,  r")    On  Appeal  from  Grant  of 

In  the  matter  01  the  estate  of  I    ...  .         .        ,       ^ 
-P  ,      „  J  >Aamniistration    by    burro- 


John  Doe,  deceased.  I 


gate. 

Petition. 


To  the  Surrogate  of  the  County  of  Essex: 

The  petition  of  WilHam  Doe,  of  the    of .  ., 

in  the  County  of  ,  and  State  of  ,  respect- 
fully shows  that : 

1.  Your  petitioner  is  one  of  the  next  of  kin  and  heirs  at  law 

of  John  Doe,  late  of ,  deceased,  who  died  intestate  on 

or   about   the    day   of    ,    19.  .  . ,   leaving  him 

surviving  three  children,  to  wit :  William  Doe,  your  petitioner, 
James  Doe  and  Richard  Doe,  his  only  next  of  kin. 

2.  On  the   day  of   ,  19.  .  . ,  the  said  James 

Doe  made  application  to  the  surrogate  of  the  County  of 
Essex  for  letters  of  administration  upon  the  estate  of  the  said 
John  Doe,  deceased,  and  the  said  surrogate,  by  his  order  made 
on  the  day  last  above  mentioned,  issued  letters  of  adminis- 
tration upon  the  said  estate  to  the  said  James  Doe. 

3.  Your  petitioner,  as  one  of  the  children  of  the  saic^  John 
Doe,  deceased,  is  entitled  to  administration  upon  his  said  estate  ; 
he  has  not  renounced  his  said  right  to  administer  and  no  notice 
of  the  aforesaid  application  of  the  said  James  Doe  for  such 
administration  was  served  upon  him,  and  he  complains  and 
alleges  that  the  whole  and  every  part  of  the  aforesaid  order 
of  the  said  surrogate  granting  letters  of  administration  upon 
the  estate  of  the  said  John  Doe,  deceased,  to  the  said  James 
Doe,  as  aforesaid,  is  erroneous,  improper  and  illegal,  and  that 
he  is  aggrieved  thereby. 


Appeal.  1343 

4.  The  persons  who  claim  to  be  interested  in  the  said  pro- 
ceedings before  the  snrrogate  arc  your  petitioner's  two 
brothers,  James  and  Richard  Doe. 

Your  petitioner  therefore  prays  that  the  above-named 
persons  interested  in  the  said  proceedings  before  the  said 
surrogate  as  aforesaid  and  each  of  them  may  be  cited  to  appear 
in  the  Orphans'  Court  of  this  County,  pursuant  to  the  rules  and 
practice  thereof,  and  that  the  aforesaid  order  of  the  said  surro- 
gate and  the  proceedings  thereunder  may  be  reversed  and  set 
aside  by  the  said  Orphans'  Court,  and  that  the  letters  of  ad- 
ministration issued  to  the  said  James  Doe  as  aforesaid  may 
be  revoked,  and  that  letters  of  administration  upon  the  estate 
of  the  said  John  Doe,  deceased,  may  be  granted  to  vour  pe- 
titioner. 

Dated  Newark,  X.  J.,  William  Doe. 
,.  19- •• 

State  of  New   Jersey,  ) 
County  of  Essex.       j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  fore- 
going petition  named,  and  that  the  matters  and  things  therein 
contained  are  true  to  the  best  of  his  knowledg-e  and  belief. 


Subscribed  and  sworn  to  this~^ 

day  of ,  I 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 
Notary  Public  of  New  Jersey. 


William  Doe. 


Form  356.     Petition  of  Appeal  from  Order  of  Surrogate  Admitting 
Will  to  Probate. 

[See  Orphans'  Court  Act,  section  202.  page  74.  siii>ra.  and  (  )ri)lians' 
Court  Rule  49,  page  75,  supra.] 

Essex  County  Surrogate's  Court. 
86 


1344  Probate  Law  and  Practice. 


In  the  matter  of   the   estate  of  |  On  Appeal  from  Probate  of 
John  Doe,  deceased.  j  Will   by   Surrogate. 

Petition  of  Appeal. 


To  the  Surrogate  of  the  County  of  Essex. 

The  petition  of  appeal  of  William  Doe  of  the   of 

,  in  the  County  of ,  and  State  of   , 

respectfully  shows  that: 

1.  Your  petitioner  is  one  of  the  children  of  John  Doe,  late 

of  the  County  of  Essex,  deceased,  who  died  on  the day 

of ,  19.  .  .,  leaving  him  surviving  as  his  next  of  kin 

three  children,  to  wit :    William  Doe,  your  petitioner,  James 
Doe,  and  Richard  Doe. 

2.  On  the  day  of  ,  19.  .  .,  one  X.  Y.  pro- 
duced before  the  Surrogate  of  the  County  of  Essex  for  probate 
a  paper  writing  purporting  to  be  the  last  will  and  testament 
of  the  said  John  Doe,  deceased,  wherein  the  said  X.  Y.  was 
named  as  the  sole  executor  thereof,  and  the  said  Surrogate 
thereupon,  on  the  day  last  named,  made  his  order  admitting 
the  said  paper  writing  to  probate  as  and  for  the  last  will  and 
testament  of  the  said  John  Doe,  deceased,  and  granting  letters 
testamentary  thereon  to  the  said  X.  Y.,  which  letters  were 
duly  issued  on  the  day  last  aforesaid. 

3.  Your  petitioner  complains  and  alleges  that  the  whole 
and  every  part  of  the  said  order  of  the  said  Surrogate  admit- 
ting the  said  will  to  probate  and  issuing  letters  testamentary 
thereon  to  the  said  X.  Y.,  as  aforesaid,  is  erroneous,  im- 
proper and  contrary  to  law,  and  that  your  petitioner  is 
aggrieved  therebv. 


'te?5 


4.  Your  petitioner  alleges,  for  grounds  of  appeal,  as  follows  : 
a — At  the  time  of  the  making  and  of  the  supposed  execu- 
tion of  said  paper  Avriting,  and  for  a  long  time  prior 
thereto,  the  said  John  Doe  was  of  unsound  mind 
and  as  such  incapable  of  disposing  of  his  estate  by 
will, 
b — The  said  X.  Y.  did  unduly,  illegally  and  fraudulently 
influence  the  said  John  Doe  in  respect  to  the  making 
and  supposed  execution  of  the  said  paper  writing. 


Appeai,.  1345 

c — The  supposed  execution  of  the  said  paper  writing  is 
illegal  and  insufficient  under  the  laws  of  this  State 
to  constitute  the  same  the  last  will  and  testament  of 
the  said  John  Doe,  deceased,  for  that  the  said  John 
Doe  did  not  at  the  time  of  the  supposed  execution 
thereof    sign,    publish   and    declare   the    said   paper 
writing  as  and  for  his  last  will  and  testament  in  the 
presence  of  two  witnesses,  present  at  the  same  time, 
pursuant  to  the  statute  in  such  case  made  and  pro- 
vided. 
5.  The   names   of    all   persons   concerned    in    this    proceed- 
ing are  as  follows:  [Here  insert  the  names  of  the  executor  of 
the  zmll,  all  of  the  legatees  named  therein,  and  all  of  the  next 
of  kin  and  heirs  at  huv  of  testator). 

Your  petitioner  therefore  prays  that  the  above-named 
persons  concerned  in  this  proceeding  and  each  of  them  may  be 
cited  to  appear  in  the  Orphans'  Court  pursuant  to  the  rules  and 
practice  thereof,  and  that  the  aforesaid  order  of  the  said  Surro- 
gate and  the  proceedings  thereon  may  be  reversed  and  set  aside 
by  the  said  Orphans'  Court,  and  that  the  letters  testamentary 
issued  to  the  said  X.  Y.  may  be  revoked. 

Dated  Newark,  N.  J.,  William    Doe. 
- ,  I9--- 

State  of  New  Jersey,  | 
CouxTv  OF  Essex.       j 

William  Doe,  being  duly  sworn  according  to  law  upon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


.Subscribed  and  sworn  to  tliis^ 

day  of ".  .  ., 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 
Notary  Public  of  New  Jersey 


>■  \\'iLLi\M  Doe. 


1346  Probate  Law  and  Practice. 

Form  357.    Citation  on  Appeal. 

[See  Orphans'  Court  Rule  50,  page  76,  supra.] 

Essex  County  Orphans'  Court. 
State  oe  New  Jersey, 


1 


ss. 

County  of  Essex. 

The  State  of  New  Jersey, 
To  X.  Y.,  executor  of  the  last  will  and  testament 
(l.  s.)     of   John   Doe,   deceased;    Mary   Doe,   James   Doe, 
Henry  Doe,  and  Richard  Doe, 

Greeting: 

We  cite  and  command  you,  that  you  personally  be  and 
appear  before  the  Orphans'  Court,  to  be  holden  at  the  Court 
House,  in  the  City  of  Newark,  in  and  for  the  County  of  Essex, 

on  the   day  of    ,   19.  .  .,  at  ten  o'clock  in  the 

forenoon,  in  the  matter  of  the  appeal  of  Wilham  Doe  from 
an  order  of  the  Surrogate  of  the  County  of  Essex  made  on  the 

day  of .  .,  19.  .  .,  admitting  to  probate  a  paper 

writing  purporting  to  be  the  last  will  and  testament  of  John 
Doe,  deceased,  and  to  abide  the  judgment  of  the  said  court  in 
the  premises. 

Witness,  W.  P.  M.,  Judge  of  our  said  Orphans'  Court  at 
Newark  aforesaid,  this  day  of  ,  one  thou- 
sand nine  hundred  and 

F.  G.  S.,  Jr., 
Surrogate  and  Clerk. 

This  citation  must  be  served  by  the  Sheriff. 

Form    358.      Decree    Reversing    Order    of    Surrogate    Admitting 
Will  to  Probate. 

[See  Orphans'  Court  Act.  section  202,  page  74,  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  ")  On  Appeal  from  Probate  of 
John  Doe,  deceased.  J  Will  by   Surrogate. 

Decree  Denying  Probate 
of  Will.  ' 

William  Doe,  one  of  the  children  of  John  Doe,  late  of  the 


Appkal.  1347 

County  of deceased,  having  presented  his  petition  of 

appeal  from  an  order  of  the  Surrogate  of  the  County  of  Essex. 

made  on  the day  of 19.  . .,  admitting  to  pro- 

l)ate  a  certain  paper  writing  purporting  to  be  the  last  will  and 
testament  of  the  said  John  Doe,  deceased,  and  granting  letters 
testamentary  thereon  to  X.  Y.,  the  executor  therein  named  ; 
and  it  ai)pearing  that  citations  were  thereupon  duly  issued  by 
the  Surrogate  of  the  County  of  Essex  to  all  persons  concerned 

to  appear  before  this  court  on  the    dav  of    

19....  on  the  hearing  of  said  appeal,  and  that  said  citations 
have  been  returned  duly  served  u])on  the  persons  to  whom 
they  were  respectively  directed  ;  and  the  court  having  taken 
testimony  and  heard  the  allegations  of  the  parties  herein,  and 
being  satisfied  that  the  said  John  Doe.  deceased,  at  the  time  of 
executing  the  aforesaid  ])aper  writing  was  of  unsound  mind 
and  incapable  of  executing  a  valid  will  (or  othcrzcisc  as  the 
case  may  be). 

It  is  thereupon  on  this   day  of    19.  .  • , 

ordered,  adjudged  and  decreed,  that  the  aforesaid  paper  writ- 
ing is  not  the  last  will  and  testament  of  the  said  John  Doe, 
deceased,  and  that  the  order  made  by  the  said  surrogate  on  the 

day  of 19...,  admitting  the  same  to  ])robate 

as  and  for  the  last  will  and  testament  of  the  said  John  I  )oe, 
deceased,  be  and  the  same  is  hereby  reversed  and  set  aside, 
and  that  the  letters  testamentary  issued  thereon  be  and  the  same 
are  hereby  revoked. 

And  it  is   further  ordered  that  a  counsel    fee  t)f    

dollars  be  allowed  to   ,  coimsel  for  the  said  William 

Doe,  the  appellant  herein,  and  that  a  counsel  fee  of 

dollars   be   allowed   to    .' ,   counsel    for    the 

respondents  herein,  and  that  said  counsel  fees,  together -with 
the  costs  of  this  apj^eal  be  paid  from  the  estate  of  the  said 
John  Doe,  deceased.  \V.   i\  M.. 

Judge. 


1348  Probate  Law  and  Practice. 

Form    359.      Decree     Reversing    Order    of     Surrogate    Granting 
Letters  of  Administration. 

[See  Orphans'  Court  Act.  section  201,  page  74,  supra.] 

Essex  County  Orphans'  Court. 

T      .,  ,,  r   ^,  ..  4^       r~l   C)n  i\ppeal  from  Grant  of 

In   the   matter  of   the   estate   of       ...   . 

T  ,      r-.        J  J  yAdmmistration    by    Siirro- 

lohn  Doe,  deceased.  f  -^ 

J  gate. 

Order  Revoking  Letters  of 
Administration. 

Wilhani  Doe,  one  of  the  children  of  John  Doe,  late  of  the 

County  of ,  deceased,  having  presented  his  petition  of 

appeal  from  the  order  of  the  Surrogate  of  the  County  of  Essex, 

made  on  the day  of ,  19.  .  . ,  granting  letters 

of  administration  upon  the  estate  of  the  said  John  Doe. 
deceased,  to  James  Doe,  and  it  further  appearing  that  citations 
were  thereupon  duly  issued  by  the  surrogate  of  the  said  County 
of  Essex  to  all  persons  concerned  to  appear  before  this  court 

on  the   day  of   ,   19...,  which  citations  have 

been  returned  duly  served  upon  the  persons  to  whom  they 
were  respectively  directed,  and  the  court  having  taken  testi- 
mony and  heard  the  allegations  of  the  parties  herein,  and  it 
appearing  that  no  notice  of  the  application  of  the  said  James 
Doe  to  the  said  Surrogate  for  letters  of  administration  upon  the 
estate  of  the  said  John  Doe,  deceased,  was  given  to  William 
Doe,  one  of  the  next  of  kin  of  the  said  John  Doe,  deceased, 
and  that  the  said  Vi'illiam  Doe  has  not  renounced  his  said 
right  to  administer  thereon. 

It  is  thereupon  on  this    day  of    ,   19.  .  . . 

ordered,  adjudged  and  decreed  that  the  said  order  of  the  surro- 
gate made  on  the day  of ,  19.  . . ,  granting  let- 
ters of  administration  upon  the  estate  of  the  said  John  Doe. 
deceased,  be  and  the  same  is  hereby  reversed  and  set  aside,  and 
that  the  letters  of  administration  issued  thereon  be  and  the 
same  hereby  are  revoked ;  and  it  is  further  ordered  that 
William  Doe,  the  appellant  herein,  be  and  he  hereby  is  ap- 
pointed administrator  of  the  goods,  chattels,  rights  and  credits 


Appeal.  i349 

of  the  said  John  Doe,  deceased,  and  that  letters  be  issued  to 
him  accordingly,  upon  his  entering  into  bond  to  the  ordinary, 

with  condition  as  prescribed  by  law,  in  the  sum  of 

dollars. 

And  it  is  further  ordered  that  each  party  hereto  pay  his  own 
costs.  W.  P.  M., 

Judge. 


Form  360.     Decree  Affirming  Order  of  Surrogate  Admitting  Will 
to   Probate. 

[See  Orphans"  Court  Act.  section  202,  page  74.  supra.] 

Essex  County  Orphans'  Court. 

In   the  matter  of   the   estate  of  |  On   Appeal    from   Probate 
John  Doe,  deceased.  j       of  Will  by  Surrogate. 

Decree  Affirming  Order  of 
Surrogate. 

William  Doe,  one  of  the  children  of  John  Doe,  late  of  the 
County  of  Essex,  deceased,  having  presented  his  petition  of 
appeal  from  an  order  of  the  Surrogate  of  the  County  of  Essex, 
made  on  the day  of 19 admitting  to  pro- 
bate a  certain  paper  writing  purporting  to  be  the  last  will  and 
testament  of  the  said  John  Doe,  deceased,  and  granting  letters 
testamentary  thereon  to  X.  Y.,  the  executor  therein  named,  and 
it  appearing  that  citations  were  thereupon  duly  issued  by  the 
Surrogate  of  the  County  of  Essex  to  all  persons  concerned 

to  appear  before  this  court  on  the day  of 19.  .  .. 

at  ten  o'clock  in  the  forenoon  on  the  hearing  of  said  appeal, 
and  that  said  citations  have  been  returned  duly  served  upon  the 
persons  to  whom  they  were  respectively  directed,  and  the 
court  having  taken  testimony  and  heard  the  allegations  of  the 
parties  herein,  and  being  satisfied  that  the  said  paper  writing 
was  duly  executed  by  the  said  John  Doe,  as  his  last  will  and 
testament  in  manner  and  form  prescribed  l)y  the  statute  in 
such  case  made  and  provided,  and  that  the  said  John  Doe  at 
the  time  of  making  said  will  was  of  sound  and  disjjosing 
mind,  memory  and  understanding,  and  that  said  will  was  not 
the  product  of  undue  intluence. 


1350  Probate  Law  and  Practice. 

It   is   thereupon   on   this    day   of    ,    19..., 

ordered,  adjudged  and  decreed  that  the  aforesaid  decree  of  the 
Surrogate  of  the  County  of  Essex  admitting  to  probate  the 
said  paper  writing  as  and  for  the  last  will  and  testament  of 
John  Doe,  deceased,  and  directing  that  letters  testamentary 
thereon  issue  to  X.  Y.,  the  executor  therein  named,  be,  and  the 
same  is  hereby  in  all  things  ratified  and  confirmed  and  that  the 
said  paper  writing  is  the  last  will  and  testament  of  the  said 
John  Doe,  deceased. 

And  it  is  further  ordered  that  a  counsel  fee  of    

dollars  be  allowed  to  A.  B.,  proctor  for  proponent,  and  the 
court  being  satisfied  that  the  appellant  herein  had  reasonable 
cause  for  contesting  the  validity  of  the  said  will,  it  is  further 

ordered  that  a  counsel  fee  of   dollars  be  allowed  to 

C.  D.,  proctor  for  the  caveator,  the  aforesaid  counsel  fees  to 
be  paid  by  the  said  X.  Y.,  the  executor  named  in  said  will,  out 
of  the  estate  of  the  said  testator. 

PI.  V.  O., 

Judge. 


II.     DISMISSAL  OF  APPEAL. 

Form  361.     Petition  for  Dismissal  of  Appeal. 

[See  Orphans'  Court  Rule  51,  page  T] .  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of   the   estate   of  |  On     Petition     of     Appeal 
John  Doe.  deceased.  j  from  Probate  of  Will. 

Petition  for  Dismissal  of 
Appeal. 

To  the  Orphans'  Court  of  the  County  of  Essex. 

The  petition  of  William  Doe,  of  the of m 

the  County  of   ,  and  State  of    ,  respectfully 

shows  that : 

I.  Your  petitioner  is  the  executor  of  the  last  will  and  testa- 
ment of  John  Doe,  late  of  the  County  of  Essex,  deceased,  which 
was  by  an  order  of  the  Surrogate  of  the  County  of  Essex,  made 


Appeal.  1351 

on  the day  of ,  19.  .  .,  duly  admitted  to  pro- 
bate. 

2.  On  the day  of   i«j.  .  .,  James  Doe.  one 

of  the  next  of  kin  of  the  said  John  Doe,  deceased,  chilv  filed  his 
petition  of  appeal  from  the  aforesaid  order  of  the  surrogate  of 
the  County  of  Essex  admitting  said  will  to  probate,  but  the  said 
James  Doe,  appellant  as  aforesaid,  has  failed  to  serve  a  copy  of 
the  said  petition  of  appeal,  nor  has  he  caused  citations  to  be 
issued  and  served  upon  the  persons  concerned  in  said  appeal,  as 
required  by  the  rules  of  this  court,  although  more  than  ten  days 
have  elapsed  since  the  filing  of  said  })etition  of  appeal. 

3.  Due  notice  of  this  application  has  been  given  to  James 
Doe,  the  appellant  as  aforesaid. 

Your  petitioner  therefore  prays  that  the  a])peal  of  the  said 
James  Doe  from  the  decree  of  the  surrogate  admitting  to  pro- 
bate the  will  of  the  said  John  Doe,  deceased,  be  dismissed  for 
lack  of  prosecution. 

Dated,  Newark,  N.  J.,  Wii.i.iam  Doe. 
, I9--- 


State  of  New   Jersey 
County  of  Essex. 


-} 


William  Doe,  being  duly  sworn  according  to  law  ujjon  his 
oath,  deposes  and  says  that  he  is  the  petitioner  in  the  foregoing 
petition  named,  and  that  the  matters  and  things  therein  con- 
tained are  true  to  the  best  of  his  knowledge  and  belief. 


William  Di^e. 


Subscriljed  and  sworn  to  this 
day  of , 

19.  .  .,  at  Newark,  N.  J.,  before 
me, 

J.  C.  F., 

Notary  Public  of  N.  J. 

Five  days'  notice  of  this  a])plication  is  necessary.  See  (Or- 
phans' Court  Kule  51.  Vov  form  of  notice  of  aj)])lication  see 
Form  214;    for  proof  of  service  see  Form  38. 


1352  Probate  Law  and  Practick. 

Form  362.      Order   Dismissing   Appeal. 

[See  Orphans'  Court  Rule  51.  page  ".  supra.] 

Essex  County  Orphans'  Court. 


In   the  matter  of  the   estate   of  |  On  Petition  of  Appeal  from 
John  Doe,  deceased.  (  Probate  of  Will. 


Order  Dismissing  Appeal. 


James  Doe,  one  of  the  next  of  kin  of  John  Doe,  deceased, 
having  filed  his  petition  of  appeal  from  an  order  of  the  Surro- 
gate of  the  County  of  Essex,  made  on  the  ....  day  of , 

19.  .  .,  admitting  to  probate  a  certain  paper  writing  as  the  last 
will  and  testament  of  the  said  John  Doe,  deceased,  and  it 
appearing  that  the  said  appellant  has  failed  and  neglected  to 
serve  his  said  petition  of  appeal  and  to  issue  citations  to  the 
persons  interested,  in  manner  and  form  as  prescribed  by  the 
rules  of  this  court,  and  no  reason  being  alleged,  or  appearing 
to  the  contrary,  and  it  appearing  that  due  notice  of  this  appli- 
cation has  been  given  to  the  said  James  Doe,  appellant  as 
aforesaid. 

It  is  thereupon  on  this day  of ,  one  thousand 

nine  hundred  and ,  ordered,  adjudged  and  decreed,  that 

the  said  petition  of  appeal  of  the  said  James  Doe  from  the  order 
of  the  surrogate,  made  on  the day  of ,  one  thou- 
sand nine  hundred  and ,  admitting  to  probate  a  certain 

paper  writing  as  the  last  will  and  testament  of  the  said  John 
Doe,  deceased,  be  and. the  same  is  hereby  dismissed  for  lack  of 
prosecution.  W.  P.  M., 

Judge. 

III.  APPEALS  FROM  ORPHANS'  COURT. 

Form  363.    Notice  of  Appeal. 

[See  Prerogative  Court  Rule  59.  page  81.  supra.] 

Essex  County  Orphans'  Court. 

In  the  matter  of  the  probate  of  1   ^,     ^^    .  .  .    .  , 

,        -,1     r  T  ,      -r^        1  1    >  On  i  etition  of  Appeal, 

the  will  or  John  Doe,  deceased,  j 

Notice  of  Appeal. 
William  Doe,  one  of  the  next  of  kin  of  John  Doe,  deceased, 


Appeal.  1353 

hereby    appeals    to    the    Prerogative    Court    from    the    decree 

entered  herein  on  the day  of ,  19.  . . .  admitting 

to  probate  a  certain  paper  writing  as  the  hist  will  and  testament 
of  John  Doe,  deceased,  and  every  part  thereof  ( //  apf^cal  is 
taken  from  only  a  portioii  of  said  decree,  specify  :eliat  forti(ni). 

Dated  Newark,  N.  1., 

^  '  X.  Y., 
, ,  i9--- 


Proctor  for  Appellant. 

This  notice  is  hied  with  the  Surrogate  and  a  copy  thereof 
must  within  five  days  of  the  hliug  of  the  same  be  served  upon 
the  adverse  party  or  upon  his  proctor.  See  Orphans'  Court 
Rule  59.    For  form  of  proof  of  service  see  Form  38. 


^On  Petition  of  Appeal. 


Form  364.     Petition  of  Appeal  From  Probate  of  Will. 
[See  Prerogative  Court  Rules  60  and  6r,  pages  S4  and  .^5.  supra.] 
New  Jkksev  Prerogative  Court. 

In  the  matter  of  the  appeal  from 
the  decree  of  the  Orphans' 
Court  of  the  County  of  Essex, 
admitting  to  probate  a  certain 
paper  writing  as  the  last  will 
and  testament  of  John  Doe, 
deceased.  ^ 

Petition  of  Apj'eaJ. 

To  the  Ordinary  of  the  State  of  New  Jersey: 

The  petition  of ,  of  the of in  the 

County  of and  State  of resi)ectfully  shows 

that : 

1.  Petitioner  is  one  of  the  next  of  kin  of  John  Doc,  late  of 

the  County  of  Essex,  deceased.    On  the  ....  day  of 

19...,  the  Orphans'  Court  of  the  County  of  Essex  made  its 
order  admitting  to  probate  a  certain  ])aper  writing  ])urporting 
to  be  the  last  will  and  testament  of  the  said  John  Doe,  deceased. 

2.  Your  petitioner  complains  and  alleges  that  the  whole  and 
every  ])art  of  the  aforesaid  decree  is  erroneous.  im])r()per  and 


1354  Probate;  Law  and  Practice. 

illegal,  and  that  your  petitioner  is  aggrieved  thereby.  (// 
appeal  is  taken  front  only  a  portion  of  said  decree,  specify 
what  portion.) 

Your  petitioner  therefore  prays  that  the  aforesaid  order  of 
the  said  Orphans'  Court  and  every  part  thereof,  be  reversed 
by  this  court. 

Dated  Newark,  X.  J., 

.X..  Y., 
, ,  19-  •• 

Proctor  for  and  of  Counsel 
with  Appellant. 

The  petition  of  appeal  must  be  tiled  with  the  Register  of  the 
Prerogative  Court  within  thirty  days  after  the  tiling  of  the 
notice  of  appeal  and  within  live  days  after  filing  the  same 
a  copy  must  be  served  upon  the  adverse  party  or  his  proctor. 
See  Prerogative  Court  Rule  60.  For  proof  of  service  see  Form 


Form  365.     Answer  to  Petition  of  Appeal  from  Probate  of  Will. 

[See   Prerogative  Court  Rule  66,  page  'tiy,  supra. J 

New  Jersev  Prerogative  Court. 

In  the  matter  of  the  api)eal  of^ 
James  Doe  from  an  order  of 
the  Orphans'  Court  of  the 
County  of  Essex,  admitting  to 
probate  a  certain  paper  writing 
as  the  last  will  and  testament 
of  John  Doe,  deceased. 


;^On  Petition  of  Appeal. 


Anszver  to  Petition  of  Appeal 

The  answer  of  \Mlliam  Doe,  respondent,  to  the  petition  of 
appeal  of  James  Doe,  appellant. 

1.  This  respondent,  answering,  says  that  he  admits  the  allega- 
tions contained  in  paragraph  one  of  the  petition  of  appeal 
filed  herein. 

2.  This  respondent  is  advised,  believes,  and  submits  that 
said  decree  is  just  and  in  accordance  with  law,  and  denies  that 
said   decree   or   any   part   thereof   is   erroneous,   improper   or 


Appeal. 


1355 


illegal,  but  on  the  contrary  alleges  that  said  decree  in  every 
part  thereof  is  legal,  proper  and  correct. 

He  therefore  prays  that  the  said  decree  may  be  in  all  things 
affirmed  with  costs  to  be  adjudged  to  this  respondent. 

X.  Y., 
Proctor  for  and  of  Counsel 
with  Respondent. 

The  answer  to  a  petition  of  appeal  must  be  filed  within 
fifteen  days  after  service  of  a  copy  of  the  petition;  see  Pre- 
rogative Court  Rule  66.     For  proof  of  service  see  Form  38. 


Form  366.     Petition  of  Appeal  From  Decree  on  Account. 
[See  Prerogative  Court  Rule  62.  page  84,  supra.  | 

New  Terskv  Prkrog.vtivk  Court. 


In  the  matter  of  the  appeal  of 
James  Doe  from  an  order  of 
the  Orphans'  Court  of  the 
County  of  Essex,  allowing  the 
account  of  William  Doe,  the 
administrator  of  the  estate  of  I 
John  Doe,  deceased.  J 


>()n  I'etition  of  Appeal. 


Petition  of  Appeal. 


To  the  Ordinary  of  the  State  of  New  Jersey: 

The  petition  of  James  Doe,  of  the of   in 

the  County  of  Essex  and  State  of  New  Jersey,  respectfully 
shows  that  : 

1.  On  the day  of kj.  .  .,  William  Doe.  the 

executor  and  trustee  under  the  last  will  and  testament  of  John 
Doe,  deceased,  presented  his  account  as  such  executor  and 
trustee  to  the  Orphans'  Court  of  the  County  of  Essex,  and 
exceptions  having  been  filed  thereto  by  your  petitioner,  the  Or- 
phans' Court,  on  the day  of iw-  •  • .  made  its 

order  overruling  certain  of  the  said  exceptions,  and  ordering 
that  said  account  be  allowed. 

2.  Your  ])etitioner  hereby  api)eals   from  the   following  por- 
tions of  the  aforesaid  order: 


1356  Probate  Law  and  Practice. 

a.  From  that  part  of  the  said  order  of  the  said  Orphans' 
Court  overriding  appellant's  exception  to  said  account  alleg- 
ing that  said  accountant  had  not  charged  himself   with  the 

amount  of dollars  on  deposit  in  the Savings 

Institution  in  the  City  of    ,  as  part  of  the  estate  of 

the  said  John  Doe,  deceased. 

b.  From  that  part  of  the  said  order  of  the  Orphans'  Court 
whereby  the  sum  of  two  hundred  dollars  prayed  allowance  as 
paid  out  of  income  for  betterments  was  ordered  stricken 
therefrom,  and  charged  against  the  corpus  of  the  estate,  and 
interest  on  the  said  sum  of  two  hundred  dollars  from  the* 
date  of  its  payment  to  the  date  of  said  accounting  was 
ordered  charged  against  the  income  of  the  said  estate,  and 
also  credited  to  the  corpus. 

3.  Your  petitioner  complains  and  alleges  that  the  aforesaid 
order  of  the  Orphans'  Court  is  erroneous,  improper  and 
illegal  in  the  foregoing  particulars  ;  and  that  your  petitioner 
is  aggrieved  thereby. 

Dated  Newark,  N.   T.,  Y    Y 
, ,  I9--- 

Proctor  for  and  of  Counsel 
with  Appellant. 

This  petition  must  be  hied  with  the  Register  of  the  Pre- 
rogative Court  within  thirty  days  after  filing  the  Notice  of 
Appeal.  Within  five  days  after  filing  the  petition  the  same 
must  be  served  upon  the  adverse  party  or  his  proctor  ;  for  proof 
of  service  see  Form  38. 


Form    367.      Answer    to    Petition    of    Appeal    from    Decree    on 
Account. 

[See  Prerogative  Court  Rule  62,  page  84.  supra.] 

New  Terskv  Prerogative  Court. 


Appeal.  1357 


In  the  matter  of  the  appeal  ot"^ 
James  Doe  from  the  decree  of 
the  Orphans'  Court  of  the 
County  of  Essex,  allowing  the 
account  of  William  Doe,  as 
administrator  of  the  estate  of 
John  Doe,  deceased. 


>(M\  Petition  of  Appeal. 


Aiis-iK'cr. 


The  answer  of  William  Doe,  respondent,  to  the  petition  of 
appeal  of  James  Doe,  appellant: 

1.  This  respondent  answering,  admits  the  allegations  con- 
tained in  the  first  paragraph  of  appellant's  ])etition  of  appeal 
filed  herein. 

2.  This  respondent  is  advised,  believes,  and  submits  that 
the  portions  of  said  decree  complained  of  by  appellant  are  just- 
and  lawful,  and  this  respondent  denies  that  the  aforesaid  por- 
tions of  the  said  decree  or  any  parts  thereof  are  erroneous,  im- 
proper or  illegal,  and  alleges  that  said  portions  of  said  decree 
are  legal,  proper  and  correct. 

He  therefore  prays  that  the  said  petition  of  api)eal  may  be 
dismissed  with  costs. 

3.  This  respondent  further  answering,  says,  that  that  portion 
of  the  aforesaid  decree  of  the  Orphans'  Court  of  the  County 
of  Essex,  wherein  the  said  court  adjudges  and  decrees  that 

the  amount  of  a  deposit  in  the   Savings  Institution 

to  the  credit  of  the  said  John  Doe  and  Jane  Doe,  either  to 
draw,  survivor  to  take,  at  the  time  of  his  decease  was  a  part  of 
the  estate  of  the  said  John  Doe,  deceased,  and  that  account- 
ant should  be  surcharged  with  the  amount  thereof,  is  errone- 
ous, illegal  and  improper,  and  tliat  this  respondent  is  aggrieved 
thereby. 

He  therefore  prays  that  the  aforesaid  ])i)rlion  ot  the  >aid 
decree  of  the  Orphans'  Court  of  the  Cdunty  of  h'ssex  may  l)e 
reversed  by  this  court.  X.  ^  ., 

Proctor   for  and  ui  Coun.sel 

with  Respondent. 

The   answer   to  a   j)etition   of   appeal    nuisl    be    tiled   within 

fifteen  days  after  service  of  a  copy  of  the  Petition  ol'  Appeal. 

See   Prerogative   Court   Rule  66.      I'Or   jtroot    dI    ^ei"\ice   see 

Form  38. 


1358  Probate  Law  and  Practice. 

FORMS   OF   WILLS. 

Form  368.     Simple  Form  of  Will. 

I,  John  Doe,  of  the of ,  in  the  County  of 

and  State  of ,  being  of  sound  and  disposing 

mind,  memory  and  understanding,  do  make  and  execute  this  my 
last  will  and  testament  in  manner  and  form  as  follows,  that  is 
to  say : 

First.  I  direct  that  all  of  my  just  debts  and  funeral  ex- 
])enses  be  paid  as  soon  after  my  decease  as  conveniently  may 
be. 

Second.  I  give  to  my  son,  John  Doe,  the  sum  of  five  thou- 
sand dollars  ($5,000.)  and  direct  that  the  same  be  paid  to  him 
without  the  deduction  of  any  succession  or  other  tax  of  what- 
ever nature,  character  or  description,  it  being  my  will  that  any 
such  tax  levied  against  said  legacy  be  paid  out  of  the  residue 
of  my  estate. 

'  Third:  I  give,  devise  and  bequeath  all  of  the  rest,  residue 
and  remainder  of  my  estate,  whether  real,  personal  or  mixed, 
and  wheresoever  situate,  whereof  I  may  die  seized  or  possessed, 
to  my  wife,  Jane  Doe,  to  have  and  to  hold  the  same  to  her  own 
use  forever. 

Fourth.  I  nominate,  constitute  and  appoint  my  said  wife, 
Jane  Doe,  executrix' of  this  my  last  will  and  testament,  giving 
unto  my  said  executrix  full  power  and  authority  to  sell  and 
convey  any  and  all  of  the  real  estate  whereof  I  may  die  seized. 
It  is  my  wish  and  I  do  hereby  order  and  direct  that  my  said 
executrix  be  not  required  to  give  bonds  or  other  security  as 
such  executrix  in  this  or  any  other  jurisdiction  wherein  pro- 
ceedings may  be  required  to  be  taken  in  connection  with  this 
my  will. 

Fifth.  It  is  my  will  and  I  do  order  and  direct  that  this  will 
remain  in  full  force  and  efl^ect,  notwithstanding  children  may 
hereafter  be  born  to  me. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal. 

this    day  of    ,  one  thousand  nine  hundred 

and 

John   Doe.     (Seal.) 


Forms  of  Wills.  1359 

Signed,  sealed,  published  and  declared  by  the  said  John  Doe. 
the  testator  above-named,  as  and  for  his  last  will  and  testa- 
ment, in  the  presence  of  us  who  were  both  present  at  the  same 
time  and  who  at  his  request,  in  his  presence  and  in  the  presence 
of  each  other,  have  hereunto  subscribed  our  names  as  wit- 
nesses, on  this   day  of   one  thousand  nine 

hundred  and   

William  Jones. 

Joiix  Jones. 

Form  369.  Clause  Creating  Trust  for  the  Benefit  of  a  Niece 
During  Life,  Remainder  at  Her  Death  to  Her  Children,  if 
Any,  Otherwise  to  Others. 

I  give,  devise  and  bequeath  all  of  the  residue  of  my  estate, 
whether  real,  personal  or  mixed,  and  wheresoever  situate,  to 
James  Jones,  in  trust  nevertheless,  to  invest  the  same  and  to 
pay  the  income  arising  therefrom  to  my  niece.  Mary  Doc. 
daughter  of  William  Doe,  during  her  natural  life,  and  upon 
the  decease  of  the  said  Mary  Doe  to  pay  the  said  residue  and 
remainder  of  my  estate  to  the  issue  of  her  body  then  living,  if 
any,  and  to  the  issue  of  any  deceased  issue,  per  stirpes  and  not 
per  capita.  In  case  the  said  Mary  Doe  shall  die  without  lawful 
issue  or  the  descendants  of  lawful  issue,  then  it  is  my  will  and 
I  do  direct  that  the  said  residue  and  remainder  of  my  estate 
be  paid  to  William  Jones,  if  then  living,  or  in  case  of  his 
death,  to  his  lawful  heirs,  for  his  or  their  own  proper  use  and 
benefit  forever. 

Form  370.     Clause  Creating  Trust. 

I  give,  devise  and  bequeath  all  of  the  rest,  residue  and  re- 
mainder of  my  estate,  whether  real,  personal  or  mixed,  and 
wheresoever  situate,  to  William  Jones,  in  trust  nevertheless,  to 
invest  the  same  and  to  pay  the  income  arising  therefrom  to  my 
wife,  Jane  Doe,  (luring  the  period  of  her  natural  life  or  until 
her  re-marriage. 

Upon  the  death  or  re-marriage  of  my  said  \\\\\\  Jane-  Doe, 
it  is  my  will  and  1  do  direct  that  William  Jones,  trustee  as 
aforesaid,  pay  all  of  the  .said  rest,  residue  and  remainder  t)f 
my  estate  to  my  cbildre-n  Henry,  Mary  and  James,  to  br  di- 
vided between  them  equallv  share  and  share  alike. 
87 


1360  Probate  Law  and  Practice. 

Form  371.  Clause  Providing  for  Payment  of  Income  to  Widow 
for  Life  with  Privilege  of  Using  Principal  with  Remainder 
Over. 

I  give,  devise  and  bequeath  the  income  of  all  the  rest,  residue 
and  remainder  of  my  estate,  whether  real,  personal  or  mixed, 
and  whersoever  situate,  to  my  wife,  Jane  Doe,  during  the 
period  of  her  natural  life.  If  it  should  so  happen  that  the  in- 
come from  my  said  estate  should  not  be  sufficient  to  support  my 
said  wife,  Jane  Doe,  in  as  comfortable  a  manner  as  that  to 
which  she  was  accustomed  during  my  life-time,  then  it  is  my 
will  and  I  do  authorize  my  said  wife  to  expend  so  much  from 
the  principal  of  my  estate  as  may  be  necessary  for  that  purpose. 

Upon  the  death  of  my  said  wife,  Jane  Doe,  I  do  give,  devise 
and  bequeath  all  of  the  rest,  residue  and  remainder  of  my  said 
estate  to  my  children,  Henry,  Mary  and  William,  to  be  di- 
vided equally  between  them  share  and  share  alike. 

Form  372.    Codicil  to  a  Will. 

I,  John  Doe,  of  the of ,  in  the  County  of 

and  State  of ,  being  of  sound  and  disposing 

mind,  memory  and  understanding,  do  make  and  execute  this 

codicil  to  my  last  will  and  testament,  dated  the day 

of ,  19-  •• 

First.  I  give  to  my  son  William,  in  addition  to  the  legacy 
given  him  in  my  aforesaid  will,  the  sum  of  Five  Thousand 
Dollars  ($5,000.). 

Second.  I  cancel  and  revoke  the  legacy  of  Five  Thousand 
Dollars  ($5,000.)  given  to  James  Doe. 

Third.  In  all  other  respects  I  do  ratify  and  confirm  my 
aforesaid  will. 

In  Witness  \\'hereof,  I  have  hereunto  set  my  hand  and  seal 
this day  of ,  one  thousand  nine  hundred  and 


John  Doe.     (Seal.) 

Signed,  sealed,  published  and  declared  by  the  said  John  Doe, 
the  testator  above-named,  as  and  for  a  codicil  to  his  last  will 

and  testament  bearing  date   the    day  of    , 

19.  .  .,  in  the  presence  of  us  who  were  both  present  at  the  same 


Forms  of  Wills.  1361 

time  and  who  at  his  request,  in  his  presence  and  in  the  pres- 
ence of  each  other,  have  hereunto  subscribed  our  names  as  wit- 
nesses on  this day  of ,  one  thousand  nine  hun- 
dred and 

William  Jones. 

John  Jones. 


TABLE  OF  CASES. 


Aber  v.  Clark,  119. 

Acker's  Case.*86,  189.  206,  271. 

Adams  v.  Adams.  68,  340,  718,  721, 

■J 27,,  724,  731. 
Adoue  V.  Spencer,  459. 
Albert  v.  Perry,  751,  752,  758. 
Aldridge  v.  McClelland,  396,  424. 

520.  609.  671,  672. 
Alexander's  Case,  119,  154. 
Alexander,  In  re,  43,  46,  766,  '/(i'], 

772. 
Alexander's  Will,  In  re,  147. 
Alexander  v.  Bacot,  663. 
Allaire    v.    Allaire.    140,    141,    142, 

144,  202,  203,  211,  212,  213,  216, 

221. 
Allen's  Case,  407. 
Allen  V.  Dundas,  68. 
Allen  V.  Edwards,  734. 
Allen  V.  Sanders.  334. 
Allen  V.  Van  Houten,  355,  426. 
Ailing  V.  Ailing,  766,  767,  768,  769. 
Alpaugh,  In  re,  141. 
Alpaugh's  Estate,  In  re,  265. 


Alpaugh  V.  Wilson,  526. 
Anderson  v.   Anderson,    175,   548, 

549- 
Anderson  v.  Berry,  696. 
Anderson  v.  Eggers,  156. 
Andress  v.  Andress,  78,  691,  697. 
Andress  v.  Weller,  106,  115,  117. 
Andrews'  Case,  109,  123. 
Annin  v.  Vandoren,  252,  275. 
Antonidas  v.  Walling,  760. 
Arbib,  In  re,  148. 
Armstrong     v.     Armstrong,     I03, 

155,  156,  163,  167. 
Arnault  v.  Arnault,   121,   152,   158, 

170. 
Arnold  v.  Robins,  573. 
Arrowsmith    v.    Van    Harlingien, 

450. 
Ashby  V.  Ashby,  424. 
Atkinson  v.  Atkinson,  547. 
Ayres  v.  Ayres,  109,  130,  131,  133, 

134,  135,  141. 
Ayres  v.  Shepherd,  293,  539. 


B 


Babbitt  v.  Babbitt,  607. 
Babbitt  v.  Fidelity  Trust  Co., 

255,  256,  376,  383,  556,  685, 
Bailey's  Estate,  72,3. 
Bailey  v.  Spofford,  413. 
Bailey  v.  Stiles,  245. 
Baker's  Estate,  In  re,  652,  653 

662. 
Baker's  Will,  In  re,  112. 
Baker  v.  Johnston,  678,  685. 
Baldwin  v.  Vreeland,  350. 
Ballantine  v.  Frelinghuysen, 
Ballantine  v.  Young,  387. 


250, 
692. 


656, 


2,7^- 


Bannister  v.  Jackson,  107,  115,  iig. 
Banta  v.  Moore,  255,  349,  618,  628, 

721. 
Banvard's  Estate,  In  re,  163. 
Barber's  Will,  In  re,  109,  151,  155. 
Barber  v.  Baldwin,  117. 
Barcalow,  In  re,  400,  695. 
Barclay  v.  Cooper.  352,  354,  393. 
Barker  v.  Barker,  119,  171,  172. 
Barker  v.  Streuli,  137,  138,  170. 
Barkman    v.    Richards,    159,    162, 

163. 
I^arnes  v.  Taylor,  419. 


1363 


1364 


Probate  Law  and  Practice. 


Barnesly  v.  Powel,  68. 

Barry,  .  In  re  Hannah,  766,  768, 
772. 

Bassett  v.  Shoemaker,  453. 

Batton  V.  Allen.  702. 

Bayeaux  v.  Bayeaux,  145,   147. 

Bayles  v.  Staats,  607. 

Bayley's  Case,  401,  637,  638,  669. 

Bayley  v.  Bayley,  50,  718,  719,  721. 

Baylis,  In  re  Goods  of,  146. 

Beat  V.  Storm,  105. 

Beall  V.  Cunningham,  175. 

Beam  v.  Paterson  Safe  Deposit  & 
Trust  Co.,  381. 

Beatty  v.  Trustees,  410. 

Bechtold  v.  Read,  416,  417,  418, 
450,  455,  456,  624. 

Beckhaus  v.  Ladner,  702. 

Beers  v.  Shannon,  254. 

Beggans'  Case,  89,  130,  133,  I34, 
135,  140,  141,.  143- 

Behring's  Case,  In  re,  347. 

Belcher  v.  Belcher,  351. 

Bell  V.  White,  295. 

Bellerjeau  v.  Kotts,  416. 

Bennett  v.  Bennett,  106.  107,  149, 
150,  166,  167,  169. 

Benson  v.  Wolf,  283,  284,  287,  288. 

Bentley  v.  Dixon,  606,  607. 

Berdan's  Case,   130,   141,   142,   143. 

Berry's  Case,  210. 

Bethlehem  Iron  Co.  v.  Philadel- 
phia &  Seashore  R.  R.  Co.,  510, 

511- 
Binsse  v.  Paige,  410. 
Bioren    v.    Nesler.    130,    132.    133, 

135,  140,  141,  142,  143,  232. 
Bird    V.    Hawkins,    546,    624,    631 

634,  635. 
Bird  V.  Wiggins,  312,  313. 
Birkholm    v.    Wardell,    393.     532, 

546,  549,  640,  670,  671.  674,  695. 
Bishop  V.  Bishop,  147. 
Black,  Estate  of,  707. 
Black  V.  Black,  525,  526. 
Black  V.  Foljambe,  156. 
Black  V.  Whitall,  48,  338,  341,  631. 


632.  648,  655,  701,  704- 
Blackborough  v.  Davis,  68. 
Blackett  v.  Ziegler,  175. 
Blackslee,  In  re,   128. 
Blackwell  v.  Blackwell  402,  404. 
Blake  v.  People,  734. 
Blauvelt    v.    Ackerman,    394,    399. 

450,  691. 
Bleecker  v.  Hennion,  493. 
Bliss  V.  N.  Y.  Life  Insurance  Co., 

511. 
Bloom  V.  Terwilliger,  140. 
Bloomfield  v.  Ash,  80. 
Bockover  v.  Ayres,  516,  518. 
Bogart,  Matter  of,  734. 
Bogert  V.  Bateman,  91,  130,  142. 
Bogert  V.  Hertell,  413.  415. 
Bogy  V.  Roberts,  703. 
Bohle  V.  Hasselbrock,  573. 
Boisaubin   v.   Boisaubin,    159,    164. 
Bolles  V.  Bolles,  314,  606,  607. 
Bonnell  v.  Bonnell,  350.  356. 
Booraem's  Case,  273. 
Boulton  V.  Scott,  42,  48,  6:^2,  648. 

65s,  72,?,- 
Bowe  V.  Naughton,  140,  141. 
Bowen  v.  Johnson,  68. 
Boylan   v.   Meeker,    114,    116.    117. 

118,  119,  120,  124,  144,  171,   172. 

173,  178,  183,  233. 
Boynton  v.  Sandford,  526,  540. 
Bracher's  Will.  In  re,  190. 
Braddock  v.  Hinchman,  373. 
Bradway  v.  Holmes,  277,  550,  618. 
Brady  v.  McBride,  104. 
Brands   v.   DeWitt,   704,  735- 
Brashears  v.  Orme.   118. 
Bray  v.  Neill,  43.  397,  426,  460,  473. 

474,  484.  486,  487,  499. 
Brearley  v.  Brearley,  351,  4^6. 
Brearley  v.  Molten.  553,  554.  557- 
Breining's  Case,   132. 
Brengel's  Will,  In  re,  150,  157,  164. 
Brewster    v.    Demarest,    380,    382, 

38s,  552.  669,  692. 
Brick  V.  Brick,   137.   138,   152,   I59. 

166. 


Table  of  Cases  Cited. 


1365 


Brinkerhoff  .v.  Banta,  400. 
Brinkerhoff,  v.  Ransom,  466. 
Brokaw  v.  Brokaw,  355,  427,  625, 

671,  674. 
Brokaw  v.  Hudson,  339. 
Brooke  v.  Kent,  181. 
Brooks  V.   Metropolitan   Life   Ins. 

Co.,  759- 
Brothers  v.  Pickel,  227. 
Brown    v.    Brown,    376,    381,    387, 

436,  555,  556.  557- 
Brown  v.  Murray,  342. 
Brown  v.  Pancoast,  295. 
Brown  v.  Ryder,  80,  289. 
Brown  v.  Wallis,  T/T. 
Brown  v.  Welsh,  804. 
Brownlee   v.   Lockwood,  277;   618, 

628. 
Bruere  v.  Gulick,  685. 
Brunson  v.  Burnett,  68. 
Brush    V.    Young,    293,    296,    297, 

443- 


Bryan's  Appeal,  100.  loi. 
Buchanan   v.    Buchanan.   240,   2^0. 

338. 
Buchanan  v.  Pierie,  112. 
Buck,  In   re,   125,   129. 
Buckman's   Will,    In   re.    103,    107, 

121,  150. 
Budd  V.  Hiler,  299,  342.  364.  620. 
Buecker  v.  Carr.  56.  71. 
Bumstead  v.  Judges.  228. 
Burgis  V.  Burgis,  68. 
Burkhardt  v.  Burkhardt.  195. 
Burnett  v.  Eaton,  454. 
Burnham  v.  Dalling,  552,  646,  649. 
Burr  V.  Burr,  233,  235.  674. 
Burton  v.  Mellis,  557. 
Bussom  V.  Forsyth,  709. 
Byard  v.  Conover,  159. 
Byrnes    v.   Gibson,    149,    152,    156. 

160,  161,  171,  172. 


Calvin,  Estate  of,  288. 

Camden    Mutual    Life    Insurance 

Assn.  V.  Jones,  503,  591. 
Campbell,  Matter  of,  175. 
Campbell  v.  Campbell,  546. 
Campbell  v.   Cole,  433. 
Campbell  v.  Hough,  505,  513,  515. 
Campbell  v.  Mackie,  410. 
Campbell  v.  Purdy,  410. 
Campbell  v.  Thatcher,  68. 
Campfield  v.  Ely,  532. 
Carey  v.  Monroe,  367,  369,  664. 
Carlin  v.  Carlin,  88,  667. 
Carolus  v.  Lynch,  68. 
Carow  V.  Mowatt,  267. 
Carpenter  v.  Cameron,  145. 
Carpenter  v.  Gray,  313,  314,  601. 
Carrick  v.  Carrick,  277,  618. 
Carroll  v.  Baxter,  81. 
Carroll  v.  Bonham,  239. 
Carroll  v.  Hause,  150,  159. 
Carson  v.  Marshall,  450. 
Carter's  Case,   108,   152. 


Carter's    Estate,    In    re,    434,    435, 

445- 
Case  V.  Hasse,  136. 
Casey's  Will,  In  re.  113. 
Casselman  v.   McCooley,  275,  431, 

444- 
Cassidy,  In  re,  42,  43,  243. 
Cazassa  v.  Cazassa,  701. 
Chadwick's  Case,  12,  56,  196,  213. 
Chaffee     v.      Baptist      Missionary 

Convention,  128. 
Chamberlain,  In  re,  198. 
Chamberlin  v.  McDowell,  533,  541. 
Chandler   v.   Thompson,   432.   433. 
Chappell,  In  re  Goods  of.   146. 
Charlick's   Estate,  y},^,. 
Chase  v.  Kittredge,  128. 
Cliiswcll  v.  Morris,  494. 
Chittendon,  In  re,  296,  603. 
Christy  v.  Vest,  254. 
Claffey  v.   Lcdwith,    104,    107,    ii;9, 

165. 
Clark's  Will,  In  re,  135,  142. 


1366 


Probate   Law   and   Practice. 


Clark  V.  Clark.  135. 

Clark  V.  Costello,  42,  48,  71,  498. 

Clark  V.  Haines.  81.  86. 

Clark  V.  Hornbeck,  342,  638. 

Clark  V.  Knox,  410. 

Clarke  v.  Canfield,  195.  395. 

Clarke  v.  Johnston,  631,  634. 

Claus'  Will,  In  re,  93. 

Claypool  V.  Norcross,  81,  83. 

Clayton  v.  Somers.  485.  533,  54i- 

Clement's    Appeal,    In    re.    69,    "jz, 

610,  742. 
Clifton   V.    Clifton,    106,    107.    114. 

122.  123.  149,  156. 
Clinch  V.  Eckford,  410. 
Cline  V.  Prall,  510. 
Cocks,   Matter  of,  385. 
Coddington  v.   Bispham,  355,  581. 

631.  634. 
Coddington  v.  Jenner,  244,  245. 
Coddington  v.  Stone,  381. 
Cohen  v.  Moss,  339. 
Cole's  Will,  In  re,  129. 
Cole  V.  Lee,  525. 
Cole  V.  Wooden.  288,  421. 
Coles  V.  Feeney.  355.  429. 
Colgate  V.  Colgate,  419,  454. 
Collard  v.   Collard,   180. 
Collier  v.  Munn,  410. 
Collins,  Alatter  of.  99. 
Collins  V.  Lewis,  573. 
Collins  V.  Osborn,  108,  120. 
Collins  V.  Steuart,  573. 
Collins  V.  Townley,   108,  233,  236. 
Combes  v.  Cadmus,  553,  556. 
Combs  V.  Jolly,  97.  99. 
Comer  v.  Comer,  701,  734. 
Compton's  Case,  783. 
Compton  V.  Mitton.   130.   133,   136. 

143,   144,  202. 
Congar  v.  Brady,  464. 
Conover's  Case.  334. 
Conover  v.  Conover,  48.  632,  648. 
Conover  v.  Ellis.  682,  686. 
Conover  v.  Walling,  78,  510,  514. 
Conway  v.  Ewald,   144. 
Cook  V.  Cook.  350,  351,  353,  354, 

431,  432,  518. 


Cook  V.  Gilmore.  410. 
Cook  V.  Lum,  346. 
Cooke  V.   Woman's   Aledical   Col- 
lege, 431. 
Cooley  V.  Vansyckle,  364,  368,  370. 

403.  405.  536,  573.  637,  640,  644. 
Coombs,  Ex  parte,  47. 
Cooper,  In  re  Goods  of,  145. 
Cooper's  Will,  In  re,  138,  160,  162, 

163,   164,   166,   167,   172,   173. 
Cooper  V.  Cooper,  607. 
Cooper  V.  Wallace,  780,  782. 
Cooper  V.  Wells,  343. 
Coppuck  V.  Wilson.  588,  591. 
Corblis'  Will,  In  re,   154. 
Cordwell's  Estate,  In  re.  734. 
Corle's  Case,  395. 
Corle  V.   iMonkhouse,  343,   370. 
Cornish  v.  Cornish,  68. 
Cornwell  v.  Deck,  403. 
Corr  V.  Porter,   176. 
Coudert  v.  Coudert,  186. 
Coughlin's  Case,  116. 
Coursen's  Will,  In  re,   11,   12,   13, 

42,  197,  221,  413. 
Courtenay  v.   Williams,  734. 
Cowley  V.  Knapp,  99,  183. 
Cox  V.  Roome,  354,  405. 
Cox  V.  Wills,  550,  556. 
Cozzens,  Alatter  of,  385. 
Craft's  Estate.  In  re,  103,  104.  106. 

108.  116,  156.  160. 
Cramer    v.    Sharp,    262,    265,    266, 

272,  292. 
Crane  v.  Bolles,  350.  356. 
Crane  v.  Brewer,  346. 
Crane  v.  Hearn,  389,  412,  415,  418. 

420,  608. 
Crane  v.  Howell,  419,  420. 
Crane  v.  Van  Duyne,  401,  557,  558, 

768. 
Crater  v.  Smith,  547,  564. 
Craven's  Case,  382,  385. 
Crawford  v.  Lees,  42,  48,  56,  58, 

71,  200,  210,  211. 
Cresse's  Case.  266. 
Creveling  v.  Fritts,  450,  453. 
Crisp  V.  Dunn.  563.  592. 


Table  of  Cases  Cited. 


1367 


Crocker  v.  Crocker,  68. 
Crombie  v.  Engle,  513,  652. 
LTronkright  v.  Haulenbeck,  494. 
Crooke  v.  Watt,  699. 
Crosby  v.  Leavitt.  254. 
Cruikshank  v.  Parker,  351,  431. 
Crum  V.  Moore,  541. 
Culver  V.  Brown,  655,  682. 


Culver  V.  Culver,  450. 
Culver  V.  Pierson,  43. 
Cumberland  Trust  Co.  v.  Padgett, 

384. 
Cunningham  v.  Stanford,  566. 
Current  v.  Current,  355. 
Curric  v.   Knight.  584. 
Curtis  V.  Curtis,  735. 


D 


Dale's  Appeal,   118,   163. 

Dale  V.  Dale,  159,  161,  163,  165. 

Daly.  Estate  of,  385. 

Danly  v.  Cummins,  677. 

Darnell  v.  Buzby,  131,  132,  135. 

Davenport's    Case,    284,    285,    286. 

288,  289.  290. 
Davenport  v.  Davenport,  in,  112. 

245. 
Davis,   In   re  Anastasia,    161,    162, 

163,    171. 
Davis  V.  Combs,  656. 
Davis  V.  Howell,  535. 
Davis  V.  Newton,  734. 
Davis  V.  Vanderveer,  705. 
Davison  v.  Davison,  341,  666,  667. 
Davison  v.  Rake.  79,  92,  "jjiZ. 
Dawson  v.  Macknet,  702. 
Day    v.    Day,    137,    138,    139,    160, 

184,  233. 
Dean's  Case,  331,  Zi-- 
Debow  V.  Colfax,  343. 
De  Camp  v.  Wilson,  523. 
Decker  v.  Decker,  633,  634. 
Decker  v.  Aliller,  543. 
De    Concillio    v.    Brownrigg,    374. 

375.   533,   542. 
Deegan  v.  Capner,  396,  400. 
Degnan's  Case,  262,  265,  273. 
Deichman  v.  Arndt,  340. 
De  Kay  v.  Darrah,  528. 
Delany  v.  Noble,  82,  737. 
Demarest  v.  Vandenberg,  568. 
Dempsey's    Will,    272. 
Den  V.  Allen,  221. 
Den  V.  Gibbons,  114,  116,  120,  156, 

169. 


Den  V.  Hillman,  456. 

Den  V.  Jaques,  463. 

Den  V.  Johnson,   106. 

Den  V.  Jones,  457. 

Den  V.   Lambert,   512. 

Den  V.  McKnight,  450. 

Den  V.   McPeake,  703. 

Den  V.  O'Hanlon,  71. 

Den  V.  Philhower,  512. 

Den  V.  Vancleve,   106,   in.   118. 

Den  V.  Wright,  450. 

Denise  v.  Denise,  339,  -J2,2).  734- 

Denton  v.  Clark,  437. 

De  Peyster,  Matter  of,  678. 

Devine,  In  re,  91,  447,  448,  502. 

Devling  v.  Little.  415. 

Dey  v.  Codman,  376,  400.  406,  407, 

427,  440,  553,  554.  556,  557.  640, 

657. 
Diament's     Estate,     In     re.      183, 

184. 
Dibble   v.    Woodhull,   530. 
Dickerson  v.   Dickerson.  2,^)},,  600, 

785. 
Dickerson   v.   Miller.  328. 
Dickerson    v.    Robinson,   323.   324, 

325.  Z-^T,  330,  4' 3. 
Dieffcnbach  v.  Grece,  no. 
Dietz's  Case,  46.  ng,  149. 
Dietz  v.   Dietz,   78,  284,  286,  289, 

290. 
Dildine  v.  Dildine,  710. 
Dillingham  v.  Martin,  299,  300. 
Dillon's  Will,  In  re,  106,   107,  131. 
Dilts   V.   Stevenson,  338,   363,  368. 
Disbrow  v.  Durand,  521,  522,  524. 
Dissenger's  Case,  394,  399,  769- 


1368 


Probate   Law   and   Practice. 


Dixon  V.  Bentley.  628,  767. 
Dodd  V.  Lindsley,  465,  479. 
Dodson   V.   Sevars,   480,   579,   580. 

583,  m,  728. 

Dodson  V.  Taylor,  464.  465. 
Dolan  V.  Brown,  434. 
Doll  V.  Cash,  478,  504. 
Dolman  v.  Cook,  543,  544. 
Donahay   v.    Hall,    262,    265,    267, 

272,  277,  278. 
Donnington  v.  Mitchell,  265,  699. 
Doolittle  V.  Willet,  372,  374. 
Dorchester   v.  Webb,   421. 
Doremus'  Case,  395,  396,  397. 
Dorsheimer  v.  Rorback.  326.  404, 

IIZ^  737- 
'Downie  v.  Knowles,  668. 
Dreier's    Estate,    In    re,    406,    408, 

520,  669,  672. 
Dries'  Case,  Philip,  153. 


Drost  V.  Corle,  525. 
Drummond  v.  Jones,  442. 
Dufford   V.    Smith,   380,   382.   385. 

390,  554,  642,  668,  669,  670,  691. 

692. 
Dumont  v.  Dumont,  149,  154,  156. 

162.  169. 
Duncan  v.   Barnes,  628. 
Duncan  v.  Davison,  416,  420,  629. 

661. 
Dunham  v.  Doremus,  TZ'^- 
Dunham   v.    Marsh,   46,    661,   662. 

663,  665,  ^2Z. 
Dunn  V.   Campbell,   534,   535,   54i. 

542.  562,  570. 
Durbrow  v.  Eppens,  567. 
Dutton  V.  Pugh,  350. 
Duvale  v.  Duvale,  524. 
Dwight  V.  Newell,  413. 
Dyer  v.  Riley,  416,  417,  420. 


Eakin.  In  re,  Ti},,  731. 

Eakin   v.   Brick,   597. 

Earl  V.  Halsey,  456. 

Earle  v.  New  Brunswick.  438. 

Earle  v.  Norfolk,  149,  150. 

Earnest  v.  Earnest,  702. 

Eatley's  Will,  In  re,  152,  156,  157, 

160,  164,  165,  169,  170. 
Eddy's  Case,  108,  156,  157,  235. 
Edge  V.  Edge,  109. 
Edwards  v.  Edwards,  159. 
Edwards  v.  Freeman,  701. 
Edwards  v.  McClave,  465,  480. 
Egerton  v.  Egerton,  520,  522,  545, 

616,  669,  671. 
Eggers  V.  Anderson,  522. 
Eldridge  v.  Lippincott,  751. 
Elkinton   v.    Brick,    103,    115,    116, 

117,   125,   131,   135,  141,   149,   155, 

156. 
Ellicott  V.  Chamberlin.  271,  399. 
Ellicott  V.  Kuhl,  572,  573,  575.  576. 
Ellison  V.  Lindsey,  588. 


Elmer  v.  Loper,  669,  692. 

Elston  V.  Carpenter,  398. 

Ely  V.  Ely,  421. 

Embley  v.  Hunt,  85.  87,  227,  228, 

229. 
Emson  v.  Allen,  519,  566,  568.  577, 

578,  579- 
Emson  V.  Ivins,  583. 
Engle  V.  Crombie,  652,  658. 
English  V.   Newell,  416,  417,   418. 

650. 
Equitable  Life  Assurance  Society 

V.  Chesley,  663. 
Errickson  v.  Fields,  in,  133. 
Eschbach  v.  Collins,  180. 
Eureka  Life  Ins.  Co.  v.  Geis,  806. 
Evans,  In  re.  46,  56,  58,  71,  "jz.  201, 

610. 
Evans  v.  Walsh,  533. 
Everitt"v.  Williams,  414,  473,  499. 

527,  528,  538. 
Exton  V.  Zule.  717,  718,  719,  720, 

721. 


Table  of  Cases  Cited. 


1369 


Farley  v.  Farley,  89.  140,  141. 

Farnum  v.  Boyd,  114,  168. 

Farrow  v.  Farrow.  345. 

Fay  V.  Fay,  531. 

Fennimore  v.  Fennimore,  412,  416, 

456,  649,  650. 
Ferdon's  Case,  44. 
Fesmire  v.  Shannon,  415. 
Fidler  v.  Higgins.  353.  518. 
Field  V.  Field,  634. 
Field  V.  Thistle,  563,  569. 
Filley  v.  Van  Dyke,  631,  634. 
First  Baptist  Church  v.  Syms,  504. 
First  National  Bank  v.  Thompson. 

375,  414,  461,  516,  528.  534,  541. 

542,  543,  561,  573,  735- 
Fiscus  V.  Fiscus,  733. 
Fisher's  Case.  12,  197,  198. 
Fisher  v.  Quick,  387,  402. 
Fisher  v.   Skillman,  403,  404.  406. 

416,  417,  441- 
Fisk  V.  Fisk,  705. 
Flaacke's   Estate,   In   re,   344,   406, 

408,  409,  410,  673,  678,  679. 
Flinn's  Case,  602. 
Fluck  V.  Lake,  288,  392,  396,  402, 

410,  671,  673,  674,  692,  693. 
Fluck  V.  Rea,  115. 
Fluke  V.  Fluke,  350,  356. 


Flunimerfelt  v.  Fluminerfelt.   557. 
Fogg's  Case,  536.  564,  568,  590. 
Folwell's  Estate.  In  re,  106.  624. 
Folwell  V.  Folwell.   126.   127. 
Ford  V.  Westervelt,  482.  545. 
Fosdick  V.  Delafield,  147. 
Foster  v.  Dey,  449. 
Foster  v.   Knowles,  468,  469. 
Fowler  v.  Colt,  388,  392,  393,  411. 

532,  551,  677. 
Franks  v.  Cooper,  543. 
Frean  v.  Hudson,  521,  522,  525. 
Freccia.  In  re,  262,  270. 
Fredericks   v.    Iscnnian,   467. 
French  v.  County  Home,  68. 
Frey's  Case,  85,  375,  411,  532,  543, 

544,  668,  669,  670,  693. 
Frey  v.   Demarest,   631,   632,   634. 

655,  737- 
Frey  v.  Frey,  392,  395.  397,  693. 
Friesner  v.  Symonds,  754. 
Fritz's  Estate,  In  re,  43. 
Fritz  V.  Turner,  128,  149,  152. 
Frost  V.  Dcnman,  392,  395,  693. 
Frost  V.  Wheeler,  104.  114,  235. 
Frothingham's  Case,  180,  181. 
Furgeson  v.  Jones,  797. 
Furman  v.  Furman,  487. 


Gahagan,  In  re,  109,  132,  140,  141. 
Gaines  v.  Chew,  68. 
Gaines  v.  Green  Pond  Iron  Min- 
ing Co.,  343. 
Gaines  v.  Hennen,  68. 
Gale,  In  re  Goods  of,  146. 
Gallagher  v.   AIcBride,  375. 
Gans  V.  Dabergott,  261. 
Gardella,  In  re,  139. 
Gargia  v.  Foster,  537,  563. 
Garrett  v.  Pierson,  734. 
Garrison  v.  Garrison,  122,  123. 
Gaston  Trust,  In  re,  321,  668. 
Gay  V.  Mooney,  524. 
Geiser's  Will,  In  re,  12. 


George's  Appeal,  68. 
George  v.  Baker,  415. 
Gcst  V.  Flock.  350,  356. 
Giberson    v.    Giberson,    297,    442, 

443- 
Gilham's    Will,    In    re,    104.    150. 
(jill  V.  Roberts,  707. 
Gilligan  v.  Daly,  37^.  374,  679,  680, 

694,  695. 
Gilman  v.  Aycr,  104,  107,  lu,  167. 
Gilman  v.  Healy,  416. 
(jilmore  v.  Tuttle,  383,  397. 
Githens  v.  Goodwin,  72,  647,  654, 

660. 
Givcns'  Case,  331,  33^,  504. 


1370 


Probate   Law    and   Practice. 


Gleespin,  In  re  John,  114,  119,  120, 

152,  156. 
Gloucester  v.  Eschljach,  331. 
Gloucester  City  v.  Greene,  81,  83, 

87. 
Goble  V.  Grant,  94,   116,   121. 
Godfrey's   Case,  478,  483. 
Gordon's  Case,  171. 
Gordon's  Estate.  In  re,  163. 
Gordon  v.  Barkelew,  703. 
Gordon  v.  Olds,  191. 
Gordon  v.  Toler,  346,  347. 
Gosnell  V.  Flack,  734. 
Gottlieb  V.   N.   J.   Street   Railway 

Co.,  345- 
Gould  V.  Moulahan,  530,  531. 
Gould  V.  Tingley,  591. 
Graham  v.  Dickinson,  487. 
Graham  v.  Houghtalin,  ^2.  48,  754, 

762,  767. 
Grant  v.  Chambers,  343. 
Grandin  v.   Reading,   524. 
Grant  v.   Spann,    145. 


Grant    v.    Stamler,    113,    117,    123, 

166,  188,  225,  235. 
Gratacap  v.  Phyfe,  624.  625. 
Grattan's    Estate,    In    re,    98,    342, 

721. 
Gray  v.  Fox,  48,  385,  390. 
Gray  v.  Gray,  605.  » 
Gray  v.   Myrick,   646. 
Graydon  v.  Graydon,  404. 
Grece  v.  Helm,  288. 
Green's  Case,  402. 
Green,  In  re,  327,  328,  329. 
Green  v.  Blackwell,  78. 
Green   v.   Groocock,   404. 
Green  v.  Hathaway,  704. 
Greene   v.    Butterworth,    535,    564. 
Greenwood  v.  Law.  343. 
Greiner  v.  Greiner,  401.  525. 
Griggs  V.  Veghte,  442,  443,  532. 
Grissom's  Case,  74. 
Grumley  v.   Grumley,   700. 
Gunn  V.  Early,  92,   142. 
Gurrieri,  In  re  Carmelo,  269. 


H 


Haas  V.  Childs,  286. 

Hackensack      Savings      Bank      v. 

Morse,  469. 
Hagan  v.  Piatt,  392. 
Haggerty  v.  Lanterman,  431. 
Haggerty   v.    McCanna,    558,    760, 

769. 
Haines,  In  re,  676. 
Haines  v.  Haines,  342. 
Haines  v.  Price,  350,  457,  529.  535, 

544- 
Halsey,  In  re  Cornelia  B..  54. 
Halsey  v.   Patterson,  548. 
Halsted   v.   Meeker,  388,   397. 
Halsted  v.  Tyng,  670. 
"Hamburgh    Mfg.    Co.    v.    Edsall, 

370,  396,  399- 
Hammond  v.  Cronkright,  533,  551. 
Hance  v.  McKnight,  455. 
Hardin  v.  Lawrence,  493. 
Hardy  v.  Martin,   118. 
Harker  v.   Irick,  322,   ^23. 


Harral  v.  Harral,  721. 
Harrall's  Case,  525,  782. 
Harrington  v.  Brown,  255. 
Harris'   Goods,    181. 
Harris  v.  Betson,   109. 
Harris  v.  Vanderveer,  137,  138. 
Harris  v.  White,  715. 
Harrison  v.  Fleischman.  573. 
Harrison  v.  Patterson.  566. 
Harrison  v.  Weldon,  68. 
Hartnett  v.  Wandell,  146,  147. 
Hartson  v.  Elden,  377,  395.  618. 
Hartwell  v.  Martin,   loi. 
Haskin  v.  Teller,  733. 
Hastendenbeck,  In  re,  623,  624. 
Haston  v.  Castner,  459,  467. 
Hatt   V.   Rich,   431,   434,   437,   438, 

439- 
Hattersley  v.  Bissett,  461.  471,  486, 

548.  703. 
Hattie  v.  Gehin,  436,  439. 
Haughwout  V.  Murphy,  355. 


Table  of  Cases  Cited. 


1 37 1 


Haulenbeck     v.     Cronkriglit,     404, 

554.  557- 
Haven  v.  Foster,  174. 
Havens  v.  Thompson.  704,  735. 
Haydock    v.    Haydock,    149.    150. 

151.   159- 
Hayes  v.  Hayes,  250,  338,  734. 
Hayes  v.  King,  705. 
Hayes  v.  Parker,  628. 
Hayle  v.  Hasted,  68. 
Hazen  v.  Durling,  324,  325. 
Healey  v.  Healey,  526. 
Heath's  Case,  65,  642. 
Heath  v.  Maddock,  603,  604,  605. 

616. 
Hebden's    Will,    In    re,    237,    238. 

241. 
Hedges  v.  Norris,  626,  Til- 
Hegeman   v.   Roome,  443,  444. 
Heidecamp    v.    Jersey    City,    etc.. 

R.  R.  Co..  804. 
Heisler  v.  Sharp,  91,  340,  370.  526, 

540,  601. 
Hellier  v.  Lord.  374. 
Herbert  v.  Tuthill,  350,  356. 
Herkimer  v.  McGregor,  701. 
Hertell  v.  Bogert,  412,  415. 
Hess  v.  Cole,  42.  70,  71. 
Hesselman  v.  Haas,  799. 
Hetfield  v.  Debaud.  392,  396,  668. 
Hetzel  V.  Hetzel,  546. 
Hewes  v.  Hurfif,  527. 
Kibbler's    Case,    In    re,    293,    y^T, 

684,  685,  686. 
Hicks  V.  Willis,  509. 
Higbie  v.  Morris,  545,  546,  547. 
Higgins  V.  McQuirk,  235. 
Hildrotli  V.  Marshall,  131,  132,  138. 
Hildrcth   v.   Schillinger,  245. 
Hill's    Case,   80,   90,   95.   264,   266, 

267. 
Hill  V.  Bloom,  ']22,. 
Hill  V.  Day,   119. 
Hill  V.  Hill,  418,  420,  451,  452,  620, 

632,  649,  661,  662. 
Hill  V.  Smalley,  272. 
Hill  V.  Smith,  350,  356. 


Killers  v.  Taylor,  797. 

Hillyer  v.  Schenck,  81,  82.  83.  87. 

Hilyard    v.    Wood.    179.    180.    184. 

235. 
Koagland  v.  Cooper.  277. 
Hoboken   Bank,  etc.   v.   Sclnvoon. 

348. 
Hodnett,  In  re,  11,  14,  71,  192,  195. 
Kohokus  V.  Erie  R.  R..  42.  48,  71. 

438,  487.  488,  498. 
Hoit  V.  Koit.  82,  22,},. 
Holcomb  V.  Coryell,  207,  311.  313, 

314-  315.  388,  603,  608. 
Holcombe  v.  Holcombe,   184,  388, 

389,  393.  403.  40s.  409.  414.  415. 

420,  450,  451,  454,  455.  554.  y^-j, 

664,  682,  689. 
Hollinger  v.  Syms,  113,  235. 
Holmes  v.  McPheeters,  734. 
Honnass,  In  re,  2,2"^. 
Hopkins  v.  Meir,  480. 
Horner  v.  Web.ster,  524,  525. 
Hosack  V.  Rogers,  545. 
House  V.  Ev^ren,  430. 
Houston  V.  Levy,  465,  479,  631. 
Howard,  In  re,  115,  117,  164,  165. 
Howard  v.  Francis,   37^,  424,  426, 

558. 
Howard  v.  Howard,  314,  728. 
Howell  V.  Howell,  569. 
Howell  V.  Potts.  586,  587,  590. 
Howell  V.  Schenck,  343. 
Howell  V.  Sebring,  513. 
Howell  V.  Taylor,  106,  152,  161. 
Howell  V.  Teel,  535. 
Howland  v.  Heckscher,  "j^^t- 
Hoyt  V.   Newbold,    195. 
Hubljard  V.  Hubbard,  174. 
Hughes   V.   Murtha,    156. 
Humphrey,    In    re.    108,    152,    i()i. 

797. 
Hunt  V.  Hunt,  119. 
Hunt  V.  Maybcrry,  43.  358,  "jyz. 
Hunt  V.  Smith,  294,  364,  405,  550. 

573.  617,  627,  637,  638. 
Hurlbut   V.   Hutton,  376,  408.  40<;, 

552,   640,  664. 


1372 


Probate   Law   and   Practice. 


Huston  V.  Cassedy,  450. 

Huston  V.   Cassidy.  404,  441,  454- 

668. 
Huston  V.  Reed,  339. 
Huston   V.    Roe,    668. 


Hutchinson  v.  Newbold,  471,  585. 

Hutton  V.  Hutton,  147. 

Hyer  v.  Morehouse,  652,  658,  659. 

660. 
Hynes'  Case,  Mary,  T],  79,  88. 


Incandescent    Light    &    C.    Co.    v.       Ivory  v.  Klein.  554,  556. 
Stevenson,  459. 


Jackson  v.  Jackson,  397. 

Jackson  v.  Reynolds,  656,  657,  658. 

Jackson  v.  Todd,  760. 

Jacobus  V.  Jacobus,  353,  354,  405. 

Jacobus  V.  Munn,  685,  693,  694. 

Jacques  v.  Ennis,  495,  509. 

Jeffrey  v.  Towar,  396. 

Jeffs  v.  Wood,  7ZZ,  734- 

Jenkins   v.   Guarantee  Trust,   etc., 

Co.,  98,  255,  721. 
Jessop  V.  Watson,  699. 
Johns  V.  Norris,  456. 
Johnson,  In  re,  797. 
Johnson's  Case,  99,   107,   162,   167. 


Johnson  v.  Cummins,  265. 

Johnson  v.  Eicke,  393,  652. 

Johnson  v.  Hubbell,  524. 

Johnson  v.  Lawrence,  685. 

Johnston  v.  Morrow,  533. 

Johnston  v.  Smith,  254. 

Jonas  V.  Hunt,  554,  557- 

Jones  V.  Davenport,  467,  468,  525. 

Jones  V.  Haines,  626. 

Jones  V.  Jones,  350. 

Joralemon  v.  Van  Riper,  442,  443. 

Jordan  v.  Logue,  663. 

Judson  V.  Gibbons,  2T2. 


K 


Kahl  V.  Schober,  115,  137. 

Kaminer  v.  Hope,  288. 

Kayhart  v.  Whitehead,  80,  89,  90, 

232,  233. 
Kearney  v.  Kearney,  557,  558. 
Kearns  v.  Kearns,  548. 
Keeler  v.  Keeler,  407. 
Keene  v.  Munn,  427,  545,  546. 
Keeney  v.  Henning,  632,  641,  656, 

657,  692,  766,  768. 
Keep  V.  Miller,  355. 
Kelly's  Estate,  In  re,  175. 
Kenney  v.  Tucker,  735. 
Kent  v.  Pickering,  543. 
Ker  v.  Banta,  444. 
Kern  v.  Kern,   iii,   119. 
Kershaw  v.  Kershaw,  735. 
Ketcham,  In  re,  644. 
Keyser  v.  Kelly,  624. 


King  V.  Berry,  392,  393,  395,  396, 

404,  406,  626,  631,  632. 
King    V.    Foerster,    417,    672,    673, 

674. 
King  V.  Rockhill,  536,  589,  594. 
King  V.  Ruckman,  355. 
Kingsland    v.    Scudder,    yi^^,    4o6, 

408,  409,  674,  688,  696. 
Kinna  v.  Smith,  343. 
Kinnan    v.    Wight,    520,    543,    544, 

552,  560. 
Kinney  v.  Emery,  199. 
Kip  V.  Van  Cortland,  174. 
Kirby  v.  Coles,  370,  669,  670. 
Kirkpatrick,   In   re,    141,    178,    179, 

184,   185,  260,  2^2,. 
Kise  V.  Heath,   108,  120,  152,   162. 
Kitchell    V.    Beach,    169,    171,   229, 

230. 


Table  of  Cases  Cited. 


1373 


Knapp's  Will.  In  re,  175. 

Knikel  v.  Spitz,  49. 

Knox  V.  Newman,   148. 

Knox  V.  Nobel,  267. 

Koch  V.  Feick.  572.  597,  662. 


Koegel    V.    Egner.    111,    117.    159. 

166. 
Kohler  v.  Knapp,  254. 
Krueger  v.  Ferry,  546. 


Lacey  v.  Dobbs,  130,  133.  I34.  I35. 

140. 
La  Foy  v.  La  Foy.  339,  734. 
Laible  v.  Ferry,  372,  373,  374. 
Laing,  In  re,  128. 
Lake  v.  Park,  395. 
Lake  v.  Weaver,  424. 
Lane,  Matter  of,  707. 
Langstroth    v.    Golding,    482,    486, 

549- 
Lanning  v.  Sisters  of  St.  Francis, 

295,  297,  443. 
Laroe  v.  Douglass,  418,  420. 
Lathrop  v.  Smalley,  394,  398.  601, 

602.  603,  604,  608,  675,  693. 
Lavaggi  V.  Borella,  145,  431. 
Lawson  v.  Acton,  43,  48,  470,  499, 

513- 
Leddel  v.  Starr,  606,  607. 
Lee's  Case,  107,  117,  123,  324,  327, 

330.  331- 
Lee  V.  Scudder.   112.   113. 
Lehigh  Valley  R.   R.   Co.  v.  Mc- 

Farland,  53,  231. 
Lent  V.  Howard,  376,  410. 
Leonard's  Will,  In  re,  199,  202. 
Lett   V.   Emmett,   603. 
Lewis'  Appeal,  703. 
Lewis'  Case,  In  re,   108,   114,  376, 

627. 
Lewis  V.  Champion,  569,  591,  592. 
Lewis  V.  Lundy,  702. 
Liddel  V.  McVickar,  406,  478,  485, 

488,  499,  542,  639,  652,  656,  657- 
Light's  Estate,  734. 


Lindley  v.   O'Reilly,  98,   103.  212, 

215.  351.  431- 
Lindsley  v.  Dodd,  403. 
Lindsley  v.  Personette,  295. 
Linell  V.  Linell,  704. 
Lippincott's  Case,  44,  662. 
Lippincott    V.    Bechtold,    456.   632, 

648. 
Lippincott  V.  Lippincott.  430.  431. 

434- 
Lippincott  V.  Stokes,  679. 
Lippincott  v.  WikofF,  136,  137,  268, 

437- 
Lister  V.  Weeks,  603,  608. 
Livingston's  Will,  In  re,  107. 
Lloyd  V.  Rowe,  715. 
Lockyer  v.  De  Hart,  457. 
Long  V.  Hewitt,  797. 
Lothrop's  Case,  13,  284,  285. 
Loudenslager V.Woodbury  Heights 

Land  Co..  399. 
Louderbough  v.  Weart,  431,  434- 
Lowe  V.  Williamson,  114,  122.  156, 

157. 
Ludlow   V.    Ludlow,   43,    89,    125, 

130,  131,  133.  421.  422. 
Luppie  V.  Winans,  751,  754- 
Luse  V.  Rarick,  674. 
Lutjen  V.  Lutjen,  187,  626. 
Lynch   V.  Clements,   121,   149.   150, 

151,   153.   156. 
Lyon  V.  Bird,  408,  684.  686. 
Lyon  V.  Church  of  the  Rcdtomcr, 

355- 
Lyons  v.  Van  Riper,  107,  138.  139. 


1374 


Probate   Law   and   Practice. 


M 


McCabe,  Matter  of,  i8i,  182. 
McCarthy  v.  McCarthy,  212,  353. 
McCloskey   v.    Bowden,   630,    672. 
McCoon   V.    Allen,    107,    116,    156. 
McCormick,  In  re  Estate  of,  797. 
McCormick,  Ex  parte,  145. 
McCormick  v.  Stephany,  343. 
McCoy  V.  Jordan,  118. 
McCnlloch   V.   Tomkins,  669,  693. 
McCullough  V.  Forrest,  346. 
McCullough   V.    McCullough,   386. 
McCully  V.  Lum,  639,  640. 
McCurdy   v.    Neall,   93,    141,    142, 

176. 
McDonald  v.  Hutton,  471,  513. 
McDonald  v.  O'Connell,  618. 
McDonnell,  Ex  parte,  145. 
McElwaine's  Will,  In  re,  125,  127, 

128,  129. 
McGee  v.  Ford,  734. 
McGill  V.  O'Connell,  342. 
Mclntyre  v.  Mclntyre,   182. 
McKeen  v.  Oliphant,  541. 
McKenzie  v.   Minard,   78,   89. 
McKinley  v.  Coe,  458. 
McKnight  v.  Walsh,  392,  396,  398, 

403,  550,  551,  676,  677,  678,  691, 

692,  693,  766. 
McLaughlin's  Case,  Catherine,  138, 

158. 
McLaughlin's  Will,  In  re,  188,  225. 
McLaughlin    v.    McLaughlin,    494, 

495- 
McLenahan  v.  McLenahan,  546. 
McMahon  v.  Schoonmaker,  463. 
McPherson,  In  re,  226. 
McRae  v.  McRae,  702. 
McSpirit,   In  re  Estate  of  James, 

363. 
McWhorter  v.  Benson,  376. 
Mackey  v.  Mackey,  97,  188. 
Mackin  v.  Mackin,  188,  225. 
Macknet  v.  Macknet,  628,  745,  767. 
Macy    V.    Mercantile    Trust    Co., 

386,  621,  637,  648. 
Maddock  v.  Astbury,  355. 


Magee  v.  Bradley,  626. 
Magnus  v.  Magnus,  100. 
Mahnken's  Case,  791. 
Male's  Case,  237,  238,  240,  241. 
Male  V.  Williams,  392. 
Mallett  V.  Bamber,  233,  234. 
Mallory  v.  Craige,  461,  634. 
Mandeville  v.  Parker,  133,  134. 
Manley,  In  re  Cioods  of,   146. 
Manners'  Case,   132,   141,   142. 
Manners  v.  Manners,  129. 
Manns  v.  A.  E.  Sanford  Co.,  371, 

540. 
Marcy,  In  re  Samuel,  397,  696. 
Marr  v.  Marr,  453,  454. 
Marsh's  Estate,  In  re,  285. 
Marsh's  Will,  In  re,  603,  604. 
Marsh  v.  Love,  440. 
Marsh  v.  Marsh,  682,  683. 
Marsh  v.  Oliver,  421. 
Marshall  v.  Carson,  456. 
Martin  v.  Cullen,  486,  548. 
Mathis  V.  Mathis,  394,  397. 
!Mathis  V.  Sears,  250. 
Mathis  V.  Stevenson,  537,  563. 
Matthews  v.  Hoagland,  421,  631. 
Maxwell's  Case,  137. 
Maxwell,  In  re,  197,  204,  206,  207, 

271,  272. 
Maxwell    v.    McCreery,    617,.  627, 

634. 
Meakings  v.  Cromwell,  432. 
Meeker  v.  Arrowsmith,  "JZT. 
Meeker   v.   Vanderveer,   371,    540. 
Meis  V.  Meis,  727. 
Melick  V.  Voorhees,  404,  440. 
Merchant's  Case,   In  re,  342,  343, 

374-  679. 

Merchants'  &  Miners'  Transporta- 
tion Co.  V.  Borland,  468. 

Merill  v.  New.  England  Life  Ins. 
Co..  254. 

Merrill  v.  Rush,  108,  iii. 

Merritt  v.  Jordan,  664. 

Merritt  v.  Merritt,  388,  724. 


Table  of  Cases  Cited. 


1375 


Merselis  v.  ^[erselis,  416.  628,  631. 

632,   650. 
Metcalfe   v.   Colics.   341.   678.   683. 

684,   701. 
Meyer's  Case,  232. 
Meyer  v.  Madreperla,  195. 
Meyers  v.  Weger,  466. 
Mickle  V.  Matlack,  143,  202. 
Middleditch  v.  Williams,  iti,  112. 

118.   120,   121,  171,  198. 
Middlesex  v.  New  Brunswick,  533. 
Middleton's   Case,   152,   158. 
Middleton  v.  Carter,  277.  544,  689. 
Middleton  v.  Middleton,  421,  478. 

521,   540.  671. 
Middleton  v.  Stewart.   105. 
Miles'  Appeal,   180. 
Miller's  Appeal.  701. 
Miller  v.  Harrison,  570. 
Miller  v.  Henderson,  338.  343. 
Miller   v.   Miller.  355,   429. 
Miller  v.  Pettit,  478,  594. 
Mink  V.  Walker,  291. 
Molten  V.  Sutphin,  440. 
Monroe  v.  Osborne,  381,  383,  384. 

400. 
Montgomery  v.  Bruere,  343. 
Montgomery  v.  Dunning,  364. 
Moore's  Case,  102,  183,  184. 
Moore  v.  Blauvelt,    149,    150,    152, 

157.   173- 
Moore  v.  Robhins,  351. 
Moore  v.  Zabriskie,  695. 
Moores  v.  Moores,  350,  356,  439. 
Morgan,  Matter  of.  701. 
Morgan  v.  Dodge,  68. 
Morgan  v.  Morgan,  516,  694. 
Morris'  Case,  90,  653,  659,  693,  604. 
Morris  v.  Dorsey.  431.  467,  484. 


Morris  v.  Morris.  610.  763. 
^forrisse  v.  Inglis,  510,  511. 
Morse     v.     Hackensack     Savings 

Bank.  350.  356,  439.  438. 
Morton's  Case,  93.  553. 
Moss  V.  Bardswell,   147. 
Mott,  In  re,  91,  395,  674. 
Mott  V.  Mott,  119. 
Mount  V.  Slack.  82.  675.  690,  691. 
Mount  V.  Van  Ness,  83,  394,  546. 
Mulcabv,   Matter  of   Dennis,  284, 

287. 
Muldoon  V.  Moore.  463.  467. 
Mulford  V.  Bowen,  450.  453. 
Mulford  V.  Hiers,  494,  495. 
Mulford  V.  Minch,  456. 
Mulford  V.  Alulford,  148,  343,  362, 

367,  370.  401.  406,  554.  710. 
Mullaney  v.  Mullaney.  43. 
Muller  V.  Muller,  421. 
Mundy  v.  Mundy,  94.  131.  135,  141, 

142,  143,  178.  179,  202. 
Munn,  Estate  of.  410. 
Munn  V.  Marsh,  468. 
Munn  V.  Munn.  92. 
Murch    V.    Smith    Mfg.    Co..    553, 

554.  557- 
Murray  v.  Blatchford.  416. 
Murray  v.   Lynch,  43,  45,  46,  69, 

192,  196,  198,  200.  210.  610. 
Mutual    Benefit    Life    Ins.    Co.    v. 

Howell   562.   568. 
Mutual   Insurance  Co.  v.   Hopper. 

465. 
Mutual    Life   Ins.   Co.   v.   v^turges. 

412,  415- 
Myers'  Case,  43.  153,  189,  199.  223. 
•Myers  v.  Daviess.  146. 
.Myers  v.  Myers,  173. 


N 


Naar  v.  Naar,  432. 

Napier,  Goods  of,  68. 

Naundorf  v.  Schumann,  442,  443. 

NeflF,  Appeal  of,  175. 

Nelson  v.  Krricksoii,  634. 

Nelson  v.  Nelson,  105,  424.  711. 


Nelson  V.   I'dtter,  98,  103,  212,  215, 

216,  220,  221,  721. 
Nevius  V.  Disl)orougii,  ~,7j,. 
New  V.  New,  734. 
Newark  Lime  &  Cement  Mfg.  Co. 

V.  Harrington.  464.  466. 


1 


1376 


Probate   Law   and   Practice. 


Newbold  v.  Fenimore,  561,  567. 
New    England    Mutual    Life    Ins. 

Co.  V.  Woodworth,  255. 
New     Jersey     Insurance     Co.     v. 

Meeker,  464. 
N.  J.  Title  Guaranty  &  Trust  Co.. 

In   re,  687. 
New  Jersey  Trust,  etc.,  Co.,  In  re, 

370,  657-  661. 


Newman  v.  Warner,  606. 
Nicklas  v.  Parker,  346,  349. 
Nicol  V.  Askew,  68. 
Noell  V.  Wells,  68. 
Nolan,  In  re  Martin,  225. 
Normand   v.    Grognard,   250,   255, 

256,  310,  349,  618,  628,  721. 
Northampton    County    Savings 

Bank,  In  re,  327,  330. 


Oberly  v.  Lerch.  353-  354.  355,  5i8, 

765. 
Obert  V.   Hammel.  42,  48,   70.   71, 

450,  473- 
Obert  V.  Obert,  450,  453-  454.  455- 
O'Brien  v.   Dwyer,    103,    107,    109. 
O'Callaghan,  Appeal  of,  44. 
O'Callaghan's  Case,  57 1.  573.  662. 
Ocean    View,    etc.,    Co.    v.    West 

Jersey  Title  Co.,  447- 
O'Donnell    v.    McCann,    543,    544- 

566,  576,  581.  li^^- 
Ogier's  Estate,  In  re,  148. 
Ogilvie  V.  Hamilton,  68. 
O'Hanlin  v.  Van  Kleeck.  471.  487. 
O'Neil  V.  Cleveland,  412. 
O'Neil  V.  Freeman,  579. 
Ordinary    v.    Barcalow,    Z^Z,    326. 

330,  423,  722,. 
Ordinary    v.    Connolly,    309,    33  L 

410. 
Ordinary  v.  Cooley,  308,  309,  324. 

504- 


Ordinary   v.    Dean,   2^2,   657,   758, 

760. 
Ordinary  v.  Fowler,  329. 
Ordinary    v.    Heishon,    308,    315, 

316,  326. 
Ordinary    v.    Kershaw.    323,    332, 

341,   648. 
Ordinary  v.  Poulson,  328,  330. 
Ordinary  v.   Smith,  308,  319,  325, 

731. 
Ordinary  v.  Snook,  330.  331. 
Ordinary  v.  Thatcher,  315,  319. 
Ordinary  v.  White,  325. 
Ordinary  v.  Wolfson,  323,  324. 
Osborn  v.  Allen,  195. 
Osborn  v.  Rogers,  94. 
Osborne  v.  Tunis,  343. 
Ott  V.  Tewksbury,  ']2']. 
Otterson  v.  Hofford,  124,  144,  220, 

221. 
Outcalt  V.  Appleby,  554.  557- 
Outwater  v.  Benson,  634. 


Palmer  v.  Casperson.  509,  516. 
Palmer  v.  Culbertson,  701. 
Pancoast  v.  Graham,  115,  123.  197, 

198. 
Parker  v.  Allen,  505. 
Parker   v.   Combs,   570. 
Parker  v.  Copland,  346. 
Parker  v.  Glover,  380,  381. 
Parker  v.  Johnson,  375. 
Parker  v.  Reynolds,  479,  502. 


Parker  v.  Seeley,  351,  431. 
Parker  v.  Stevens,  618. 
Parr's  Goods,  181. 
Parret  v.  Van  Winkle,  459. 
Parsons  v.  Parsons,  702. 
Partridge  v.  Havens,  703. 
Partridge  v.  Partridge,  48,  478. 
Patton  V.  Hope,  137,  138,  141. 
Paul  V.  Wilson,  372,  yji- 
Peck  V.   Cary,   115. 


Table  of  Cases  Cited. 


Pedrick  v.  Pedrick,  299. 

Peer  v.  Peer,  703. 

Pemberton's  Case,  78,  171. 

Penniman,  In  re,  181. 

Pennington  v.  Fowler,  735. 

People  V.  Miner,  415. 

Perrine  v.  Applegate,  94.  233,  234. 

-^35- 
Perrine    v.    Petty.    312,    313,    358, 

382,  384,  385.  398. 
Perrine  v.  Vreeland,  382. 
Person's  Appeal,  702. 
Personette  v.  Johnson,  90,  91,  93, 

376,  408.  471.  485,  677- 
Personette  v.  Personette.  525,  543. 

544. 

Petrie  v.  Voorhees.  340,  559. 

Petty  V.  Young,  421. 

Pew  V.  Hastings,  68. 

PfeffeHe  v.  Herr,  311.  313,  314. 
601.  602,  603,  762,  772. 

Phelan's  Estate,  In  re,  99,  128. 

Phelps  V.  Robbins,  100. 

Phillips,  In  re  John.  610. 

Pickel  V.  Alpaugh,  363. 

Picquet,  Appeal  of,  254. 

Pierce  v.  Pierce,  160. 

Piersol  v.  Roop.  434,  435. 

Pierson  v.  Garrison,  530,  531. 

Pierson  v.  Phillips,  573. 

Pinney  v.  McGregory,  254,  253. 

Pisano  v.  Shanley  Co.,  250,  255, 
256. 

Pitcher,  In   re,  478. 

Pitney  v.  Everson,  377,  685. 

Pittenger  v.  Pittenger,  48,  489. 

Plume  V.  Howard  Savings  Insti- 
tution, 42,  48,   71,   195. 


Podesta  v.  Binns,  42.  505. 

Podesta  v.  Moody.  90. 

Polhemus   v.   Middletnn.   407.   408. 

426. 
Polhemus  v.  Princilla.  512. 
Polhemus  v.  Priscilla,  512. 
Polis   V.  Tice,  674,  692. 
Pollard  V.  Barkley,  410. 
Pomeroy   v.    Mills,   648,   677.   678. 

682,  683.  691,  696. 
Porch   V.  Agnew,  511. 
Porch  V.  Fries,  759. 
Porter.  In  re,  555. 
Porter  v.  Trail.  212.  256. 
Porter  v.  Woodruff,  382,  383. 
Post  V.  Stevens,  410,  694. 
Post  V.  Van  Houten.  728. 
Potter  V.  Adriance,  430.  431. 
Potter  V.  Berry,  43. 
Poulson    V.    National    B.ink.    661. 

663. 
Pratt  V.  Boody,  465. 
Pratt  V.  Douglas,  554.  557.  721. 
Pratt  V.  Morrell,  434,  435. 
Pratt  V.  Rice,  414. 
Price  V.  Price,  314,  607. 
Prickett  v.  Prickett,  523. 
Prince  v.  Hazleton,  239. 
Probasco  v.  Creveling,  350,  356. 
Proprietors     of     Eastern     N  e  w 

Jersey  v.  Force,  417,  454. 
Prosser  v.  Wagner,  68. 
Proud  V.  Turner,  702. 
Pursel    V.    Pursel,    360,    326.    529, 

332.  669,  671,  672. 
Pyatt    V.    Pyatt,    4^.    43.    "•.    3/6. 

406,  408,  617,  620,  621,  622,  628, 

629,  661,  662,  669,  768,  769. 


Quarles  v.  Quarles,  702,  733. 
Queen,  In  re,  45,  46,  36,  38,  71,  94, 

197,  251,  610. 
Quick  V.   Fisher,  371,   386. 


Quiilort  V.   Pcrgcaux,  36.  71,    188, 

252. 
Quimby's   Estate,    In    re,  273,   293, 

295.  322. 


1378 


Probate   Law   and   Practice. 


R 


Ramsay  v.  Voorhees.  467. 
Ramsdell  v.  Streeter.   150.   159. 
Ramsey's   Estate,   In   re.   408,  418, 

558,  664,  674. 
Randall  v.  Beatty,   183,   184. 
Randall  v.  Gray,  689. 
Ransom   v.   Brinkerhoff,   322.   463, 

467. 
Ransom  v.  Geer,  421. 
Rattoon  v.  Overacker,  543. 
Rawlinson  v.  Shaw,  421. 
Read  v.  Drake,  86,  90.  95,  751,  758. 
Read  v.  Patterson,  550. 
Reading  v.  Wilson,  759. 
Receivers   v.   Paterson   Gas    Light 

Co.,  592. 
Reddish  v.  Miller,  429. 
Reed  v.  Harris,  179. 
Reeve's  Goods,   182. 
Reeve  v.  Townsend.  47,  91. 
Reeves  v.   Hannan,  343. 
Reeves  v.  Townsend,  587,  597. 
Richards  v.  Moore,  146. 
Rickenbacker  v.  Zimmerman,  701. 
Rickey  v.  Davis,  735. 
Ridgway  v.   English,   523. 
Riker's  Estate,  In  re,  667. 
Rinehart  v.  Rinehart.  260,  265,  266, 

421. 
Rix  V.   Smith,  68. 
Robbins  v.   Mylin.   735. 
Robbins  v.  Robbins,   131.   136. 
Roberts  v.  Wills,  344. 
Robertson   v.   McGeoch,  272. 
Robeson  v.  Duncan,  348. 
Robins  v.  Arnold,  562. 
Robinson  v.  Robinson,  254. 
Robinson  v.  Furman,  53,  474,  478, 

479.  484,  487. 


Roesel  v.  State,  11. 

Rogers,  In  re.  309. 

Rogers  v.  Gennng,  558. 

Rogers  v.  Hand,  340.  341,  371,  540, 

684. 
Rogers  v.  Traphagen,  549,   551. 
Rolfe  V.  Van   Sickle,  440. 
Romaine  v.  Hendrickson.  350,  450. 
Rose    V.    Clark,    707. 
Ross'  Case,  742. 
Ross  V.  Ross,  806. 
Roy  V.  Monroe,  350,  351. 
Roy  V.  Segrist,  68. 
Ruch  V.  Biery.  701. 
Runkle,  In  re,   174,   175.   176,   181. 
Runkle  v.  Gale,  95,  653. 
Runyon,  in  re  Estate  of,  264. 
Runyon  v.  Newark   India  Rubber 

Co..  450.  451,  454.  489.  498,  513- 
Rusling  v.  Rusling,  89,  90,  91,  107, 

118,  166.  171,  230,  340,  525. 
Russell's    Case    43.    45-    251.    254. 

74^- 
Rutherford  v.  Alyea,  326.  467,  468. 

546,  583,  634. 
Rutherford    Land    Co.    v.     Sann- 

trock.  437. 
Ryan  v.  Dodds,  436. 
Ryan   v.   Flanagan.   559.   563,   565. 

566,  567. 
Ryan  v.  Von  Arx.  529. 
Ryan  v.  Wilson.  511. 
Ryder,  In  re  Goods  of,  147. 
Ryder    v.    Wilson.    565.    566.    567, 

577- 
Ryerson,  In  re.  727.  728. 
Ryerson  v.  Ryerson.  413. 
Ryno  v.  Ryno.  56.  71,  73. 


St.    Mary's    Church    v.    Wallace. 

465- 
Salaun    v.    Hartshorne,    459,    460, 

463. 
Salisbury  v.  Colt.  392,  393,  398. 


Saltar  v.   Saltar.  527. 
Salter  v.  Ely,   154.   162. 
Salter  v.  Williamson.  631.  634. 
Sanders  v.  Blain.  413. 
Sanderson's  Case,  707. 


Table  of  Casks  Citkd. 


1  .^7* ) 


Sanderson  v.  Sanderson,  114.  149, 

152,  230,  2i3. 
Sandmann's  Will.   In  re.   134.   141. 

142. 
Satterthwaite's  Estate.  294.  298. 
Saunders,  In  re  Goods  of,  145. 
Sayre,    In    re   Will    of   James    R., 

Jr.,   75- 
Sayre  v.   Sayre,  90,  91.  260,  265. 

702,  717,  718,  719,  720,  721.  731. 
Sbarbero  v.  Miller,  119. 
Schanck  v.   Schanck.   600,  607. 
Scharer   v.   Schmidt,    191. 
Schenck  v.  Schenck,  208,  294.  295, 

418,  649. 
Schenck  v.  Vail,  708. 
Schick  V.  Grote,  346,  674. 
Schippers  v.  Kemphes.  346. 
Schlicher  v.  Keeler,  347. 
Schmitt  V.  Willis,  492. 
Schrafft  v.  \Volters,  338. 
Schuchhardt    v.    Schuchhardt.    94, 

150,  152,  161.  162,  230. 
Schulting  V.  Schulting.  553. 
Schwalber  v.  Ehman.  158. 
Schweitzer  v.  Bonn,  402,  655. 
Scott  V.  Carter,  216. 
Scott  V.  Gamble.  450,  451,  453.  455- 
Scudder  v.  Stout,  439. 
Scudder  v.  Trenton  Savings  Fund 

Society,  349. 
Scudder   v.   Vanarsdale,   350,   705. 

711. 
Seaman,  In  re,  160. 
Seaman  v.  Riggins,  510. 
Search    v.    Search,    48,    632,    634. 

648,  65s,  718. 
Sebring's  Will,  In  re,  234. 
Second  National  Bank  v.  Blauvelt, 

529.  530. 
Secor  V.  Sentis,  676. 
Seeger  v.  Seeger,  431,  434. 
Seymour  v.  Goodwin,  48,  538,  561, 

566,  567. 
Shailer  v.  Bumstead,  118,  160. 
Sharp's  Estate,  In  re,  370. 
Shaver  v.  Shaver,  249,  339. 


Shaw  V.  Berry,  41O. 
Shaw  V.  Camp,  174. 
Shearman    v.    Cameron.    48.    400. 

4-'6,  555,  634,  (36j. 
Shearer  v.  Weaver.  797. 
Shedaker's  Case,  93,  706. 
Shelton  v.  Homer,  414. 
Shepherd  v.  Hedden.  450.  454. 
Shepherd    v.    Newkirk,    316,    321, 

390. 
Sherman   v.    Lanier,   43,   382,   383, 

385,  400,  600,  667,  672. 
Sherrerd  v.  Trimmer.  633. 
Shotwell  v.  Dalrymple,  495. 
Shreve  v.  Joyce,  414,  416,  527. 
Shreve  v.  Shreve.  458.  545.  549. 
Shreve  v.  Wampole,  601. 
Sickles'    Case,    151.    157.    166.    178. 

181. 
Simons  v.  Forster,  537,  563. 
Simpson  v.  Bockius,  459,  467. 
Simpson  v.  Simpson,  702. 
Sinovcic   In   re   Estate   of   Wicko, 

79,  260,  261,  263,  266,  270. 
Sip  V.  Lawback,  509. 
Skellenger  v.  Skellenger,  710,  711. 
Skillman  v.  Lanehart,  93.  168,  233. 
Skillman    v.    Van    Pelt,    463.    484. 

516. 
Skillman  v.  Wiegand.  346. 
Skinner  v.  Wynne.  702. 
Slack  V.   Emery,  545. 
Slack  V.   Perrinc.  745.  746. 
Sloan   V.    Maxwell.    106.    107.    116. 

122.  123. 
Slocum   V.   Grandin,    197,    199. 
Small  V.  Small,  160. 
Smalley  v.  Smalley,  351,  433- 
Smith,  In  re  (n)0<is  of,  146. 
Smith.  Matter  of,  734. 
Smith,  Matter  of  Gna^(li;^n^ilip  <>f 

Ida   S..  749- 
Smith  V.  Abbott,  445,  5(m),  5<)<i. 
Smith  V.  Axttll,  612,  704. 
Smith  V.  IJayright,  ^S^- 
Smitii   V.   Burnet,  </j7. 
Smith   V.  Cumbs,  571.  574. 


i.^8o 


i'ROiiATt;   Law   and   Practice. 


Smith   V.   Corry,  68. 

Smith  V.  Crater,  564,  587.  SQL  597- 

Smith  V.  Drake,  450,  455. 

Smith  V.  First  Church,  350. 

Smith  V.  Gummere,  394,  398,  403. 

Smith   V.    Kearney,   339,   7i2,,   734- 

Smith  V.  McChesney,  183. 

Smith  V.  McDonald,  54,  92,  232, 
705,  706,  708. 

Smith  V.  Moore,  y2)7- 

Smith  V.  N.  Y.  Life  Ins.  Co.,  255. 

Smith  V.  Pettigrew,  420. 

Smith  V.  Rix,  68. 

Smith  V.  Robinson,  371,  386,  401, 
550,  642,  668,  670,  766. 

Smith  V.  Smith,  49,  89,  90,  100, 
107,  III,  116,  118,  120,  121,  169, 
195,  230,  478,  523,  524,  529,  552, 
609,  630,  646,  666,  702,  735. 

Smith  V.  Speer,  349. 

Smith  V.  Trenton  Delaware  Falls 
Co.,  343- 

Smith  V.  Whiting,  413. 

Smith    V.    Wilson,    546,    547,    559, 

569. 
Smock    V.    Smock,    178,    179,    184, 

185,  186. 
Snedekers  v.  Allen,  137. 
Snook  V.  Sutton,  760. 
Snover  v.  Prall,  769. 
Snowhill    V.    Snowhill,     183,    350, 

353.  356,  543,  765. 
Snyder  v.  Warbasse,  339. 
Spaeth,   In   re   Estate   of   Adolph, 

699. 
Sparks'  Case,  In  re,  158,  159,  162, 

163. 
Speer  v.  Speer,  703. 
Speer  v.  Whitfield,  533. 
Spinning  v.  Spinning,  554. 
Squier  v.  Squier,  691. 
Staats  V.  Bergen,  450,  451,  453. 
Stackhouse    v.    Horton,    in,    114, 

122,  123,  236. 
Standish  v.  Babcock,  573. 
Stark    V.    Hunton,    399,    403,    405, 

48s,  528,  638. 


State  V.  Baldwin,  799. 

State  V.  Conover,  482,  484,  488. 

State  V.  Mayhew,  396. 

State  V.  Ready,  172. 

State  Bank  v.  Marsh,  675. 

Stearns   v.   Wright,  254. 

Steele,  In  re,  557. 

Steele  v.  Queen,  56,  71. 

Steelman  v.  Wheaton,  288. 

Stein  V.  Huesmann,  675,  676,  677, 

678,  679. 
Stephens  v.  Milnor,  388,  402,  557. 
Sternkopf's  Case,  195. 
Stetson  V.  Bass,  68. 
Stevens  v.  Bowers,  338. 
Stevens  v.  Dewey,  722,,  724. 
Stevens  v.  Shippen,  187. 
Stevenson,  In  re  Elizabeth,  495. 
Stevenson   v.  Earl,   346,   347,  348. 
Stevenson  v.  Hart,  696. 
Stevenson  v.  Markley,  626. 
Stevenson  v.  Phillips,  648,  652,  653. 

655,   659- 
Stevenson   v.   Superior   Court,   68. 
Stewart,  In  re,  781. 
Stewart,  In  re  Goods  of,  146. 
Stewart's   Will,   135. 
Stewart  v.  Jordan,  150,  154. 
Stewart  v.  Stewart,  129,   130,  134. 

140,  143. 
Stiers  v.  Stiers,  482.  484,  487,  549. 
Stires  V.  Stires,  548. 
Stone  V.  Todd,  464,  524. 
Stoothoff  V.  Reed,  403. 
Storms  V.  Quackenbush,  419. 
Stout  V.  Cook,  806. 
Stoutenburgh     v.     Hopkins,     105, 

107,  109,  162,  699. 
Stoutenburgh  v.  Moore,  295,  297, 

443- 
Stover  V.  Kendall,  175. 
Straub's   Case,   42,   45,   46,   48,   56. 

58,  71,  73,  190,  610. 
Streeter  v.  Braman,  634. 
Strong  V.   Smith,  511. 
Stryker  v.  Vanderbilt,  515. 
Stuyvesant  v.  Hall,  415. 


Table  of  Cases  Cited. 


1381 


Sullivan  v.  Fosdick.  ^54. 
Sullivan   v.  Horner.  530.  531.  532. 
Sutherland  v.  Brush.  412. 
Sutton  V.  Morgan,  108,  22T. 
Suydam  v.  Bastedo.  631.  632.  649. 

661. 
Suydam    v.    Voorhees.    458,    533- 

541.  634. 


Swackhamer  v.  Kline.  78.  478,  501. 

502. 
Swain  v.  Edmunds.   140.   141.  202. 
Swain  v.  Smith,  "]!},. 
Sweet  v.  Sweet,  178. 
Swift  v.  Craighead,  450,  454,  435- 
Switzer  v.  Switzer.  552,  760. 


Taber  v.  Douglass,  797. 

Taggart.   Petition   of.   272. 

Tappan  v.  Dayton.  507. 

Tappen   v.    Davidson.    141- 

Taylor.    In    re.   676. 

Taylor  v.  Coriell,  346. 

Taylor  v.  Hanford.  472.  484- 

Taylor  v.  Kelly,  160. 

Taylor  v.  Volk.   587. 

Teague  v.  Corbitt.  410. 

Tehan  v.  Alaloy.  48.  632.  648.  649. 

650.  655. 
Tenbrook    v.    McColm.    742. 
Teneick   v.   Flagg,   354. 
Terhune  v.  Bray,  343. 
Terhune    v.    Oldis,    ^22,    323.    341, 

545.  648. 
Terhune   v.   White.   563.   565.   569. 
570. 

Terry  v.  Smith.  296. 

Thiefes   v.   Mason.    188.   291.   618. 

Thiele  v.  Thiele.  554- 

Thomas  v.  Thomas.   182,  482.  486, 

547.  549.  554- 
Thome's  Will.  Matter  of.  797- 
Thurston  v.  Gough,   199. 
Tichenor    v.    Tichenor,    364.    394. 

417,  441,  637,  638,  668,  669. 
Tinkham  v.  Smith,  733,  734- 
Tittlebaum  v.  Boehmcke,  769. 
Titus  V.  Hoagland,  525,  634. 
Todd  V.  Wortman,  350.  356. 


Toomy,  In  re  Goods  of,  146. 
Travelers'  Insurance  Co.  v.  Grant. 

535- 
Tremper  v.  Barton.  703. 
Trenton    Banking    Co.    v.    Wood- 

ruflf.  399.  450. 
Trenton    Trust    &    Safe    Deposit 

Co.  V.  Donnelly,  555- 
Trenton   Trust,   etc.,   Co.  v.  Fitz- 

gil)bin,  etc.,  Co.,  507. 
Tresch  v.  Wirtz,  525. 
Trimmer   v.   Adams.  94.  654,  658. 

659.  674- 
Trow  V.  Shannon,  272. 
Trower  v.  Cox,  68. 
Truitt  V.  Lawrence,  663. 
Trull  V.  Eastman.  735. 
Trumbull  v.  Gibbons.  114.  116.  120. 

156,  169. 
Tucker  v.  Baldwin,  435. 
Tucker    v.    Tucker,    91.    379.    380. 

385,  390.  552.  664.  687.  703- 
Tuite  v.  Tuite,  290. 
Tunison's  Will,  In  re,  150,  152. 
Tunison  v.  Tunison^  I55- 
Turner.  In  re  Anne.  743.  752. 
Turner  v.  Cheesman,  103,  114.  "6, 

118.  121.  122,  123,  149.  150.  173- 
Turnure  v.  Turnure.  120.  131,  1.I3. 

170. 
Tuttle's  Case,  392.  553.  554.  555- 
Tuttle  V.  Gilmore,  383.  3^4.  420. 


1382 


Probate   Law    and   PRACTicii. 


U 

Union  National  Bank  v.  Poulson,  United    States    v.    Eggleston,    531, 

587.  615.  533- 

United    Secnrity   Life   Ins.   Co.   v.  Updike  v.  Ten  Broeck.  523. 

Vandergrift,   539.  Updike  v.  Titus,  524. 


V.     Davenport, 

370, 

In   re,    118,    160, 

161, 

V.  Gaston.  742. 

V.    Everitt.    343. 

759, 

Vail  V.  Male.  614. 
Valentine  v.  Valentine,  685. 
Van  Alstyne  v.  Brown,  452. 
Van  Cortlandt  v.  Kip.  175. 
Van   Derheyden   v.   Van    Derhey- 

den,  376. 
Vanderpool 

625. 
Vanderveer, 

236. 
Vanderveere 
Van    Dor  en 

760. 
Van  Doren  v.  \'an  Doren,  398. 
Van  Dyke  v.  Chandler.  591. 
Van  Dyke  v.  Van  Dvke.  215,  ^yj, 

738. 
Van  Gieson  v.  Banta.  633. 
Van  Giessen  v.  Bridgford,  254. 
Van    Handlyn's   Will.    In    re,    132, 

143- 
Van  Horn,  In  re.  345,  745. 
Van  Horn  v.  Hann.  780. 
Van  Houten,  In  re,  741.  742,  743, 

745,  746.  755. 
Van  Houten  v.  Post.  672. 
V'an  Houten  v.  Stevenson.  650. 
Van  Houten  v.  Van  Houten,  689. 
Van  Kleek  v.  O'Hanlon,  48,  498. 
Van  Mater  v.  Sickler,  631.  634. 
Van  Matre  v.  Sankev.  806. 


Vanmeter  v.  Jones.  360,  633,  655. 
Vanness  v.  Jacobus,  351. 
Vanpelt  v.  Veghte,  364.  416.  637. 
\"an  Riper  v.  \'an  Riper.  116,  120, 

340. 
Van    Wickle    v.    \^an    W'ickle.   98. 

103,  187. 
Van  Winkle  v.  Schoonmaker.  105. 
Varick  v.  Smith,  432,  443. 
Varnon  v.  Varnon,  182. 
Varnum  v.  Camp.  535. 
Vaughn  v.   Sugg.  68. 
Veazey's  Will.  In  re.  188.  225. 
Veghte  V.  Steel,  321. 
Vernon    v.    Vernon.    99.    131,    133, 

143- 
Vincent  v.  Vincent.  42.  43,  72,  188. 
\"on  Arx  v.  Wemple.  585.  587. 
Von  Hurter  v.  Spengeman.  450. 
Voorhees'  Case.  53,  500. 
Voorhees  v.  Bailey,  453,  455. 
Voorhees  v.  Sharp.  709. 
Voorhees    v.    Stoothoff,    370.    387. 

392.  393.  394.  396,  398,  400.  675. 
Voorhees    v.    Voorhees,    339,    340, 

632,  648. 
Vreeland  v.  Ryno,  105. 
Vreeland    v.    Vreeland.    382,    385, 

403,  404.  478.  521.  525,  594,  639. 
Vrooman  v.  Virgil.  435. 


w 

Waddington    v.    Buzby,    106,    107,       Wallace's  Case,  265,  266. 

122,  151,  159,  166,  167. 
Wagner  v.  Sharp,  705. 
Wagstaff  V.  Lowerre,  678. 
Wakeman  v.  Hazleton,  403. 
Wakeman  v.  Paulmier,  567,  570. 
Waldron  v.  Davis,  545,  549. 
Waldron  v.  Layton,  75. 


Walling's   Case,  322,  332. 
Wain  V.  Bruere,  232. 
Walsh's  Estate,  In  re.  691,  693. 
Wambaugh  v.  Schenck,  195. 
Wanamaker  v.  Van  Buskirk.  702, 

704. 
Wanzer  v.  Eldridge,  400. 


Table  of  Cases  Cited. 


i.^!^3 


\\'arbass   v.   Armstrong.   675.   682, 

691,  693. 
Ward  V.  Dodd.  710.  711. 
Ward  V.  Kitchen,  387,  389. 
\\"ard  V.  Wilcox.  185.  186,  224. 
Ware  v.  Weatherby,  538. 
A\'arnum  v.  Camp,  255. 
Warwick  v.  Ely,  734. 
Warwick  v.  Hunt,  459,  516. 
Waters  v.  Stickney,  68,  69. 
Watson  V.  Kelty,  354. 
\\'atts  V.  Dull,  797. 
Weatherby  v.  Sparks,  538. 
Webb  V.  Jones,  187. 
\\'elib  V.  Rogers,  265.  292. 
Webster.  In  re,  323.  324.  326.  327, 

328.  3-^9- 
Weeks  v.   Selby,  682.  683. 
\\'eiland    v.    Townsend,    299.    300. 

443- 
Weimar  v.  Fath,  437,  442. 
Weir  V.  Mosher,  415. 
Weldon    v.    Keen,    606,    751,    752, 

753- 
Welsh  V.  Brown,  552.  668,  692. 
\\'elsh  V.  Crater,  350,  705. 
A\'emple  v.  Von  Arx,  587. 
Westbrook  v.  Eager,  342. 
Westcott  V.  Sheppard,  107.   150. 
Westervelt  v.  Ackerson,  718. 
Westervelt   v.   Voorhis,  459. 
Wetherill  v.  Hough,  353.  518.  765. 
Weyman    v.    Thompson,    48,    632, 

648,  649. 
Wheaton's  Case,  94,  120.   123. 
Wheedon  v.  Nichols.  527,  589,  590, 

594,  595. 
Wheeler  v.  Wheeler,  413.  416. 
Wheeler  v.  Whipple,   158,   163. 
Whitaker's  Case.  483,  489. 
White,  In  re,  178,  184.  185,  186. 
White  V.  Crossman.  348.  710. 
White   V.   vStarr.  90,  91,    ro7,    114. 

149,  151,  156,  163. 
Whitehead's  Estate,  In  re,  12,  56, 

71,  188,  192. 
Whitehead    v.    Gibbons,   355,    545. 

546.  548. 


Whitenack  v.  Stryker.  94.  103.  114. 

116,   117,  119.   122.   123.   135.   143. 

202,  224.  233. 
Wier  V.  Lum,  731. 
Wiggins  V.  Wiggins.  482. 
Wilcox's  Case,  250. 
Wild  V.  Davenport,  372.  373.  374. 
Wiley,    In   re.   376.   407.   408.    544, 

556,  598.  669. 
Wilkinson  v.  Abbott.  409.  682.  080. 
Wilkinson   v.  Roi)inson.  68. 
Wilkinson  v.  Trustees,  9,  48,  56. 
^\■illcox  V.  Smith,  376,  426. 
Willford's   Will.    In    re.    121.    152, 

158.  166,  170. 
Williams    v.    \\'iiliams.    379.    3ix>. 

394- 
Williamson  v.  Johnson,  450. 
Williamson  v.  Lippincott,  325. 
Williamson  v.  Updike,  308.  329. 
Willis  V.  Clymer,  670,  671. 
Willitt's  Estate,  In  re,  184. 
Wilmerding  v.  McKesson.  385. 
Wilson's  Case.  331.  766. 
Wilson  V.  Cobb,  397. 
Wilson  V.  Curtis.  147. 
Wilson  V.  Fisher.  737. 
Wilson  V.  Fritts.  187. 
Wilson  V.  Moran.  160. 
W'ilson    V.    Staats.    403.    531.    532. 

687.  691,  695. 
Windmuller    v.    Spirits    Distribut- 
ing Co..  396,  398. 
Winans  v.  Brookfield.  450. 
Winans  v.  Luppie,  798.  799. 
Winants  v.  Terhunc.  351.  352.  457, 

545- 
Winchell  v.  Sanger,  536. 
Wintermute,   In   re,    103.    114.    120, 

233,  235- 
Wisham  v.  Lippincott.  535. 
Wolf  V.  Bollinger,  182. 
Wolfe's  Case,  376.  408,  682.  683. 
Wolffe  V.  Loeb.  145. 
Wood  V.  Chetwnod,  j()H,  525.  O28, 

65s.  767. 
Wood  V.  Hopkins,  529. 
Wood  V.  I.embckc,  432. 


1384 


Probate   Law   and   Practice. 


Wood  V.  Tallman.  42.  43,  341. 
Wood  V.  Wood.  798,  799. 
Woodruff  V.  Lounsberry.  384^  385. 

677,  687. 
Woodruff  V.  Mutschler,  343. 
W'oodruff    V.    Snoover.    267.    283. 

751.  752. 
Woodruff  V.  Ward,  387,  390. 
Woods,  In  re  Goods  of,  146. 
Woodward,  Appeal  of,  797,  806. 
Woodward  v.  Lord  Darcy,  421. 
Woolley   V.    Pemberton,   268,    289, 

533- 
Woolsey's  Case,  534.  661. 


Woolsey  v.  Woolsey,  48,  661,  662, 

7-20,  ■/2,2. 
Wortman  v.  Skinner,  450,  453.  512, 

517. 
Wright  V.  Flynn,  92. 
Wright  V.  Hartshorne,  457. 
Wright  V.  Smith,  450. 
Wright  V.  Wright,  453- 
Wurts  V.  Page,  350,  351. 
Wyckoff  V.   O'Neil,  393,  406,  409. 

553.  675. 
Wvckoff  V.  O'Niel,  634.  720,  12^, 

738. 
Wyckoff'  V.  W'yckoft',  244,  246,  399. 


Yard  v.  Larison,  299. 
Yarnall's  Will,  239. 
Yauger  v.  Skinner.  119. 
Yeomans  v.  Petty,  526. 
Youmans  v.  Petty,  228,  230. 
Youmans    v.    Youmans.    339,    458. 
634- 


Young's  Case,  42,  78,  79.  199,  201, 

210,  223. 
Young   V.    Schelly,   417,    418.    624, 

626. 
Young  V.  Young,  82.  526,  570. 


Zabriskie  v.   M.  &  E.  R.   R.  Co., 
295- 


Zabriskie    v.    W'etmore.    48,    296, 

297.  443- 
Zelozoskei  v.  Mason,  152,  154,  163. 


TABLE  OF  SECTIONS  OF  ORPHANS'  COURT  ACT 

CITED. 


Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 
Sect 


on  I,  3  Comp.  Stat.,  3813.     32. 

on  2,  3  Comp.  Stat.,  3813.    42.  243.  363,  620. 

on  3.  3  Comp.  Stat.,  3814.    731. 

on  4,  3  Comp.  Stat.,  3815.    20. 

on  5,  3  Comp.  Stat.,  3815.    20. 

on  6,  3  Comp.  Stat.,  3815.     19. 

on  7,  3  Comp.  Stat.,  3815.    3(3. 

on  8.  3  Comp.  Stat.,  3815.    36. 

on  9,  3  Comp.  Stat.,  3815,  as  amended.    36. 

on  9a,  3  Comp.  Stat.,  3815.    37,  666. 

on  9b,  3  Comp.  Stat.,  3816.    37,  666. 

on  9c,  3  Comp.  Stat.,  3816.    37,  666. 

on  10,  3  Comp.  Stat.,  3816.    38. 

on  II,  3  Comp.  Stat.,  3816.    38. 

on  12,  3  Comp.  Stat.,  3816.    38. 

on  13,  3  Comp.  Stat.,  3816.     196,  200,  202. 

on  14,  3  Comp.  Stat.,  3817.    56,  201. 

on  15,  3  Comp.  Stat.,  3817.     13,  201. 

on  16,  3  Comp.  Stat.,  3818,  as  amended  by  P.  h.  1913,  p.  102.    203. 

on  18,  3  Comp.  Stat.,  3818.    227,  228,  229. 

on  19,  3  Comp.  Stat.,  3819.    227,  229. 

on  20,  3  Comp.  Stat.,  3819.    4. 

on  21,  3  Comp.  Stat.,  3819.    221. 

on  22,  3  Comp.  Stat.,  3819,  as  amended.    226. 

on  23,  3  Comp.  Stat.,  3820.    212,  363,  444. 

on  24,  3  Comp.  Stat.,  3821,  as  amended  by  P.  L.  1915,  p.  005.     21J, 
214,  216,  445. 
Section  25,  3  Comp.  Stat.,  3821.    216,  217. 
Section  26,  3  Comp.  Stat.,  3822.    252,  253.  291. 
Section  27,  3  Comp.  Stat.,  3822,  as  amended  by  P.  I,.  1914,  p.  69,  Sec.  i. 

189,  262,  264,  270. 
Section  28,  3  Comp.  Stat.,  3823.    260. 
Section  29,  3  Comp.  Stat.,  3^23.    251,  253. 
Section  30,  3  Comp.  Stat.,  3823,  as  amended  1)v  P.  I,.  191 1.  j).  ^39.  Sec.  i. 

280. 
Section  31,  3  Comp.  Stat.,  3824.    281. 
Section  32,  3  Comp.  Stat.,  3824.    282. 
Section  34,  3  Comp.  Stat.,  3825.    275. 
Section  36,  3  Comp.  Stat.,  3825.    45,  741. 
Section  37,  3  Comp.  Stat.,  3826.    747,  748,  749.  750.  7S^.  755- 
Section  38,  3  Comp.  Stat.,  3826.    747. 
Section  39,  3  Comp.  Stat.,  3826.    756. 
Section  40,  3  Comp.  Stat.,  3827.    741,  754,  762. 
Section  41,  3  Comp.  Stat.,  3827.    748. 
Section  42,  3  Comp.  Stat.,  3827.    754. 
Section  43,  3  Comp.  Stat.,  3827.    757. 
Section  46,  3  Comp.  Stat.,  3828.    306,  307.  308.  309. 
Section  47,  3  Comp.  Stat.,  3829.    283,  310. 

T3«5 


1386 


Probatk   Law   and   Practice. 


Section 
Section 
Section 
Section 
Section 

320. 
Section 
Section 

320. 
Section 
Section 

320. 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
vSection 
Section 
Section 
vSection 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
vSection 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 


57 
58 

59: 

60 
61 
62 
63 
64 
65 

66, 
67 
68 
69 
70 
71 
72 
7i 
74 
75 
76 
77 
78 
79 
80, 
81 
82 

83 

83a 

84. 

85 

86 

87 

88 

88a, 

89. 

90 

91 
92 

93 
94 
95 
96. 
97 
97a. 


99 


3  Comp.  Stat.,  3829.    308. 

3  Comp.  Stat.,  3829.    315,  316,  317. 

3  Comp.  Stat.,  3829.    315,  746,  747. 

3  Comp.  Stat.,  3829.    206,  311. 

3  Comp.  Stat.,  3829,  as  amended  by  P.  L.  1915,  p.  40. 


319, 


3  Comp.  Stat.,  3830.    319. 

3  Comp.  Stat.,  3830,  as  amended  by  P.  L.  1915,  p.  40.     319, 

3  Comp.  Stat.,  3830.    320. 

3  Comp.  Stat.,  3830,  as  amended  by  P.  L.  1915.  p.  40.     31-9, 


3  Comp.  Stat., 

3  Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  vStat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat.. 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

Comp.  Stat., 

3  Comp.  Stat.. 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat 

3  Comp.  Stat., 

a,  3  Comp.  Stat. 

3  Comp.  Stat., 

100,  3  Comp.  Stat. 

Id,  3  Comp.  Stat. 


3830. 

3830. 

3831. 

3831. 

3831. 

3832. 

3832. 

3832. 

3832. 

3833. 

3833- 

3834. 

3834. 

3835. 

3835- 

3836. 

3836. 

3836. 

3837. 

3837. 

3836. 

3837. 

3838. 

3838. 

3838. 

3840. 

3841. 

.  3842. 

3842. 

3842. 

3843- 

3843. 

3843. 

,  3843 

3844- 

3844- 

3844. 

3845. 

3845. 

3845- 

3846. 

3847. 
3847. 
.  3847 
3848. 


360. 

360,  362,  363,  604. 
361. 

366,  368. 
366. 

361.  368. 
365.  604. 
365.  695- 
528,  539- 
529. 

559.  585. 
560. 

563. 

565.  577. 
536. 
578.  736. 

578.  736. 

579.  736. 
566. 

624,  736. 
579. 

as  amended  by  P.  L.  1912,  p.  276.    581. 
580. 

582.  663. 
459- 

470,  474- 
477.  479- 
473,  478,  483,  540. 


3848. 
.  3848. 
.  3850. 


480,  481. 

509. 

480,  481,  597. 

500. 

501. 

501. 
475.  483- 
476. 

502,  503. 
480.  481. 

513,  514,  597. 

514.  515- 
489.  517,  519. 

519. 
472. 

490. 
504. 

495. 
584. 

584,  585.  586,  587. 


Table  of  Skctioxs  of  Oki'iians'  Coukt  Act  Cited.     1387 

Section  102,  3  Comp.  Stat.,  3850.    593. 

Section  103.  3  Comp.  Stat.,  3850.    593. 

Section  104,  3  Comp.  Stat.,  3850.    593,  594,  595. 

Section  105,  3  Comp.  Stat..  3850.    595. 

Section  106.  3  Comp.  Stat..  3851.    586. 

Section  107.  3  Comp.  Stat.,  3851.    596. 

Section  108,  3  Comp.  Stat.,  3851.    597. 

Section  109.  3  Comp.  Stat.,  3851.    585. 

Section  no,  3  Comp.  Stat.,  3852.    598. 

Section  in,  3  Comp.  Stat.,  3852.    599. 

Section  112.  3  Comp.  Stat.,  3852.    589,  591. 

Section  113,  3  Comp.  Stat.,  3852.    597. 

Section  114,  3  Comp.  Stat.,  3852.    605,  616,  622,  626. 

Section  115,  3  Comp.  Stat.,  3853.    616,  622.  641. 

Section  116,  3  Comp.  Stat.,  3853,  as  amended.    622,  625.  626.  629. 

Section  117,  3  Comp.  Stat.,  3854,  as  amended.    623.  630,  631,  695. 

Section  118.  3  Comp.  Stat.,  3854.    618.  625. 

Section  119.  3  Comp.  Stat.,  3855.  619,  627. 

Section  120.  3  Comp.  Stat..  3855.    363,  620,  627. 

Section  121,  3  Comp.  Stat.,  3855,  as  amended.    642. 

Section  122.  3  Comp.  Stat.,  3855,  as  amended  by  P.  1,.  1915,  j).  715.    O45, 

646.  647. 
Section  123,  3  Comp.  Stat.,  3856,  as  amended.    645. 

Section  124.  3  Comp.  Stat.,  3856,  as  amended.   641.  645,  649,  650,  651,  656. 
Section  125,  3  Comp.  Stat..  3856,  as  amended.    643,  647,  650.  651.  670. 
Section  126,  3  Comp.  Stat.,  3857.  as  amended.    37,  650,  651.  660.  666. 
Section  127,  3  Comp.  Stat.,  3857.    64;*,  652.  655. 
Section  127a,  3  Comp.  Stat.,  3859.    726. 
Section  127b,  3  Comp.  Stat.,  3859.    617. 
Section  128,  3  Comp.  Stat.,  3859.    681. 

Section  129,  3  Comp.  Stat.,  3860.    676,  677,  679,  680,  681,  683. 
Section  130,  3  Comp.  Stat.,  3860,  as  amended,    687. 
Section  131,  3  Comp.  Stat..  3861.    681. 
Section  132.  3  Comp.  Stat.,  3861.    676. 
Section  133,  3  Comp.  Stat.,  3861.    689,  690. 
Section  134.  3  Comp.  Stat.,  3861.    695. 
Section  135,  3  Comp.  Stat.,  3862.    296,  299. 
Section  136,  3  Comp.  Slat.,  3863.    390,  392,  396. 
Section  137,  3  Comp.  Stat.,  3864,  as  amended.    379,  390. 
Section  138.  3  Comp.  Stat.,  3865.    422. 
Section  139,  3  Comp.  Stat.,  3865.    357. 
Section  139a,  3  Comp.  Stat.,  3866.    44,  359. 
Section  140,  3  Comp.  Stat.,  3866.    207,  312. 
Section  141,  3  Comp.  Stat.,  3866.    321. 
Section  142.  3  Comp.  Stat.,  3866.    268,  317,  318. 
Section  143,  3  Comp.  Stat..  3867.    :i33,  625. 
Section  144,  3  Comp.  Stat.,  3867.    334. 
Section  145,  3  Comp.  Stat.,  38^)7.    335. 
Section  146,  3  Comp.  Stat.,  386K.    613. 
Section  147,  3  Comp.  Stat..  38^)8.    613. 
Section  148,  3  Comp.  Stat.,  3868.    614. 
Section  149,  3  Comp.' Stat.,  3868.    363,  600,  601. 
Section  150,  3  Comp.  Stat.,  3869.    605,  606. 
Section  151,  3  Comp.  Stat.,  3869.    298,  611. 
Section  152,  3  Comp.  Stat.,  3870.    608,  (^k).  619. 
Section  153,  3  Comp.  Stat.,  3870.    609,  612. 
Section  154.  3  Comp.  Stat.,  3870.  as' amended.    428. 
Section  155,  3  Comp,  Stat.,  3871,  as  amended  by  P.  L.  IQ15.  p.  41.    42<). 
Section  155a,  3  Comp.  Stat..  3871-    4.3f>- 
Section  156,  3  Comp.  Stat.,  3872.    58,  221. 


1388 


Probate  Law  and  Practice. 


Section  157,  3  Comp.  Stat.,  3872. 
Section  158,  3  Comp.  Stat.,  3872. 
Section  159,  3  Comp.  Stat.,  3872. 
Section  160,  3  Comp.  Stat.,  3872. 
Section  161,  3  Comp.  Stat.,  3873. 
Section  162,  3  Comp.  Stat.,  3873. 
Section  163,  3  Comp.  Stat.,  3873. 
Section  164,  3  Comp.  Stat.,  3873. 
Section  165,  3  Comp.  Stat.,  3873. 
Section  166,  3  Comp.  Stat.,  3873. 
Section  167,  3  Comp.  Stat.,  3873. 
Section  168,  3  Comp.  Stat.,  3874, 

705,  717.  721,  724. 
Section  169,  3  Comp.  Stat.,  3874, 

698,  699,  700,  704,  705,  706,  707, 
Section  170,  3  Comp.  Stat.,  3877, 
Section  171,  3  Comp.  Stat.,  3877. 
Section  172,  3  Comp.  Stat..  3877. 
Section  173,  3  Comp.  Stat.,  3877, 

725. 
Section  174,  3  Comp.  Stat.,  3878. 
Section  175,  3  Comp.  Stat.,  3878. 
Section  176,  3  Comp.  Stat.,  3878. 
Section  177,  3  Comp.  Stat.,  3879. 
Section  178,  3  Comp.  Stat.,  3879. 
Section  179,  3  Comp.  Stat.,  3879. 
Section  179a,  3  Comp.  Stat..  3879 
Section  180,  3  Comp.  Stat.,  3880. 
Section  181,  3  Comp.  Stat.,  3880, 
Section  182.  3  Comp.  Stat.,  3880. 
Section  183,  3  Comp.  Stat.,  3880. 
Section  184,  3  Comp.  Stat..  3880. 
Section  185,  3  Comp.  Stat.,  3880. 
Section  186,  3  Comp.  Stat..  3881. 
Section  i86a,  3  Comp.  Stat..  3881 
Section  186b,  3  Comp.  Stat.,  3881 
Section  i86c,  3  Comp.  Stat.,  3881, 
Section  i86d,  3  Comp.  Stat.,  3881 
vSection  i86e,  3  Comp.  Stat.,  3881, 
Section  i86f,  3  Comp.  Stat..  3881. 
Section  187,  3  Comp.  Stat.,  3 
Section  188,  3  Comp.  Stat.,  3882 
Section  189,  3  Comp.  Stat.,  3883 
Section  190,  3  Comp.  Stat..  3883 
Section  191,  3  Comp.  Stat.,  3883 
Section  191a,  3  Comp.  Stat.,  3883 
Section  191b,  3  Comp.  Stat.,  3883 
Section  191c,  3  Comp.  Stat.,  3883. 
Section  192,  3  Comp.  Stat.,  3883 
Section  193,  3  Comp.  Stat.,  3884 
Section  194,  3  Comp.  Stat.,  3884 
Section  195,  3  Comp.  Stat.,  3884 
Section  196,  3  Comp.  Stat.,  3884 
Section  197,  3  Comp.  Stat.,  3885 
Section  198.  3  Comp.  Stat.,  3885 
Section  199,  3  Comp.  Stat.,  3885 
Section  200,  3  Comp.  Stat.,  3885 
Section  200a,  3  Comp.  Stat.,  3887, 
Section  201,  3  Comp.  Stat.,  3888 
Section  202,  3  Comp.  Stat.,  3888 
Section  203,  3  Comp.  Stat.,  3888 
Section  204,  3  Comp.  Stat.,  3889 


57,  59- 
57,  59,  219. 
57.  62. 
57.  59- 
60. 

57,  60. 
716. 
61. 
60. 
60. 
62. 
as  amended  by  P.  L.  1914,  p.  69,  Sec.  2. 

as  amended  by  P.  L.  1914,  p.  69,  vSec.  3. 

708,  709,  712. 

as  amended  by  P.  L.  1915,  p.  246.    251. 

698. 

714. 
as  amended  l)y  P.  L.  1915,  p.  343.    722, 

39.  243- 
40. 

40.  223. 

41.  223. 
41. 
39,  312,  606,  658. 

•  '39. 
47- 

45.  47- 
47.  227. 

49,  223,  363.  365.  630. 

50.  721. 
50. 
49- 

•  51. 

•  51. 

•  52. 

■  52. 

•  52. 
.    52. 

326,  327. 

336. 

336. 

336. 

336. 

■  329- 
.    329. 

330. 
721,  730. 
730. 
3- 
53- 

53.  54- 

53,  231,  232,  234. 
62. 
62. 
7.  65. 

as  amended  by  P.  L.  1914,  p.  215.    66. 
74.  78.  254,  758. 
74.  78. 
78. 
80,  696. 


TABLE  OF  STATUTES  CITED. 


P.  L.  1891,  p. 
P.  L.  1893.  p. 
2  Gen.  Stat., 
P.  L.  1900,  p. 
I  Comp.  Stat 

1  Comp.  Stat 

2  Comp.  Stat 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat. 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 
2  Comp.  Stat 


•251- 


24.    512. 
268.    589. 

1435.  section  38.  487. 
72.  section  i.  85. 
.,  433,  section  63.  460. 
.,  446.  section  93. 
.,  171 1,  section  21. 
,  171 1,  section  22. 
,,  1720,  section  67. 
.,  1722.  section  76. 
.,  1722,  section  "/"]. 
,  1723,  section  80. 
.,  1723.  section  81. 
,  1723,  section  82. 
,  1723,  section  83. 
,  1724,  section  84. 
.  1724,  section  85. 
,  1724,  section  86. 
,  1724,  section  89. 

1724,  section  90. 
,  1726.  section  97. 
,,  1726,  section  98. 
.,  1727,  section  99. 
,,  1727,  section  100. 
.,  1727.  section  loi. 
,  1730,  section  108. 
,.  1730,  section  109. 
,  1730,  section  no. 
.,  1730,  section  in. 
.  1793.  section  161. 
,  1904,  section  i. 
.  1908.  section  8. 
.,  2045.  section  2. 
.,  2216.    58. 
,  2218,  section  4. 

,  2235,  section  47,  as  amended  l)y  P.  I.,  nj'.v  !'■  U'- 
„  2258.  section  i.    200,  372. 
.,  2259,  section  2a. 
.,  2259,  section  2b. 
,  2259,  section  2c. 
.  2260,  section  2d. 
,  2260,  section  2e. 
,  2260,  section  3. 
..  2261,  section  6. 

2261,  section  8. 

2261,  section  10. 
,  2262,  section  12. 
,  2262,  section  I3- 
,.  2263,  section  14. 


469. 
38. 
i^. 
228 
12. 
13- 
3- 
4 
4 
4 
3 


.-) 
6 
33- 

33- 
34- 
36. 
36. 
34. 
35- 
35- 
190. 

195- 
262. 

554- 


^ 


225.  667. 


275,  618.  619,  625. 

276,  618,  619.  625. 

277,  618.  619.  625. 
276,  618.  619,  625. 
275,  618,  619.  625. 

290. 

399- 
208.  341. 

437- 
446. 
442. 
44''>.  447- 


T.^«0 


I390 


Pkohatic  Law  and  Practice. 


2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 

788. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 
2  Comp. 


Stat.,  2264,  section  15.    448. 

Stat.,  2264,  section  17.    352,  425. 

Stat.,  2265,  section  19.    257,  521. 

Stat.,  2265,  section  20.    257. 

Stat.,  2265,  section  21.    257. 

Stat.,  2266,  section  23.    450. 

Stat.,  2266,  section  24.    344. 

Stat.,  2267.  section  25.    448. 

Stat.,  2267.  section  26.    430. 

Stat.,  2267.  section  2^.    430. 

Stat.,  2267,  section  28.    391. 

Stat.,  2271,  section  34.    380. 

Stat.,  2271,  section  36.    380. 

Stat.,  2.2T2,  section  y].    379. 

Stat.,  22^2,  section  38.    713. 

Stat.,  2272,  section  39.    713. 

Stat.,  2272,  section  40.    714. 

Stat.,  2273.  section  41.    449. 

Stat..  2627,  section  i.    743.  744. 

Stat.,  2627,  section  2.  745. 

Stat.,  2628,  section  3.    762. 

Stat.,  2628,  section  4.    763. 

Stat.,  2628.  section  5.    765. 

Stat.,  2629.  section  sd.    770. 

Stat.,  2629,  section  6.    791. 

Stat.,  2630.  section  7.    792. 

Stat.,  2630.  section  8.    792. 

Stat.,  2633,  section  19.    782. 

Stat.,  2637,  section  Z2>-    761. 

Stat.,  2637,  section  35.    761. 

Stat.,  2739,  section  i.    462. 

Stat.,  2740,  section  2.    462. 

Stat.,  2741,  section  3.    466. 

Stat.,  2742,  section  4.    462. 

Stat..  2781,  section  i.    TJZ-  774-  781,  782. 

Stat.,  2783,  section  2.    776. 

Stat.,  2784.  section  3.    776. 

Stat.,  2785,  section  3e.    774. 

Stat.,  2785,  section  3f.    774. 

Stat.,  2786,  section  3h.    775. 

Stat.,  2787,  section  4,  as  amended  by  P.  L.  191 1,  p.  70.    782.  786, 

Stat.,  2788,  section  5.    788. 

Stat.,  2788,  section  6.  789. 

Stat.,  2789.  section  14,  as  amended  by  P.  L.  1914.  p.  551.    790. 

Stat.,  2790,  section  14a.    792. 

Stat.,  2790,  section  14b.    793. 

Stat..  2791,  section  I4d.    793. 

Stat.,  2791,  section  I4e.    793. 

Stat.,  2791,  section  I4f.    793. 

Stat..  2791,  section  I4h.    793. 

Stat.,  2792.  section  14J.    793. 

Stat.,  2792,  section  14I.    782,  793. 

Stat.,  2792,  section  14m.    793. 

Stat.,  2793,  section  15.    779. 

Stat.,  2793,  section  16.    779. 

Stat.,  2793,  section  17.    780. 

Stat.,  2793,  section  18.    783. 

Stat..  2793.  section  19.    783,  784. 


Table  of  Statutes  Cited. 


1391 


2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat., 
2  Comp.  Stat..  _ 
2  Comp.  Stat.,  2 
2  Comp.  Stat., 

804,  805. 
2  Comp.  Stat., 

2  Comp.  Stat., 

3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Com]).  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 

214,  216.  445. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 

I.  189.  262, 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 

I.  280. 

3  Comp.  Stat.,  3824,  section  31.    28 r. 
3  Comp.  Stat.,  3824,  section  -^2.    282. 
89 


2797.  section  25.    785. 

2797,  section  26.    786. 

2798,  section  27.    786. 

2798,  section  28.    7S5. 

2798,  section  30.    787. 

2798,  section  33.    786. 

2807,  section  13.    797,  798,  800. 

2807,  section  14.    801. 

2808,  section  15.    802,  803,  805. 

.  2808.  section   16,  as  amended  by  I'. 

I,.  1912.  p.  53.     8 

^3 

2809.  section  17.    806. 

2852,  section  46.    318. 

3089,  section  5.    731. 

3089,  section  8.    727. 

3090,  section  9.    727. 

3167,  section  9.    528. 

3223,  section  i.    344. 

3226,  section  5.    318. 

3235,  section  9.    105. 

3420,  section  47.    538. 

3421,  section  48.    548,  564. 

3813.  section  i.    2>^. 

3813.  section  2.    42,  243,  'i^^},.  620. 

3814.  section  3.    731. 

3815,  section  4.    20. 

3815,  section  5.    20. 

3815,  section  6.     19. 

3815,  section  7.    36. 

3815,  section  8.    36. 

3815,  section  9,  as  amended.    36. 

3815,  section  9a.    n,  666. 

3816,  section  9I).    yj,  666. 

3816,  section  9c.    2,7 •  666. 

3816.  section  10.    },K 

3816,  section  11.    38. 

3816,  section  12.    38. 

3816.  section  13.     196,  200,  202. 

3817,  section  14,  56,  201. 

3817.  section  15.     13,  201. 

3818,  section  16,  as  amended  liy  P.  \. 

19 r3.  p.  102.    203. 

3818,  section  18.    227,  228,  229. 

3819,  section  19.    227,  229. 

3819,  section  20.    4. 

3819,  section  21.    221. 

3819,  section  22,  as  amended.    226. 

3820,  section  23.    212,  363.  444. 

3821,  section  24,  as  amended  by  1'. 

f,.    IQI?.   p.   605.      21 

0 

3821,  section  25.  2  0,  217. 

3822,  section  26.  252,  253.  291. 

3822,  section  2"],  as  amended  l)y  V.  I,.  1014,  p.  6<>,  section 
264,  270. 

3823,  section  28.  260. 
3823.  section  29.  251,  253. 
3823,  section  30,  as  amended  hy  I'.  I.,  ion,  p.  53r).  section 


^393 


Proiute  Law  and  Practice. 


3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat., 

3  Comp.  Stat. 

3  Comp.  Stat.. 

3  Comp.  Stat. 

3  Comp.  Stat. 

3  Comp.  Stat 

3  Comp.  Stat. 

3  Comp.  Stat. 

3  Comp.  Stat. 

3  Comp.  Stat 

3  Comp.  Stat 

3  Comp.  Stat 

3  Comp.  Stat. 

3  Comp.  Stat 

3  Comp.  Stat 

3  Comp.  Stat 

3  Comp.  vStat 

3  Comp.  Stat 

3  Comp.  Stat 

3  Comp.  vStat 


3825,  sect 

3825,  sect 

3826,  sect 
3826,  sect 

3826,  sect 

3827,  sect 
3827,  sect 
3827,  sect 

3827,  sect 

3828,  sect 

3829,  sect 
3829,  sect 
3829,  sect 
3829,  sect 
3829,  sect 

3829,  sect 

3830.  sect 
3830,  sect 
3830,  sect 
3830,  sect 
3830,  sect 

3830,  sect 

3831,  sect 
3831,  sect 

3831,  sect 

3832,  sect 
3832,  sect 
3832,  sect 

3832.  sect 

3833.  sect 

3833,  sect 

3834,  sect 

3834,  sect 

3835.  sect 

3835,  sect 

3836,  sect 
3836,  sect 

3836,  sect 

3837,  sect 
3837.  sect 

3836,  sect 

3837,  sect 

3838,  sect 
3838,  sect 

,  3838,  sect 
,  3840,  sect 
.,  3841,  sect 
„  3842,  sect 
,  3842,  sect 
,  3842,  sect 
.,  3843.  sect 
.,  3843.  sect 
,,  3843.  sect 
.,  3843,  sect 
.,  3844,  sect 
.,  3844.  sect 
.,  3844,  sect 
.,  3845,  sect 
.,  3845,  sect 


on  34. 
on  36. 
on  ZT. 
on  38. 
on  39. 
on  40. 
on  41. 
on  42. 
on  43. 
on  46. 
on  47. 
on  48. 
on  49. 
on  50. 
on  51. 


275- 

45.  741- 

747,  748,  749,  750,  753,  755. 

747- 

756. 

741,  754.  762. 

748. 

754- 

757- 

306,  307.  308,  309. 

283,  310. 


315,  316,  317. 

315,  746,  747. 

206,  311. 
on  52,  as  amended  by  P.  L.  1915,  p.  40.  319,  320. 
on  53.  319. 

on  54,  as  amended  by  P.  L.  1915,  p.  40.  319,  320. 
on  55.  320. 

on  56,  as  amended  by  P.  L.  1915,  p.  40.  319.  320. 
on  57.  360. 

on  58.  360,  362,  363,  604. 
on  59.  361. 
on  60.  366,  368. 
on  61.  366. 
on  62.  361,  368. 
on  63.  365,  604. 
on  64.  365,  695. 
on  65.  528,  539- 
on  66.  529. 
on  67.  559,  585. 
on  68.  560. 
on  69.  563. 
on  70.  565,  577. 
on  71.  536. 
on  72.    578.  736. 
on  -72,.    578  736. 
on  74.  579.  736. 
on  75.  566. 
on  76.  624,  -JZ^^- 
on  ']'7.    579. 

on  78,  as  amended  by  P.  L.  1912,  p.  276.  581. 
on  79.  580. 
on  80.  582,  663. 
on  81.  459. 
on  82.  470,  474. 
on  83,  477,  479. 
on  83a.  473,  478,  483.  540. 
on  84.  480,  481. 
on  85.  509.  . 
on  86.  480,  481.  597. 
on  87.  500. 
on  88.  501. 
on  88a.  501. 
on  89.  475.  483- 
on  90.  476. 
on  91.  502.  503. 
on  92.  480,  481. 
on  93-  513,  514,  597- 


Table  of  Statutes  Cited. 


1393 


3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
'3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 

646,  647. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Comp.  Stat.. 
3  Crtmp.  Stat., 
3  Comp.  Stat.. 
3  Cc)mp.  Stat.. 
3  Comp.  vStat.. 
3  Comp.  Stat., 
3  Comp.  Stat.. 
3  Comp.  sStat.. 
3  Comp.  Stat., 


3845 
3846. 

3847 
3847 
3847 
3848 
3848 
3848 
3848 
3850, 
3850, 
3850 
3850, 
3850 
3851 
3851 
3851 
3851 
3852, 
3852 
3852 
3852 
3852 
3853 
3853 
3854 
3854 
3855 
3855 
3855 
3855 

3856, 
3856 
3856 
3857 
3857 
3859 
3859 
3859. 
3860 
3860, 
3861 
3861 
3861 
3861 
3862 
3863 
3864 
3865 
3865 
3866 
3866 
3866 
3866 
3867 
3867 
3867 


section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 

section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
section 
secti'^in 
section 
section 
section 
section 
section 
section 
section 
section 


94- 

95- 

96. 

97- 

97a. 

98. 

98a. 

99. 
100. 

lOI. 

102. 
103. 
104. 
105. 
106. 
107. 
108. 
109. 
no. 
III. 

112. 

113- 

114. 

115- 
116, 

117. 
118. 
119. 
120. 
121, 
122, 


514.  515. 
489.  517.  519- 
519. 
472. 

490. 
504. 

495 
584. 


585,  586,  587. 


594.  595- 


506 

593 

593 

593 

595 

586 

596 

597 

585 

598 

599 

589 

597 

605,  616,  622,  626. 

616,  622.  641. 

as  amended.    622.  625,  626,  629. 
as  amended.    623,  630,  631.  69^. 

618,  625. 

619,  627. 
363,  620,  627. 

as  amended.    642. 
as  amended  by  P 


591- 


L.  191 5,  p.  715.    645, 


123,  as  amended.    645. 

124,  as  amended. 

125,  as  amended. 

126,  as  amended. 

127.  647.  652,  655 
127a.    726. 
127b.    617. 

128.  681. 

129.  676,  677.  679,  680,  681.  6S;? 

130.  as  amended. 


131. 
132. 
133- 
134- 
135- 
136. 


681. 
676. 
689,  690. 

695- 

296.  299. 
390,  392,  396. 

137,  as  amended. 

138.  422. 
357- 

44.  359. 
207,  312. 

.321. 

268.  317.  318. 

^3^<  625. 

334- 

.335. 

6i.^ 


641.  645.  649,  630,  651,  636. 
643,  647,  630,  651.  670. 
37.  650.  631,  660,  666. 


687. 


379.  390- 


139- 

139a 

140. 

141. 

142. 

143- 

'44- 

145- 

146. 


^394  Probate  Law  and  Practice. 

3  Comp.  Stat.,  3868,  section  147.  613. 

3  Comp.  Stat.,  3868,  section  148.  614. 

3  Comp.  Stat.,  3868.  section  149.  363,  600.  601. 

3  Comp.  Stat.,  3869,  section  150.  605,  606. 

3  Comp.  Stat..  3869.  section  151.  298.  611. 

3  Comp.  Stat.,  3870.  section  152.  608,  609,  619. 

3  Comp.  Stat..  3870.  section  153.  609.  612. 

3  Comp.  Stat..  3870,  section  154.  as  amended.    428. 

3  Comp.  Stat..  3871,  section  155,  as  amended  by  P.  L.  1915,  p.  41.    429. 

3  Comp.  Stat.,  3871,  section  155a.    430. 

3  Comp.  Stat.,  3872,  section  156.  58,  221. 

3  Comp.  Stat.,  3872.  section  157.  57,  59- 

3  Comp.  Stat..  3872,  section  158.  57,  59,  219. 

3  Comp.  Stat.,  3872,  section  159.  57,  62. 

3  Comp.  Stat..  3872,  section  160.  57,  59. 

3  Comp.  Stat..  3873,  section  161.  60. 

3  Comp.  Stat..  3873.  section  162.  57.  60. 

3  Comp.  Stat.,  3873.  section  163.  716. 

3  Comp.  Stat.,  3873,  section  164.  61. 

3  Comp.  Stat.,  3873.  section  165.  60. 

3  Comp.  Stat.,  3873,  section  166.  60. 

3  Comp.  Stat.,  3873.  section  167.  62. 

3  Comp.  Stat.,  3874,  section  168,  as  amended  by  P.  L.  1914.  P-  69.  section 

2.  705.  717.  721.  724. 

3  Comp.  Stat..  3874,  section  169.  as  amended  by  P.  L.  1914.  p.  69.  section 

3.  698,  699,  700.  704,  705.  706,  707,  708,  709.  712. 

3  Comp.  Stat.,  3877.  section  170,  as  amended  by  P.  L.  1915.  p.  246.    251. 

3  Comp.  Stat.,  3877,  section  171.    698. 

3  Comp.  Stat.,  3877,  section  172.    714. 

3  Comp.  Stat.,  3877.  section  173,  as  amended  by  P.  L.  1915,  p.  343.      I22. 

725. 
3  Comp.  Stat.,  3878.  section  174. 
3  Comp.  Stat..  3878.  section  175. 
3  Comp.  Stat..  3878.  section  176. 
3  Comp.  Stat..  3879,  section  177. 
3  Comp.  Stat..  3879.  section  178. 
3  Comp.  Stat..  3879.  section  179. 
3  Comp.  Stat..  3879,  section  179a. 
3  Comp.  Stat..  3880,  section  180. 
3  Comp.  Stat..  3880,  section  181. 
3  Comp.  Stat.,  3880,  section  182. 
3  Comp.  Stat.,  3880,  section  183. 
3  Comp.  Stat.,  3880,  section  184. 
3  Comp.  Stat.,  3880.  section  185. 
3  Comp.  Stat.,  3881.  section  186. 
3  Comp.  Stat..  3881.  section  i86a. 
3  Comp.  Stat..  3881,  section  i86b. 
3  Comp.  Stat.,  3881,  section  i86c. 
3  Comp.  Stat..  3881.  section  i86d. 
3  Comp.  Stat..  3881.  section  i86e. 
3  Comp.  Stat..  3881,  section  i86f. 
3  Comp.  Stat..  3882.  section  187. 
3  Comp.  Stat..  3882,  section  188. 
3  Comp.  Stat..  3883,  section  189. 
3  Comp.  Stat..  3883.  section  190. 
3  Comp.  Stat.,  3883.  section  191. 
3  Comp.  Stat..  3883.  section  191a. 
3  Comp.  Stat..  3883,  section  191b. 
3  Comp.  Stat..  3883.  section  191c. 


39.  243. 

40. 

40.  223. 

41.  223. 

41. 
39.  312. 

606. 

658. 

39- 

47- 

45,  47. 

47,  227. 
49.  221. 

363. 

365.  630. 

50.  721. 

50. 

49. 

51. 

51. 

52. 

52. 

52. 

52. 

326,  327 

336. 

336. 

336. 

336. 

329. 

329. 

330. 

Table  oi"  Statutks  Cjtku.  1395 


3  Comp.  Stat.,  3883.  section  lyj.    721,  730. 

3  Comp.  Stat..  3884,  section  193.    730. 

3  Comp.  Stat.,  3884,  section  194.    3! 

3  Comp.  Stat.,  3884.  section  195.    53. 

3  Comp.  Stat..  3884,  section  196.    53,  54. 

3  Comp.  Stat.,  3885.  section  197.    53,  231.  232,  234. 

3  Comp.  Stat.,  3885,  section  198.    62. 

3  Comp.  Stat..  3885,  section  199.    62. 

3  Comp.  Stat.,  3885,  section  200.    7,  65. 

3  Comp.  Stat.,  3887,  section  200a.  as  amended  bv  P.  L.  1914.  p.  215.    66. 

3  Comp.  Stat.,  3888.  section  201.    74,  78.  254,  758. 

3  Comp.  Stat.,  3888,  section  202.    74,  78. 

3  Comp.  Stat.,  3888.  section  203.    78. 

3  Comp.  Stat.,  3889.  section  204.    80,  696. 

3  Comp.  Stat..  3901,  section  9.    29. 

3  Comp.  Stat.,  3907,  section  31.    469. 

3  Comp.  Stat..  4058,  section  24.    413. 

3  Comp.  Stat..  4058,  section  25.    413. 

4  Comp.  Stat.,  4642,  section  36.    67. 
4  Comp.  Stat.,  4672.  section  2a.    507. 
4  Comp.  Stat.,  4673,  section  4.    507. 
4  Comp.  Stat.,  4673,  section  4a.    508. 
4  Comp.  Stat.,  4673,  section  4b.    508. 
4  Comp.  Stat.,  4674,  section  6.  508. 

4  Comp.  Stat..  4680,  section  17.    496. 

4  Comp.  Stat.,  4680,  section  18.    491. 

4  Comp.  Stat.,  4681,  section  19.    494. 

4  Comp.  Stat.,  4682,  section  19a.    491. 

4  Comp.  Stat.,  4682,  section  19b.    492. 

4  Comp.  Stat..  4682,  section  19c.    492. 

4  Comp.  Stat.,  4682,  section  I9d.    492. 

4  Comp.  Stat.,  4683,  section  21,  as  amended  by  P.  L.  1915,  p.  151.    497. 

4  Comp.  Stat..  4685,  section  27.    498. 

4  Comp.  Stat.,  4686,  section  31.    506. 

4  Comp.  Stat.,  5051,  section  i.    334. 

4  Comp.  Stat.,  5051,  section  2.    318. 

4  Comp.  Stat.,  5052,  section  3.    335. 

4  Comp.  Stat.,  5052,  section  4.    335. 

4  Comp.  Stat.,  5056,  section  i.    56. 

4  Comp.  Stat.,  5306.  section  544.    485. 

4  Comp.  Stat.,  5668,  section  5.    398.  612. 

4  Comp.  Stat.,  5669,  section  6.    3^^. 

4  Comp.  Stat.,  5669,  section  7.    300. 

4  Comp.  Stat.,  5670,  section  8.    301. 

4  Comp.  Stat.,  5670,  section  9.    301. 

4  Comp.  Stat.,  5671,  section  13.    352. 

4  Comp.  Stat.,  5861,  section  i.     126. 

4  Comp.  Stat.,  5861,  section  2.     177,  179. 

4  Comp.  Stat.,  5862,  section  4.     136. 

4  Comp.  Stat.,  5863,  section  5.     137. 

4  Comp.  Stat.,  5864.  section  13.    238,  239,  240. 

4  Comp.  Stat.,  5865,  section  14.    242. 

4  Comp.  Stat.,  5865,  section  15.  242. 

4  Comp.  Stat.,  5865,  section  16.    242. 

4  Comp.  Stat.,  5865,  section  17.    241. 

4  Comp.  Stat.,  5865,  section  20.     186. 

4  Comp.  Stat.,  5865,  section  21.     187. 

4  Comp.  Stat.,  5867,  section  24.    99,  125,  126,  127,  128. 

4  Comp.  Stat.,  5870,  section  25.    177. 


1396 


Pkobate  Law  and  Practice. 


Comp.  Stat 
Comp.  Stat, 
Comp.  Stat 

L.  1911,  P 

L.  1911 

L.  1911 

L.  1911 

L.  191 1 

L.  1911 

L.  191 1 

L.  191 1 

L.  191 1 

L.  1912 

L.  1912,  p 

L.  1912,  p 

L.  191 

L.  1912 

L.  1912 

L.  1912 

L.  191 2 

L.  1912 

L.  1912 

L.'l9I2 

L.  1912 
L.  1913 
L.  1913 
L.  1913 
L.  1913 
L.  1913 
L.  1914 
L.  1914 
L.  1914 
L.  1914 

L.  I9I4: 

L.  1914 
L.  1915 
L.  1915  - 
L.  1915,  P 
L.  1915,  P 
L.  1915.  P 
L.  191 
L.  191 
L.  191 
L.  191 
L.  191 
L.  191 
L.  19 
L.  19 
L.  19 
L.  19 
L.  19 
L.  19 
L.  19 


15 

15. 

15. 

15. 
)i5 
P15. 

)I5^ 


L.  1915. 


5871,  section  28.     105. 
.,  5872,  section  35.    220. 
.  5873,  section  37.    228,  230. 
21,  section  i.    61. 
21,  section  2.    61. 
70.    782,  786,  788. 
95-    321. 
96.    190. 

538,  section  2.    280. 

539.  section  i.  280. 
671.    218. 
734-    362,  365.  623. 
53.  803,  804,  805. 
131.    506. 

276.  581. 
466.    438. 
537,  section  i.    28. 
537,  section  2.  28. 
551,  section  i. 
551,  section  2. 
551,  section  3. 
565,  section  i. 
565,  section  2. 
565,  section  3. 
81.    5. 
102.    203. 
227.    303. 

277.  771.  772. 
447-    379- 
2>7-  6. 

69.  section  i. 
69,  section  2. 
69,  section  3. 
215.    66. 
551.    790. 
27-    345- 

40.  319.  320. 

41.  429. 

57-    777- 

61,  section  7.    490,  509. 

140.    57. 

141-    S8. 

151.    497. 

246.  251. 

326.    66. 

Z22,-    709- 

343.    722,  72s. 

350.    361. 

356.    761. 

358.    426. 

369.    219. 

505.    206. 

605.  212.  214.  216,  445. 

715.    645,  646.  647. 


209. 
209. 
209. 
302. 
302. 
302. 


189,  262.  264,  270. 
705.  717.  721.  724- 
698,  699,  700,  704.  705.  706.  707.  708,  709,  712. 


TABLE  OF  RULES  CITED. 


ORPHANS'   COURT  RULES. 


Rule  I. 
Rule  2. 
Rule  3. 
Rule  4. 
Rule  5. 
Rule  6. 
Rule  7. 
Rules. 
Rule  9. 
Rule  13. 
Rule  14. 
Rule  15. 
Rule  16. 
Rule  17. 
Rule  18. 
Rule  19. 
Rule  20. 
Rule  21. 
Rule  22. 
Rule  23. 
Rule  24. 
Rule  25. 
Rule  26. 


201,  258. 
259,  260. 
260. 
261. 
258, 
263. 
200.  68 
278. 
279. 
747.  7 


369.  2-]i.  274, 


74- 


749,  755.  756. 


749.  753,  755,  756. 

749.  750. 

261. 

642. 

646. 

635. 

664. 

636. 

659- 

686. 

690. 

378.  392. 

717- 


Rule  27. 
Rule  28. 
Rule  29. 
Rule  30. 
Rule  31. 
Rule  2,'2. 
Rule  zz. 
Rule  34. 
Rule  35. 
Rule  36. 
Rule  39. 
Rule  40. 
Rule  41. 
Rule  42. 
Rule  43- 
Rule  44. 
Rule  45. 
Rule  46. 
Rule  47. 
Rule  48. 
Rule  49. 
Rule  50. 
Rule  51. 


724. 
724 
614. 
482. 
475- 


472. 

446.  471.  509.  762,  763.  788. 
446.  448.  510,  764.  788. 
446,  510,  764,  ■j%'i.  789. 
764.  780. 


764.  789. 

40. 

559.  588. 

295.  303. 

304. 

304. 

295.  305,  306. 

299. 

757- 

758. 

54.  67. 

76.  T/. 

76.  ■;■]. 

77- 


Ru: 

Ru 

Ru 

Ru: 

Ru 

Ru: 

R 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 

Ru 


e  I. 
e2. 

6  3- 

6  4- 
e5- 
e6. 

6  7- 

e8. 

6  9- 

e  10 

II 

12 

13 

14 

15 

e  16 

e  17 

e  18 

e  19 

e  20 

e  21 


6. 

7,^ 
7.  i 
14. 
IS- 
IS- 
16. 
16. 
16. 

13 
16 
17 
17 
18 
18 
19 
19 
20. 
21 
22 


PREROGATIVE   COURT   RULES. 

Rule  22.  22. 

Rule  23.  23. 

Rule  24.  23. 

Rule  25.  24. 

Rule  26.  24. 

Rule  27.  25. 

Rule  28.  25. 

Rule  29.  25. 

Rule  30.  25. 

Rule  31.  25. 

Rule  2,2.  26. 

Rule  2i2-  26. 

Rule  34.  26. 

Rule  35-  27. 

Rule  36.  27. 

Rule  2,7.  29. 

Rule  38.  29. 

Rule  39.  303.  304- 

2.  Rule  40.  304. 

Rule  41.  304. 

Rule  42.  304. 


^397 


1398 


Probate;  Law  and  Practice. 


Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 
Rule 


305- 

305. 

305. 

305. 

29. 

29. 

29. 

29. 

29. 

29. 

30. 

30. 

31. 


Rule  56. 
Rule  57. 
Rule  58. 
Rule  59. 
Rule  60. 
Rule  61. 
Rule  62. 
Rule  63. 
Rule  64. 
Rule  65. 
Rule  66. 
Rule  67. 
Rule  68. 


87 


674. 


INDEX  OF  FORMS. 


ACCOUNTING— 

Administrator,   of    1 1(^7 

decree  on   1207 

petition  on   1 188 

second  or  other  accounting   1189 

Assets,  statement  of  annexed  to  1206 

Citation  on  in  lieu  of  notice  of  settlement  1 187 

Citation  to  account,  see  Proceedings  to  Require,  this  title  infra. 
Compelling,  see  Proceedings  to  Require,  this  title  infra. 
Decree  on 

allowing  account  and  ordering  distril)ution   i_'i5 

balance  due  accountant,  where  1212 

final,    where    1213 

distribution,  ordering  and  allowing  account   IJ15 

exceptions  filed,  when  1213 

executor,  administrator  or  guardian's  final 1207 

balance  due  accountant,  where   1213 

final 1207 

adminstrator,  of 1207 

balance  due  accountant,  where  1213 

executor,  of    1207 

guardian's  final,  on    1207 

intermediate,  on    1208 

interlocutory,  where  balance  due  accountant.  1212 

trustee's   1209 

special  trust,  in  case  of   1210 

Exceptions   to    1207 

decree  on   1213 

Executor  I)}-,  with  co-executor,  proceedings  to  require 

order  requiring  account    1219 

order  to  show  cause  1218 

petition    1216 

Executor,  of    1 197 

decree   on    1207 

petition   on    1 182 

second  or  (jthcr  accounting,  on   I  iSq 

Failure  of  executor,  etc.,  to  file 

order  directing  payment  of  claim  of  barred  creditor  .  1069 

petition  of  barred  creditor  for  relief  1067 

1399 


i 


I400  Probate  Law  and  Practice. 

ACCOVNTmO— Continued. 

Failure  of — Continued. 

proceedings    to   compel,    see   Proceedings   to    Compel, 
this  title  infra. 

Guardian  of   

citation  on  final  

final,  decree  on   

intermediate,  decree  on   

petition    on    

second  or  other  accounting   

Insolvent  estates 

decree  allowing  and  ordering  distrilnition  of 

Investments 

changes  in.  statement  of  annexed  to   

statement  of  annexed  to   

Neglect  of  executor,  etc.,  to  file 

order  directing  payment  of  claim  of  barred  creditor  . 

petition  by  barred  creditor  for  relief 

proceedings   to   compel,    see   Proceedings   to    Compel. 
this  title  infra. 

Notice  of  settlement   

proof  of  publication    

posting    

mailing    

Petition  on 

administrator,   of    

second  or  otiier  accounting 

executor,  of   

second  or  other  accounting  

guardian,  of 

second  or  other  accounting   

second  or  other  accounting   

trustee's  first  account   

separate  trust,  in  case  of  

subsequent  account  

Proceedings  to  require 

application  to  Orphans'  Court,  l)y  

order   directing  executor,   etc.,   to   ac- 
count     

order  to  show  cause   

petition     

executor  neglecting  to  account  within  one  year  . . 

citation  to  account    

petition    requesting    Surrogate    to    issue 

citation   

executor  neglecting  to  account  within  two  years  . 


Index  of  Forms.  1401 

ACCOUNT  I  XG—0')(/nna-(y. 

Proceedings  to  require — Cuntiiiucd. 

executor  neglecting  to  account  uitliin  t\v..  years — 
Continued. 

citation  to  account    IJ24 

order  of  Orphans'  Court  directing  issue 

of   citation    I_>J4 

petition  to  Surrogate  to  report  neglect  .  iJJJ 

report  by  Surrogate  of  neglect  ijjj 

Statement  of  assets  annexed  to i jo6 

changes  in  investments  annexed  to   i2o() 

Surety  to,  by  principal  on  bond 

bond  by  principal  to  surety  1019 

order  directing   loiy 

petition    for    1016 

rule  to  show  cause  on  1017 

Trustee,    of    i  icy) 

citation  on   hnal    i  if'j 

decree   on    1 209 

special  trust,  in  case  of   1210 

petition  on  first  account  1 191 

separate  trust,  in  case  of  1 195 

subseqtient  accounts    1 193 

special  trust,  in  case  of i-'oj 

ACKNOWLEDGMENT— 

General   form  of    945 

ADMINISTRATION.— See  also  Administrators. 

Absent  next  of  kin 

inquiry   for,   proof  of    987 

Appeal  from  grant  of,  see  Appeals. 

Application  for,  by  next  of  kin  977 

notice   of 979 

mailing,  proof  of ..'..'.' 981 

order  directing  service  upon  non-residents  980 

service  of,  proof  of   981 

order  granting   98^ 

petition    977 

renunciation    979 

Application  for,  where  next  of  kin  neglect  t(j  apply 985 

inquiry  for  absent  next  of  kin,  proof  of  987 

notice  of  application    989 

mailing,  proof  of    981 

non-residents,  order  directing  service  upon  ()8() 

service  of,  proof  of  981 

order  granting  administration    f)^yi 

petitioiT    985 


1402  Probate;  Law  and  Practice. 

ADMINISTRATION— Co»/i;Ma'd. 

Application  for  upon  estate  of  non-resident  looi 

creditor,  by 

notice  to  non-resident  administrator,  or- 
der  prescribing    1005 

order  granting   1006 

petition    1002 

foreign  administrator,  bj' 

order  granting   1004 

petition    looi 

Bond  of  administratoi 

grant  of  letters,  upon    9^3 

sale  of  lands  for  debts,  on    1087 

Caveat  against  grant  of   1007 

Citation  upon  contested   1007 

caveat  filed,  where   1007 

disputed,  where    1008 

Contested    : 1007 

caveat  against  grant  of  administration 1007 

citation   1007 

disputed,  citation  upon    1008 

Disputed,  see  Contested,  this  title  supra. 

Letters  of  •     9^5 

Next  of  kin,  absent 

inquiry  for,  proof  of   987 

Next  of  kin,  application  for  by   977 

absent  next  of  kin,  proof  of  inquiry  for 987 

notice  of   979 

service  of 

mailing,  proof  of   981 

order  directing  on  non-residents 980 

proof  of    981 

petition    977 

renunciation    979 

Next  of  kin  neglect  to  apply,  where  985 

absent  next  of  kin,  proof  of  inquiry  for 987 

notice  of  application  979 

service  of 

mailing,  proof  of   981 

order    directing    service    on    non-resi- 
dents        980 

proof   of    981 

order  granting    990 

petition    985 

Non-residents,  upon  estate  of  looi 

creditor,  upon  application  of 

order  appointing   1006 


Index  of  Forms.  1403 

ADMINISTRATION— C'o/i/niKcrf. 

Non-residents,  upon  estate  of — Continued. 

creditor,  upon  application  of — Continued. 

order   prescribing   notice   to   be  v;ivcn 

non-resident    administrator    1005 

petition    1002 

foreign  administrator,  upon  application  of 

order  appointing 1004 

petition    looi 

Notice  of  application    979 

absent  next  of  kin.  proof  of  inquiry  for  (j^7 

mailing,  proof  of   9H1 

next  of  kin  neglect  to  apply,  when  9X9 

service  of 

mailing,   proof  of    981 

order   directing   service   on    non-residents  980 

proof    of    i)8i 

service  of,  proof  of    9^1 

Oath  of  administrator    <V^3 

Order  granting 

next  of  kin  neglect  to  apply,  when   9<)0 

upon  application  of   982 

Petition  for 

next  of  kin.  by   ''"7 

neglect  to  apply,  when  <>^5 

Renunciation  of  right  of 

next  of  kin.  liy   979 

ADMINISTRATION  C.  T.  A.— See  also  Admin\.<;hators  c.  t.  a. 

Bonds  on 

grant  of  letters,  on    0.=^-' 

sale  fif   lands,   f)n    95- 

Letters  of 954 

notice  of  application    '>7<) 

order  directing  service  upon  non-residents   ....  <)Ho 

mailing,  proof  of   '>8i 

service  of.  proof  of   '>8i 

Oath  of  administrator   954 

Order  admitting  will  to  probate  and  granting 'J5i 

Petition  for  probate  of  will  and  letters  of  94^ 

Renunciation    979 

Probate  of  will  and  letters  of.  nrder  liramiiit;   951 


1404  Probate  Law  and  Practice. 

ADMINISTRATORS.— See  also  Administration. 

Assets  of  estate,  proceedings  l)y  for  discovery  of,  see  Discov- 
ery Proceedings. 
Bond  of 

grant  of  letters,  on   9^3 

sale  of  lands  for  debts,  on  1087 

Condition   of    estate,    discoAery   against   as   to,   see   Discovery 

Proceedings. 
Death  of,  see  Substituted  Ad)uinistration. 
Discharge  of,  see  Discharge  of  B.vecitfors,  etc. 

Disputing    claim,    notice    1063 

Letters  of  administration 985 

Non-resident 

power  of  attorney  from    944 

acknowledgment  of    945 

Notice  by  that  claim  is  disputed  1063 

Oath  of   983 

Removal  of,  see  Reuwval  of  Executors,  etc. 

Sale  of  lands  for  debts  by,  see  Sale  of  Lands  for  Debts. 

ADMINISTRATORS    C.    T.    A.— See    also    Administrators    and 
Administration   c.   f.   a. 
Bond  of 

grant  of  letters,  on   95^ 

sale  of  lands,  on  952 

Death  of.  see  Substitutionary  Administration  c.   1.  a. 
Lands,  sale  of  by,  see  .S'alc  of  Lauds. 

Oath  of  954 

Sale  of  lands  by.  see  .Sale  of  Lands. 

ADOPTION  OF  MINORS— 

Abandonment  of  child,  in  case  of  13-20 

decree   for  adoption    1324 

next  friend 

consent   of    1323 

order   appointing    1322 

order  fixing  day  for  appointment  of   1321 

petition     1320 

Children's  Aid  Society,  surrender  of  child  to.  in  case  of 1332 

consent  of  society  to  adoption  1334 

decree  for  adoption    1336 

hearing,  order  fixing  day  for  1335 

petition     1332 

Consent  of  parents  obtained,   when    1327 

consent  of  parent    1328 

decree   for  adoption    1330 

hearing,  order  fixing  day  for   1329 

petition    1327 


Index  of  Forms.  1405 

ADOPTION  OF  MIKORS— Continued. 

Consent  to  adoption 

Children's  Aid  Society,  by  .  .  lyjt, 

next   friend,  by    ; 

parent,   by    . .  > 

Decree  for 

abandonment  of  chiUl.  in  cas-c  ui  ijil 

parent's  consent  obtained,  when   1330 

surrender  of  child  to  Children"-    \^'  ^  ^.i-c.m    Ijj6 

Hearing 

order  fixing  day  for  13J9 

surrender  of  child   t'>  Children's  Ai*l  Society. 

in  case  of   .  1335 

Next  friend 

consent  of,  to  adoption  13^3 

order   appointing    13^^ 

order  fixing  day  for  appointment  of  13^1 

Parent,  consent  of  i J-J< 

Petition 

abandonment  of  child,  in  case  ui li^ 

parents'  consent  ol)tained.  when   13^ 

surrender  of  child  to  Children's  Aid  Society,  in  case 

of  ^iSJ 

Surrender  of  child  to  Children's  Aid  Society,  in  case  «>f   133^ 

consent  of  Society  to  adoption   1334 

decree  for  adoption   ^ii^ 

hearing,  order  fixing  day  for  IJJ5 

petition    '  33- 

APPEALS— 

Accounting,  from  decree  of  Orphans'  Cnurt  allowing  I355 

answer    '  '"'' 

notice  of  appeal   .  .  '  ' 

petition   of  appeal    

Administration,  from  grant  of  by  Surrogate  ..- 

decree  reversing  Surrogate   ^M^ 

notice  of  appeal  '•^^- 

petition  of  appeal  • 

Answer  to  petition  of  appeal 

accounting,  from  decree  of  Orphans'  Court,  allowinR   I35<» 
probate  of  will  by  Orphans'  Court,  from  1  •' l 

Citations  on,  from   Surrf)gatc   '  "' 

Dismissal    of    

notice  of  application 
order  dismissing  .  .  ■ 
petitinn    for    


1406  Probate  Law  and  Practice. 

APPEALS— Continued. 

Notice  of  appeal  from  Orphans'  Court 1352 

Orders 

administration,  reversing  order  of  Surrogate   1348 

dismissing  appeal 1352 

probate  of  will  by  Surrogate 

affirming  probate  by  Surrogate  1349 

reversing  probate  by  Surrogate 1346 

Orphans'  Court,  from   v 1352 

account,  from  decree  on   1355 

answer  to  petition  of  appeal  1356 

petition  of  appeal    1355 

notice  of  appeal   ! 1352 

probate  of  will  by 

answer  to  petition  of  appeal  1354 

petition     1353 

Petition  of  appeal 

accounting,  from  decree  on   1355 

administration,  from  order  of  Surrogate  granting   .  .  1342 

dismissal  of  appeal,  for 1350 

probate  of  will 

orphans'  court,  by   1353 

surrogate,  by   1343 

Probate  of  will 

Orphans'  Court,  by 

answer  to  petition  of  appeal  1354 

notice  of  appeal  1352 

petition   of   appeal    1353 

Surrogate,  by 

citations  on   1346 

order  affirming  Surrogate   1349 

order  reversing  Surrogate   1346 

petition  of  appeal   1343 

.Surrogate,  from  decree  of 

administration,  from  order  granting   1342 

order  reversing  decree  of  Surrogate  1348 

petition  of  appeal    1342 

citations    on    1346 

probate  of   will    1343 

citations  on   1346 

order  affirming  Surrogate   1349 

order  reversing  Surrogate  1346 

petition   of    appeal    1343 

ASSETS— 

Discovery  of.  proceedings  for.  see  Dtscofcry  Proceedings. 

.Statement  of  annexed  to  account  1206 


Index  of  Forms.  1407 

BARRING  CREDITORS— 
Barred  creditor 

account,  where  executor,  etc.,  neglects  to 

order  directing  payment  of  claims  1069 

petition  by  creditor  for  relief   1067 

assets  unaccounted  for,  payment  of  claim  from 

order  directing  payment  of   1072 

petition  for   1071 

decree    of    distribution,    where    administrator    neglects 
to  obtain  • 

order  directing  payment  of  claim   1069 

petition    for   relief    1067 

payment  of  claim  from  assets  unaccounted  for 

order  directing  payment  of   1072 

petition  for   107 1 

payment  of  claim  from  undistributed  estate 

order   directing    io6<;) 

petition    for    H)67 

suit  by  on  refunding  bond   1005 

order  authorizing  suit   1066 

petition  for  order  authorizing  suit   1065 

Decree  barring   '<^4 

Notice 

executor,  etc..  by.  to  creditor  disputing  claim  1063 

Notice  to  creditors  to  present  claims   io<>l 

posting,  proof  of 1062 

publication,  proof  of   1062 

Posting  notice,   proof   of    io6j 

Publication  of  notice  to  creditor,  proof  of   1062 

Refunding  bond,  suit  on  by  barred  creditor   1065 

order  authorizing  suit    1060 

petition  for  order  authorizing  suit   1065 

Rule  to  limit 106' 

notice  of   ^^^ 

posting,  proof  of   1062 

publication,  proof  of   'O"' 

BONDS— 

Administrator,  of 

grant  of  letters,  upon    0**^.? 

sale  of  lands  for  debts,  u\>i>u 10S7 

Administrator  c.  t.  a.,  of 

grant  of   letters,  on                                                •  0.^2 

sale  of     lands,  on    *^5- 

Certificate  on  deposit  of   securities   '"-5 

Deposit  of  securities-  to  reduce 

amount  of  bond,  order  tixing  and  .lircctini,'  <U-p"sit  of 


sccuritK-> 


102  J 


90 


1408  Probate  Law  and  Practice. 

BOKDS— Continued. 

Deposit  of  securities  to  reduce — Continued. 

certificate  of  depositary    1025 

possession    of    securities    deposited,    proceedings    to 
obtain    order    directing    delivery    of 

securities  to  executor,  etc 1027 

petition  by  executor,  etc 1025 

petition 1023 

Devisees,  s^  Heirs  and  Devisees,  this  title,  infra. 
Discharge  of  sureties,  see  Sureties. 
Executors,  by 

bond  of   942 

non-resident,  of   942 

order  requiring  to  give   1030 

order  to  show  cause  1029 

petition  for  order  to  require   1028 

Executor  by  to  co-executor,  see  Co-E.veeutors. 
Guardians,  of 

idiots  and  lunatics,  of    1318 

minors,   of    1268 

testamentary    1276 

Heir  by,  to  prevent  sale  of  lands  to  pay  debts 1091 

Justification  of  sureties    943 

Xon-resident  executor,  of  942 

Principal  on  bond,  by.  to  surety  thereon   1019 

Prosecution  of,  see  Prosecution  of  Bonds. 
Reduction  of 

deposit  of  securities,  by,  see  Deposit  of  Securities 

to  Reduce,  this  title,  supra, 
order      discharging     sureties     on      filing     of      re- 
duced bond    1022 

order  reducing   1021 

petition   for   1020 

Sale  of  lands  for  debts 

executor   or   administrator,   by    1087 

heir  by,  to  prevent    1091 

Substitutionary  administrator  c.  t.  a.,  of 

grant  of  letters,   on    999 

sale  of  lands,  on   999 

Sureties  on 

discharge  of,  see  .Sureties. 

discharge    of    after    administration    completed,    see 
Sureties. 

justification  of 943 

release  of  from  further  liability,  see  Sureties. 
security  to  by  principal  on  bond,  see  Sureties. 


Index  of  Forms.  1401) 

BO'SDS—Coiitwiicd. 

Trustee 

appointed  by  court,  of   ijt,2 

CAVEAT— 

Administration,  against  grant  of  1007 

Certificate  by  Surrogate  tbat  none  filed    1049 

Probate  of  will,  against  061 

citations    96_' 

order  admitting  will  to  probate   96J 

denying  probate    964 

CITATIONS— 

Account,  to 

executor,  etc..  neglecting,  for  one  year  IJJO 

two    years    .....'.....  I J-M 

Accounting,  on  trustees  or  guardians  final   1 187 

Accounting,  on  trustee's  or  guardian's  final  1 1S7 

Administration,  upon  contest  concerning 

caveat  filed,  where  1008 

dispute  arises  otherwise  than  by  caveat,  where  1008 

Administrator,  to,  on  sale  of  lands  for  debts I  loj 

Appeal  from  Surrogate,  on 1346 

Caveat  against  probate  of  will,  on   062 

administration,  on    ux»8 

Distributive  share,  on  suit  for   1 252 

Doubts  on  face  of  will,  when  arise 959 

Executor,  etc..  to,  to  testify  on  sale  of  lands  for  debts iioj 

General    form    1 180 

Inventory,   to  hie   1060 

Legacy,   in    suit    for    1 252 

Probate  of  will  by  Surrogate 

appeal,   on    r .  .  i  ^46 

caveat,    on     962 

Release  of   surety   from   further   liability    loio 

Sale  of  lands  for  debts 

executor,  etc.,  to  testify  on   1 102 

CODICIL— 

Form  of    1360 

CO-EXECUTORS— 

Accounting  between    1216 

order   recjuiring   account    .  I2I9 

order  to  show  cause    1218 

petition    1210 

P.ond  by  one  to  secure  the  other   1031 

order  rfquiring  co-executor  to  give    .  .                     lo.M 


I4IO                    Probate  Law  and  Practice.  ! 

CO-EXECUTORS— ConhVm^d. 

Bond  by  one  to  secure  the  other — Coiiiinucd. 

order  to  show  cause  1033 

petition    1031 

Order 

executor  to  give  bond  to  co-executor,  requiring 1034 

Order  to  show  cause  why  executor  should  not  give  bond  to 

secure  co-executor  1033 

Petition  by  one  for  security  from  co-executor  1031 

CONTEMPT— 

Order  committing  executor,  etc.,  for 1249 

Petition  for  order  adjudging  executor,  etc.,  in   1247 

Rule  to  show  cause  1248 

CREDITORS— 

Barred  by  decree,  relief  of.  see  Barring  Creditors. 
Barring  claims  of,  see  Barring  Creditors. 

Decree  barring   1064 

Notice  to  that  claim  is  disputed    1063 

Oath  verifying  claim  of    1063 

Rule  to  limit,  see  Barring  Creditors. 

DECREES — See  Orders  and  Decrees. 

DISCHARGE  OF  EXECUTORS,  etc.- 

Application    1 174 

notice  of    1174 

proof  of  service  of   981 

Notice   of   application    r 1181 

proof  of  service  of  981 

Order  discharging   1 176 

Petition    1 174 

DISCOVERY  PROCEEDINGS— 

Assets,  for  discovery  of  1077 

order  directing  delivery  of  assets  to  executor,  etc.   .  .  1079 

order  for  discovery   1078 

petition   by   executor,   etc 1077 

Condition  of  estate,  against  executor,  etc ' 1073 

order   for  discovery    1076 

order  to  show  cause  1075 

petition     1073 

Executor,  etc.,  against,  as  to  condition  of  esta'te 1073 

order    for    discovery    1076 

order  to  show  cause  1075 

petition    , 1073 


Index  or  Forms.  141  i 

DISCO\ERY  PROCEEDINGS— ro/i/n.'K.v/. 

Wills,  of  .  loSo 

order  for  discovery    1081 

to   produce    w  ill    io8j 

petition   for  discovery   •  .  1080 

DISTRIBUTION— 

Decree  of 

neglect  to  obtain,  petition  by  Ijarred  creditor  for  relief  1067 

ordering  and  allowing  account  1215 

Insolvent   estates 

decree  ordering  and  allowing  final  account    1156 

Intestate's  estate 

account  allowing  and  ordering    I-'I3 

decree  for — ". i-34 

next  of  kin,  proof  of   1-34 

proof  of   next  of  kin    1-34 

Petition  for  decree  of 

intestate's   estate,    of    i-3- 

will,  in  case  of  '  -3^ 

Refunding  bonds,  see  Refunding  Bonds. 
Releases,  see  Releases. 

Unclaimed  legacy  or  distributive  share,  payment  ><{  into  c.iurt. 
see  Payment  of  Money  into  Court. 

Will,  in  case  of   1-35 

decree    ^  --5° 

■  notice  of  application    , 1-35 

petition  for  decree   1-36 

DOUBTS  ON  FACE  OF  WILL— 

Citation    959 

Decree  admitting  to  probate   9^0 

Order  adjudicating  existence  of  dnulits   95^ 

EVIDENCE— 

Testimony  de  bene  esse,  see  Testimony  de  hene  esse. 
EXECUTORS— 

Bonds  by,  see  Bonds.  * 

co-executors,  to.  see  C'o-E.veeulors,  etr. 
proceedings  to  require,  see  Bonds. 

Disputing    claim,    notice    ■    "^'^-^ 

Non-resident 

bond  of   ''"*"' 

power  of  attorney   from    ''44 

acknowledgment   of    945 

Notice  by.  that  claim  is  disimted '"63 

( )ath  of  on  grant  of  letters   ^^ 

Renunciation  liv    '• ^^ 


1412  Probate;  Law  and  Practice. 

EXEMPTION  FOR  FAMILY— 

Proceedings  to  set  off 
appraisers 

appointment  of  by  Surrogate 1054 

oath   of    1054 

petition  for  appointment  of   1053 

goods   selected,   list   of    1055 

oath  of  executor,  etc.,  verifying 1055 

FOREIGN  WILLS— 

Probate  of   955 

order    granting    957 

petition    for     955 

GUARDIANS— See  also  Ciiardiansliip. 

Bond  of   1268 

Discharge  of,  see  Discharge  of  Executors,  etc. 
Discovery  as  to  condition  of  estate  in  hands  of,  see  Discov- 
ery Proceedings. 
Discovery  of  assets  of  estate  by.  proceedings  for,  see  Discoz'- 
ery  Proceedings. 

Inventory    1056 

Next   of   kin 

absent,  inquiry  for,  proof  of  987 

Non-resident 

power  of  attorney  from  944 

acknowledgment   of    945 

Non-resident    ward 

removal  from  state  of  property  of   1282 

notice   of   application    1285 

order    authorizing    1286 

petition   for    1283 

Release  of  by  ward   1243 

Removal  from  state  of  property  of  non-resident  ward 1282 

notice  of  application   1285 

order    authorizing    1286 

petition   for   1283 

Removal  of,  see  Removal  of  Executors,  etc. 

Sale  of  ward's  lands   1302 

decree    directing     1304 

deed  by  guardian   1305 

petition    1302 

report  of  sale,  see  Sale  of  Lands. 
Support  and  maintenance  of  ward 

authorization  by  court  for  use  of  principal  of  ward's 
personal  estate 

order 1307 


Index  of  Forms.  1413 

GUARDIANS— C"(';;//);»r(/. 

Support    and    maintenance    of    ward — Loiiliiiucd. 

authorization  by  court  for  use  of  principal  oi  ward's 
personal  estate — Coiiliiiucd. 

petition    1 306 

sale  of  ward's  lands  for.  see  Sale  of  Wnnl's  Luiids. 
this  title,  supra. 

GUARDIANSHIP— See  also  Cuaidiaiis. 

Absconding  parent,  for  child  of   1^9*^ 

inquiry  for  absent  parent,  proof  of  987 

order    1^93 

petition    1^90 

Absent  next  of  kin.  inquiry  for.  proof  of   9^7 

Bond  on  grant  of  I-68 

Estate  of  minor  where  father  living 

bond    i-'6« 

order    i  -7 1 

petition    i  -7o 

Father  living,  estate  of  minor,  upon 

bond    1-68 

order    i-V 

petition     i-70 

Guardians  ad  litem,  see  Gitiirdiaus  ad  litem. 
Idiots  and  lunatics,  of,  see  Guard iauslii/'  of  Jdiots  and  Luna- 
tics. 
Letters  of 

Orphans'  Court,  issued  In    

Surrogate,    issued   by    

Minor,  on  estate  of  where  father  living  

bond 

order    

petition    

Next  of  kin,  absent  or  non-resident,  where   

bond     

order    

petition     

proof    of    inquiry    for    

Non-resident  minors,  of    

bond    

order  appointing  guardian   

petition  Ijy  orphan  over  fourteen  

removal  from  state  of  property  of  

notice  of  application   

order    authorizing     . 

petiti'in     


JO.; 

270 
JOS 

-7' 
_'7o 

-■«7 
j68 
_»«<; 
-•H7 
087 
.78 
.'()8 
-'80 
-7« 
-•83 
-'85 
_'86 
-•8j 


14 14  Probate  Law  and  Practice. 

GUARDIANSHIP— Co»/n/!/crf. 

Non-resident  minors,  of — Continued. 

special  guardian  of  estate  of 

bond    1268 

order  appointing   1282 

petition     1280 

Orphan  over  fourteen,  of   1260 

bond    1268 

order  appointing  guardian    1261 

petition    1260 

orphan  out  of  state,  where   1278 

Orphan   under   fourteen   years    1262 

Ijond     1268 

notice  of  appHcation  by  next  of  kin   1266 

order   appointing   mother    1264 

order  appointing  next  of  kin  1267 

petition 

mother,  by    1262 

next    of    kin,    by     1265 

renunciation  of  right  of  by  next  of  kin   1267 

Special  guardianship  of  estate  of  non-resident 

bond    1268 

order   appointing   guardian    1282 

petition     1280 

Testamentary 

acceptance  by   guardian    1275 

l)ond  of  guardian   1276 

consent  of  mother   1273 

letters  of  testamentary  guardianship   1277 

order  granting  letters    1275 

petition    1272 

GUARDIANS  AD  LITEM— 

Minor  over  fourteen,   for   1294 

notice  of  application   1294 

order  appointing 

minor,  on   application   of    1300 

no  application  on  behalf  of  minor,  when  1295 

petition 

minor,   on   belialf    of    1299 

where  no  application  made  on  behalf  of  minor  1294 
Minor  under  fourteen  years 

notice    of    application    1294 

order  appointing 

no  application  on  behalf  of  minor   1298 

petition   of  infant,  upon    130J 


Index  of  For>[>.  141 5 

GUARDIANS  AD  LITEM— Continued. 

Minor  under  fourteen  years — Continued. 

petition   for 

minor,    on    behalf    of    131JI 

no  application  on  behalf  of  minor  1^7 
Notice  of  application 

minor  over  fourteen  years,  to   1^04 

under  fourteen  years,  to !-'>'> 

GUARDIANSHIP  OF  IDIOTS  AND  LUNATICS— 

Asylum,  confined  in  at  expense  of  county  iii(> 

notice  of  application    I-J66 

order  appointing   1318 

petition    J3'6 

renunciation  of  nearest  of  kin    I-67 

Asylum,  confined  in  at  least  one  year  13' ' 

affidavit  of  medical  director  of  asylum   I3'3 

physician  connected  with  asylum 13' 4 

notice  of  application    1266 

order  appointing   I3I5 

petition   '3' ' 

renunciation  of  nearest  of  kin    I-67 

Bond  on  grant  of  letters   U^S 

Inquest  in  chancery,  after    I30<,1 

notice   of   application    I-66 

order  appointing  guardian   1310 

petition    •.  •  •    '3^9 

renunciation  of  nearest  of  kin  1^7 

HEIRS  AND  DEVISEES— See  also  Lands  of  Decedent. 

Judgments  against 

order  directing  payment  of  judgment  from  surplus 

proceeds  of  lands  sold  to  pay  debts 1 1--' 

petition  by  creditor  for  payment  of   from  surplus 

proceeds  of  lands  sold  to  pay  debts  n_'o 

Sale  of  lands  for  debts,  proceedings  by  to  prevent  loQ' 

bond  by  heir  or  devisee   '^^' 

demand  on  heir  or  devisee  for  payment   •  •  •  ^(^^ 

notice  to  heir  or  devisee  of  application   for  prosecution 

of  bond   • ''^^ 

order  approving  bond  and  adjourning  hearing logj 

order    fixing    amount    of    bond    '090 

order  for  prosecution  of  bond  or  sale  of  lan(N   1006 

petition  by  heir  or  devisee   ■    •  "•" 

petition    by    executor    for    relief    when    heir    or    devisee 

refuses  to  pay  '°^ 


1416  Probate  Law  and  Practice.. 

IDIOTS  AND  LUNATICS— 

Guardianship  of,  see  Guardianship  of  Idiots  and  Lunatics. 

INSOLVENT  ESTATES— 

Account,  final,  decree  allowing  and  ordering  distriluition   ....  1156 

Decree  of  insolvency   1 148 

Decree  on  exceptions  to  report  of  claims  and  assets  1147 

Distribution  of,  decree  allowing  account  and  ordering 1156 

Exceptions  to  account  of  assets   1146 

claim  of  creditor   1 147 

decree  on    1 147 

Extension  of  time  to  present  claim   1152 

order  extending  time   I155 

petition  by  barred  creditor   1152 

rule  to  show  cause   1 154 

Notice  to  creditors    1 141 

order  directing    1 140 

Order  directing  notice  to  creditors   I140 

Petition    1 139 

rule  to  limit  taken,  when  1 141 

Presentation  of  claims,  extension  of  time  for.  see  Extension 
of  Time  to  Present  Claims,  this  title,  supra. 

Report  of  claims  and  account  of  assets   1144 

exceptions  to  account  of  assets   1146 

claim    of    creditor    - 1147 

decree  on    1 147 

Rule  to  limit  taken,  when   1 141 

notice  of  intention  to  make  report    1143 

•     order  fixing  time  to  make  report   1142 

petition  for  decree  of  insolvency   1141 

Sale  of  land 

county  other  than  that  in  wliich  estate  was  decreed  in- 
solvent, situate  in 

order  for  sale   1151 

petition     for     1 150 

decree    ordering    1 148 

order  for  sale  and  decree  of  insolvency  1 148 

practice  on,  see  Sale  of  Lands. 

INVENTORIES— 

Administrator,   by    1050 

Affidavits  to,  see  Oath  to  Lrc'cntoiy.  this  title  infra. 
Appraisement 

administrator,   by    1050 

executor  by 1050 

Appraisers,  appointment  of 

administrator,    by    1050 

executor,   by    105G 


Index  of  Forms.  14 17 

IWEXTORIES— C(>/;/n;(a-(/. 

Appraisers,  appointment  of — Coiitiintiii. 

petition   for.  wlien  exemption  to  family  to  lie  set 

off    1053 

Surrogate,   by.    when   exemption   to    family   to   be 

set    off    1054 

Exemption  for  familw  wlien  to  l)c  set  oft' 
appraisers 

appointment  of  by  Surrogate  1054 

petition   for  appointment  of    1053 

goods  selected,  list  of    1055 

oath  of  administrator  verifying 1055 

oath   of  executor  verifying   1055 

Executor,  l)y    1050 

Failure  to  file,  proceedings  upon  1057 

citation     1060 

order  by  Orphans"  Court   directing  Surrogate  to  issue 

citation     1059 

petition    requesting   Surrogate   to   report    1057 

report   of   Surrogate  to  Orphans'  Court    1058 

Guardian,  by    1056 

Oath   to  inventory    105 1 

administrator,    by     1051 

appraisers,   by    105J 

when  exception  to  lie  set  oft'  to  family   ....  1054 

executor,    l)y    103 1 

Petition 

appointment  of  appraisers  by   Surrogate,    for    1053 

requesting  Surrogate  to  report  failure  to  file 1037 

Report  by  Surrogate  of  failure  to  file 1038 

petition  requesting  Surrogate  to  report   i<)37 

LWESTMENTS— 

Changes  in,  statement  of  to  Ije  annexed  to  account i-'o6 

Directions  of  court  as  to  '-57 

order    '-59 

petition     1257 

Statement  (jf  to  l)c  annexed  tr)  account I2o6 

JL'UICIAL  SALES— 

Advertisement  of   '  'O.'^ 

posting,   proof   of    '  106 

publication,    proof    of    1105 

Affidavits  of  value  of  land  aimexed  to  report  of  sale  iilj 
Deed 

private  sale,  after  '  "8 

public  sale,  after '  "4 


1418  Probate  Law  and  Practice. 

JUDICIAL  SALES— C'o;;//;/»<-(f. 

Notice   of    II05 

posting,  proof   of    1106 

publication  of,  proof  of   1105 

Notice  of  intention  to  make  report  of  sale  1 107 

service  upon  non-residents 

order  directing  manner  of    nog 

petition  for  order  directing  manner  uf   1107 

Order  confirming 

private  sale,  at   m? 

public   sale    1113 

Report  of  sale   1 100 

affidavit  of  value  of  lands  annexed  to   1 112 

notice  of  intention  to  make   1 107 

service    of,   non-residents,   upon 

order  directing  manner  of   1109 

petition  for  order  directing  manner  of  1107 

LANDS  OF  DECEDENT— See  also  Heirs  and  Dcz'isccs. 

Contract  of  decedent  for  sale  of,  fulfillment  of   1123 

decree  for  fulfillment  of  contract   1126 

hearing,  order  fixing  time  for  and  directing  notice  1124 

notice  of  application   1 125 

petition     1123 

Exchange    of    1 133 

order  confirming    II37 

petition    for    II33 

affidavits  annexed  to  1 1 12 

rule  to  show  cause   1 13^^ 

Sale  of,  see  Sale  of  Lands.  " 

for  debts,  see  Sale  of  Lands  for  Debts. 

LEGACIES  AND  DISTRIBUTIVE  SHARES— 

Suits  for,  see  Suits  for  Legacies  and  Distributive  Shares. 
LEGATEES  AND  DISTRIBUTEES— 

Refunding  bonds 

distributee,  by   1239 

legatee,   by    1240 

Releases 

distributee,  by   1242 

legatee,  by   1241- 

Suits  by  to  recover  legacy  or  distriluitive  share,  see  Suits  jor 
Legacies  and  DistributizT  Shares. 

LETTERS  OF  ADMINISTRATION— 

Form  of    O^S 


Index  of  Forms.  1419 

% 
LETTERS  OF  AD^[I^■ISTRATIOX  c.  t.  a.— 

Form  of    954 

LETTERS  OF  GUARDL\NSH1P— 

Orphans'  Court,  issued  by 1-169 

Surrogate,   issued  by    1269 

LETTERS  OF  SUBSTITUTIONARY  ADMIXISTRATIOX  - 

Form  of    994 

LETTERS    OF    SUBSTITUTIONARY    ADMINISTRATION 
c.  t.  a. — 

Form  of  1000 

LETTERS  TESTAMENTARY— 
Co-executor 

order  granting  after  probate  of  will  947 

petition   for  after  probate  of  will    946 

Form  of    945 

Oath  of  executor  on  grant  of 94- 

LETTERS  OF  TESTAMENTARY  GUARD! ANSH  1  P— 

Form  of    ^-7'' 

LOST  WILLS— 

Order  admitting  to  probate   9/6 

Petition    for    probate    973 

NEXT  OF  KIN— 

Absent,  proof  of  inquiry  for   <)87 

Absent  or  non-resident 

order  appointing  guardian  fnr  ciiild  of  i^Sij 

petition  for  guardianship  of  child  of  i-><^7 

Administration,  application  for  by 

notice  to  of  application  for  979 

order   directing   service   of   upon    non- 
resident      9^ 

mailing,  proof  of    981 

service,  proof  of   98' 

order    granting    9^-2 

Administration,  neglect  to  apply,  when    .  * 9^5 

notice  of    9^9 

service  of 

mailing,  proof  of   9^1 

order    directing    r.n    non-rcsi- 

(ii-nts    9^ 

proof   of    o8« 

order  granting    'WO 

petition    98.S 

rcnunciatii  m    979 


1420  Probate  Law  and  Practice. 

NEXT  OF  KIK—Coiitiuticci. 

Distribution,  decree  of,  proof  of  on  application  for 1234 

Guardianship 

notice  to  of  application  for   1266 

renunciation   of   right   of    1267 

Non-resident 

administration 

order   directing   notice   of   appli- 
cation  for  upon    980 

mailing  of  notice,  proof  of     981 
service  of  notice,  proof  of     981 

Refunding   bond   by    1239 

Renunciation  by 

right  of  administration,  of  979 

guardianship,  of   1267 

NON-RESIDENTS— 

Admii,iistration  on  estate  of,  see  Adiiiiiiistratioit. 
Administrator 

power  of  attorney  from   944 

acknowledgment  of   945 

Executor 

bond  of   942 

\  power  of  attorney   from    944 

acknowledgment  of   945 

Guardian 

power  of  attorney  from  '. 944 

acknowledgment   of    945 

removal  from  state  of  property  of  ward,  see  Minors, 
this  title,  infra. 
Minors 

guardianship  of,  see  Giiardiaiishit'. 

removal  from  state  of  property  of   1283 

notice    of    application    1285 

order  authorizing    1286 

petition     1283 

Next  of  kin  * 

guardianship  of  minor,  where,   1287 

order 1289 

petition     1287 

Sale  of  lands,  service  upon  of  notice  of  intention  to  report 

order  designating  manner  of   1109 

petition  for  order  designating  manner  of  1107 

Service  of  process  upon 

appointment  by  Surrogate  of  person  to  serve   1183 

proof    of    service    1183 


IxDKx  OF  Forms.  1421 

XOX-RESIDEXTS— (•<);(/.•;;».'</. 

Service  of  process  upon — Continucil. 

publication,  by    ,  ,g_^ 

notice  to  absent  parties   1185 

mailing,  proof  of    1062 

publication,  proof  of   io6j 

order    of    publication    1184 

proof  of  inquiry  and  mailing  1 186 

Service  upon  of  notice  of  intention  to  report  sale  of  lands 

order  designating  manner  of   1 109 

petition   for  order  designating  manner  of    1107 

Trustee 

power  of   attorney   from    944 

acknowledgment  of    945 

NOTICES— 

Absent  party,  to   1 185 

Administration,  next  of  kin.  to.  of  application  for 979 

Appeal  from  Orphans'  Court,  of  1352 

Barring  creditors 

present  claims,  to   1061 

posting,  proof  of  1062 

publication,  proof  of   1062 

Contract   of   decedent    for   sale   of   lands,   of   application    for 

order  for   fulfillment   of    1 125 

Creditors,   to 

claim  disputed,  that 1063 

present  claims  against  estate,  to 1061 

posting,    proof   of    1062 

publication,  proof  of  1062 

Devisees,  see  Ilcirs  and  Devisees,  this  title,  infra. 

Distribution  in  case  of  will,  of  application  for  decree  of 1235 

General  form  of   ii8r 

Guardian   ad   litem,  of  application   for  api)ointment   of   infant 

over  fourteen  years,  to   1294 

under  fourteen  years,  to   I2q6 

(".uardianship 

next  of  kin,  to,  of  application  for  12'yj 

Heir  or   devisee,   to,   of  application    for   prosecution   of   bond 

given  to  prevent  lands  being  sold  fo  pay  debts  1003 

Insolvent  estates 

creditors,   to    1 141 

orrkr    directing    1 140 

report  of  claims  and  assets,  of  intention  to  make. ...  1 143 

Mailing,  proof  of qSi 

Non-resident    minors.    remo\al    from    sl.ite    of    properly,    of 

application   for  order   for   1283 


1422  Probate  Law  and  Practice. 

NOTICES— Continued. 

Proof  of  mailing  of   981 

Proof  of  service  of  981 

Report  of  sale  of  lands,  of  intention  to  make 1107 

Sale  of  lands  for  debts  on  petition  of   judgment  creditor,  of 

application    for    1098 

Service  of,  proof  of   : 981 

Settlement  of  accounts,  of    1187 

Trustees,  appointment,  of  application  for   1228 

OATHS— 

Administrator,  of.  on  appointment  983 

Administrator  c.  t.  a.,  of,  on  appointment   954 

Appraisers,    by    1052 

exemption  for  family  to  be  set  off,  when   1054 

Creditor,  by,   verifying  claim    1063 

Executor  of,  on  grant  of  letters   942 

Exemption  for  family,  when  set  off 

appraisers,  by   1052 

list  of  goods  selected,  to 

administrator,   liy    1055 

executor,  by    1055 

Inventory,  to 

administrator,   by    1051 

appraisers,    by     1052 

exemption  for  family  set  off,  when   . .  1054 

executor,  by  105 1 

Suljstitutionary  administrator,  of,  on  grant  of  letters 993 

Substitutionary  administrator  c.  t.  a.,  of,  on  grant  of  letters.  .  998 

ORDERS  AND  DECREES— 

Accounting 

allowing  and  ordering  distribution    1215 

balance  due  accountant,  where   1212 

final   decree    1213 

citation  to  file,  Orphans'  Court,  by,  directing  Sur- 
rogate to  issue   1224 

co-executors,  between,  requiring  1219 

directing,  by  principal  on  bond  with  surety 1018 

directing  executor  etc.,  to  file   1227 

exceptions    filed,    when     1213 

executor's,  administrator's  or  guardian's  final,  on  1207 

guardian's    final,    allowing    1207 

intermediate,    allowing    1208 

trustee's 1209 

special  trust,' in  case  of 1210 


Index  of  Forms.  1423 

ORDERS  AND  DECREES— ro»i/MM/.-(f. 

Administration 

next  of  kin,  granting  on  application  of   q8j 

next  of  kin  neglect  to  apply,  granting  when  . .     990 
non-resident    next    of    kin.    directing    method 

of  serving  notice  upon    qSo 

non-resident,  upon  estate  of 

granting,     upon     application     of 

creditor    1006 

granting,     upon     application     of 

foreign  administrator  1004 

prescribing  notice  to  foreign  ad- 
ministrator        1005 

Administration  c.  t.  a.  and  probate  of  will,  granting 951 

Adoption   of   minors 

adoption,  for 

abandonment  of  child,  in  case  of  1324 

parents'  consent  obtained,  when    1330 

surrender  of  child  to  Children's  Aid  So- 
ciety, in  case  of   1336 

hearing,  fixing  day  for 13J9 

surrender   of  child  to  Children's  Aid   So- 
ciety, in  case  of  1335 

next  friend 

appointing    1322 

fixing  day  for  appointment  of  1321 

Appeals 

dismissing    1352 

Surrogate,  from 

administration,  reversing  grant  of  by....    1348 
probate  of  will 

affirming  Surrogate   1340 

reversing  Surrogate   1346 

Assessment  of  damages  on  prosecution  of  bond 

assessing  damages    1048 

master's  report 

confirming    and    establishing    amount    of 

damages    1046 

confirming   nisi    1043 

reference,  of    1044 

Barred  creditors 

payment   of   claims   of    from   assets   unaccounted    for. 

directing    '"7- 

payment  of  claims  of  from  undistributed  estate,  direct- 
ing        >o69 

suit   on    refunding   bond,    autliorizim.;    ioWj 

91 


1424  Probate  Law  and  Practice 

ORDERS  AND  DECREES— Con  tin  11  cd. 

Co-executors 

accounting  between,  requiring    

bond  by  one  to  secure  other,  requiring   

letters  testamentary,  granting  to    

Contempt,  committing  executor,  etc.,  for   

Contracts  of  decedent  for  sale  of  land 

fulfillment   of   contract,    for    

hearing,  fixing  time  f(ir  and  directing  notice   

Creditors,   barring   

Depositary,  directing  to  deliver  securities  to  executor,  etc 

Devisees,  see  Heirs  and  Devisees,  this  title,  infra. 

Discharging  executor,  etc 

Discharging   sureties,   administration   completed,   after    

further  liability,    from    

Discovery  as  to  condition  of  estate  in  hands  of  executor,  etc., 

for    ' • 

Discovery  of  assets  of  estate 

directing  discovery    

delivery  of  assets  to  executor,  etc 

Discovery  of  will,  for   

Distribution 

intestate's  estate,  directing   

will,  in  case  of,  directing   

Distributive   share,   for   payment  of    

Executor,  bond,  requiring  to  give   

Foreign   will,  admitting  to  probate   

Guardians 

absconding  parent,  for  child  of.  appointing   

estate    of    minor    child,    appointing    upon    where 

father  is   living    

next    of    kin    absent    or    non-resident,    appointing 

where    

non-resident  minors 

order  appointing   

removal    from    state   of    prop- 
erty of,  authorizing   

special  guardian  of  estate  of, 

appointing    

orphan  over  fourteen  years,  appointing  

orphan   under    fourteen   years 

mother,  appointing 

next  of  kin,  appointing   

sale  of  ward's  lands  by,   for   

testamentary,  appointing 


Index  of  Forms.  1425 

ORDERS  AND  DECREES— Coiiiwucd. 

Guardians  ad  litem 

infant  over  fourteen  years 

infant,  on  application  of.  appointint;    1300 

no  application  on  behalf  of  infant,  when,  ap- 
pointing       I  _'03 

infant  under  fourteen  years 

minor,  on  application  of.  appointing   130 1 

no    application    on    behalf    of    minor,    ap- 
pointing      I  j(;S 

Guardianship  of  idiots  and  lunatics 

asylum,  confined  in  at  expense  of  county,  grant- 
ing        1318 

asylum,  confined  in  one  year,  grantini;   1.^15 

inquest  in  chancery,  after,  granting  1310 

Heirs  and  devisees,  proceedings  by  to   prevent  sale  of  lands 
for  debts 

adjourning   hearing    khjj 

amount  of  bond,  fixing .-. ■. lOQo 

approving  bond .'. ....'.:... 1002 

prosecution  of  bond,   for   1004 

sale   of   lands,   directing    io<;0 

Insolvent  estates 

account,     allowing     and     ordering     distribution     oi 

estate   ^ 11 36 

distribution,  decree  ordering  and  allowing  account  ..    1136 

exceptions  to  report  of  claims  and  assets,  on 1 147 

extension  of  time  for  presentation  of  claims,  for.  ...    1155 

insolvency,  decreeing   1 14^ 

notice  to  creditors,  directing 114^^ 

report  of  claims,  fixing  time  for  making  wiien  rule 

to  limit  taken    IMJ 

rule  to  limit  taken,  when,  fixing  time  for  making  re- 
port of  claims   '  M- 

sale  of  lands 

county  other  tlian  tliat  in   which  i  sl.itc  decried 

insolvent,  situate  in.  for 1 151 

ordering    '  M'*^ 

Inventory,  citation  to  file,  directing  Surrogate  to  issue 1050 

Investments,  instructing  as  to '-5o 

Lands  of  decedent 

exchange  of,   confirming    '  '37 

sale  of.  see  Sale  of  Lauds  anrl  Salr  of  I.ainh  for  nrbts. 
lliis  title  infra. 

Legacy,  ordering  payment  of  '-'.^.^ 

Letters  testainentary,  granting  to  co-executor  g47 

Lost  will,  admitting  to  ])rol)atc   'J7'> 


1426  Probate  Law  and  Practice. 

ORDERS  AND  DECREES— Con//»»rrf. 

Money  paid  into  court,  directing  payment  of  to  person  entitled  1246 
Probate  of  wills 

caveat   against,   when    962 

admitting  will  to  probate 962 

denying  probate  of  will   964 

doubts  on  face  of  will,  admitting  will  to  probate  when  960 

Surrogate,  by,  admitting  will  to  probate  941 

Prosecution  of  bonds  of  executors,  etc. 

leave  to  prosecute,  granting  1038 

assessment  of  damages  on   prosecution   of   bond, 
see  this  title  supra. 

Publication,  of,  against  absent  party  1 184 

Refunding  bond,  authorizing  barred  creditor  to  sue  upon  ....  1066 

Releasing  surety  from  further  liability ion 

Removing  executor,  etc 1 179 

Sale  of  lands 

administrator  c.  t.  a.,  by,  confirming  1130 

guardian  by,  directing   1304 

insolvent  estates,  ordering   1 148 

private  sale,  at,  confirming  1 1 17 

public  sale,  at,  confirming   1113 

report  of  sale,  directing  service  of  notice  upon  non-resi- 
dents of  intention  to  make   1 109 

Sale  of  lands  for  debts 

county,  in  other  than  where  letters  issued,  directing  ....  1104 

directing  sale   1086 

county   in   other  than   that  in   which   letters  is- 
sued      1 104 

judgment  against  heir  or  devisee,  directing  payment  of 

from  surplus  proceeds   1122 

Substitutionary  administration,  granting   992 

Substitutionary  administrator  c.  t.  a.,  appointing  997 

Sureties 

discharging  after  administration  completed 1015 

discharging  on  executor,  etc.,  giving  reduced  bond  . .  1022 

releasing  from  further  liability  loii 

separate  security,  directing  principal  to  give  to   ....  1018 

Surrogate,  of.  setting  aside   1340 

Testimony  of  non-resident  witnesses 

foreign  will,  to,  commission  to  take,  for Ii6r 

interrogatories,  upon,  commission  for   1 168 

will,  to 

authorizing  master,  etc.,  to  take 1165 

commission  to  take,  for   1 158 

Trustees,  appointing  1231 


Index  of  Forms.  14J7 

ORDERS  AND  B-ECREUS— Continued. 

Will  contest,  trial  of  before  jury 965 

admitting  will  to  probate  971 

framing  issue    i>6S 

Wills,    see   Discoz-ery   of    Wills.    Lost    ]i'ills   and    Probate    of 
IVills,  this  title  supra. 

ORDER  TO  LIMIT  CREDITORS— See  Barrin.^  Creditors. 

ORDER  TO  SHOW  CAUSE— See  Rulrs  to  Shozc-  Cause. 

PAYMENT  OF  MONEY  INTO  COURT— 

Affidavit  on    1243 

Order  directing  payment  of  money  to  person  entitled 1246 

Petition  for  money  by  person  entitled  1245 

Receipt  of  Surrogate  on   1244 

PETITIONS— 

Accounting   1 187 

citation,  requesting  Surrogate  to  issue  to  compel  .  1220 

co-executors,  between,  to  require   1216 

executor,  administrator  or  guardian,  by,  on 1188 

second  or  other  accounting 1 189 

Orphans'  Court,  to,  to  require  1223 

Surrogate,  to.  requesting  report  of  neglect  to  file  1222 

trustee's  first  account,  on   l  igi 

separate  trust,  in  case  of   1195 

subsequent    account    i  lo.l 

Administration 

next  of  kin,  by.  for  977 

next  of  kin  neglect  to  apply,  when  t")85 

non-resident,  upon  estate  of,  for 

administrator   appointed    in    for- 
eign state,  by   i(X)i 

creditor,   by    1002 

Administration  c.  t.  a.,  and  probate  of  will,  for 948 

Adoption  of  minors,  for 

abandonment  of  child,  in  case  of 1320 

parent's  consent  obtained,  when    1327 

surrender    of    child    to    Children's    Aid    Society,    in 

case  of   13.U 

Appeal 

administration,  from  grant  of  by  Surrogate   i,14,l 

dismissing,  for  order   1,^50 

Orphans'  Court 

account,  from  decree  on   1355 

probate  of  will  by,  from  1353 

probate  of  will  by  Surrogate,  from  1343 

Assessment  of  damages  on  bond  of  executor,  etc.,  for  1041 


1428  Prouate  L,aw  and  Practice. 

PETITIONS— Co;//n/»r^. 

Barred  creditors 

payment  of  claim  of,  for 

unaccounted  for  assets,  from   1071 

undistributed  assets,  from    io6g 

suit  on  refunding  bond,  for  order  authorizing  1065 

Co-executor,  by, 

accounting  witli  co-executor,  for 1216 

bond,  to  require  co-executor  to  give 103 1 

letters  testamentary  after  probate  of  will,  for   .  .  946 

Contempt,  for  order  holding  executor,  etc.,  in   1247 

Contracts  of  decedent  for  sale  of  land,  for  fulfillment  of   ....  1123 

Decree  of  Surrogate,  to  set  aside  1338 

Deposited  securities,  to  obtain    1025 

Deposit  of  securities,   for  order   directing  and  fi.xing  amount 

of  bond   1023 

Devisees,  see  Heirs  and  Dcz'isccs,  this  title  infra. 

Discharge  of  executor,  etc.,  for   1176 

Discovery 

assets  of  estate,  executor,  etc.,  by,  for 1077 

condition  of  estate  in  hands  of  executor,  etc.,  of,  for  1073 

will,  of,  for   1080 

Distribution 

intestate's  estate,  of,  for  decree  of   1232 

will,  in  case  of,  for  decree  of 1236 

Distributive  share,  for   1254 

Exchange  of  lands  of  decedent,  for 1133 

Executor,  to  require  to  give  bond   1028 

Exemption  for  family,  appraisers,  for  appointment  of   1053 

Foreign  wills,  for  probate  of 955 

Guardians  ad  litem,  for 

infant  over  fourteen  years 

infant,  on  application  of   1299 

no  application  on  behalf  of,  when  1294 

infant  under  fourteen  years 

minor,  on  behalf  of  1301 

no  application  on  behalf  of  minor,  when  ...  1297 
Guardianship 

absconding  parent,  for  child  of 1290 

estate  of  minor  child,  whose  father  is  living,  for  1270 

next  of  kin  absent  or  non-resident,  where,  for  .  1287 
non-resident  minors 

orphan  over  fourteen,  by,  for   ....  1278 
removal    from    state    of    property 

of,   for   1283 

special  guardianship   on   estate   of, 

for  1280 


Index  of  Forms.  1429 

PETJTIOXS— Co;//nu/.-(f. 

Guardianship — Continued. 

orphan  over  fourteen,  of.  for  ...  1  JOo 
orphan  under  fourteen,  of.  for 

mother,  by    ij6j 

next  of  kin,  by  IJ65 

sale  of  ward's  lands  by  guardian,  for 1302 

testamentary,   for    1272 

Guardianship  of  idiots  and  lunatics,  for 

asylum,  confined  in  at  expense  of  county,  where  1316 

asylum,  confined  in  at  least  one  year,  when  ....  1311 

inquest  in  chancery,  after   1309 

Heir  at  law  or  devisee,  by,  to  prevent  sale  of  lands  for  debts  .  1088 
Insolvent  estates 

extension  of  time  to  present  claim,  for  1 15J 

insolvency,   for 1 139 

rule  to  limit  taken,  when   1141 

rule  to  limit  taken,  when,  insolvency,  for  decree  of  .  1141 
sale   of   land   situate   in   county   other   than   tiiat   in 

which  estate  decreed  insolvent,   for   1150 

Inventory 

failure  to  file,  requesting  Surrogate  to  report   1057 

Investments,  for  directions  as  to 1257 

Lands  of  decedent 

exchange  of,  for  1 133 

sale  of,  see  Sale  of  Lands  and  Sale  of  Lands  for  Debts. 
this  title  infra. 

Legacy,  suit  for,  in   i  J50 

Letters  testamentary,  for,  by  co-cxecutnr  after  i)rol)ate  of  will  046 

Lost  wills,  for  probate  of   973 

Money  paid  into  court,  for   1245 

Probate  of  wills,  on   937 

certificate  for  trial  l)efore  jury,  for  965 

lost  will,  for  073 

Probate  of  will  and  administration  c.  t.  a.,  for 04S 

Prosecution  of  bond  of  executor,  etc.,  for  leave  for 

creditor,   by    1036 

next  of  kin,  by   1035 

Reduction  of  bond,  for 1020 

Refunding  bond,  suit  upon  by  barred  creditor,   for  order  au- 
thorizing      1065 

Release  of  surety  from  further  liability,  for  ioix> 

Removal  of  executors,  etc.,  for 1 170 

Sale  of  land 

administrator  c.  t.  a.,  by,  for  II. iilinn.-iii.  .11  (if   1127 

guardian,  by.  for  order  for  .  i.V>-' 


1430  Probate  Law  and  Practice. 

PETITIONS— Co;;//;a/rrf. 

Sale  of  land — Continued. 

service   of   notice   of   intention   to   make   report   on   non- 
residents, for  order  directing  manner  of  1107 

Sale  of  lands  for  debts 

county,  in  other  than  that  where  letters  granted,  for  ....  1102 

executor,  etc.,  by,  for  1083 

executor,  etc.,  by,  when  heir  neglects  to  pay  debts 1094 

heir  or  devisee,  by,  to  prevent  1088 

judgment  creditor,  by,  for   1099 

judgment  creditor  of  heir  or  devisee,  by,  for  payment  of 

judgment  from  surplus  proceeds   1120 

lands  in  county  other  than  that  where  letters  granted  . .  .  1102 

Substitutionary  administration,  for   991 

Substitutionary  administration  c.  t.  a.,   for   995 

Surety,  by 

discharge,  for,  after  administration  completed lOil 

release  of  from  further  liability,  for   1009 

security,  that  principal  give  separate  to   1016 

Surrogate,  decree  of,  to  set  aside   1338 

Testimony  of  non-resident  witnesses 

foreign  will,  to,  commission  to  take,  for  I160 

interrogatories,  upon,   for  commission   1 166 

will,  to 

authorization  of  master  to  take,  for 1164 

commission  to  take,  for   1 157 

Trustees,  appointment  of,  for   1229 

POWER  OF  ATTORNEY— 

Non-resident  executor,  etc.,  from  944 

acknowledgment  of   945 

PROBATE  OF  WILLS— 

Adjudication  of  doubts  on  face  of  will  958 

Administration  c.  t.  a.  and  probate  of  will 

bond  of  administrator  c.  t.  a 952 

letters   of    954 

oath  of  administrator  c.  t.  a 954 

order   granting    951 

petition    for    948 

renunciation   of   executorship    950 

Appeal  from  by  Surrogate,  see  Appeals. 

Caveat  against    961 

citations    962 

order  admitting  will  to  probate  962 

denying  probate  of  will    964 


Indkx  ok  Forms.  1431 

PROBATE  OF  WILLS— Conlinucd. 

Circuit  court,  trial  of  in.  see  Jury.   Trial  of  Before,  this  title 

infra. 
Depositions 

foreign  witnesses,  of,  see  Testimony  de  bene  esse. 

subscribing  witnesses,   of    938 

Doubts  on  face  of  will,  where 958 

adjudication  of   958 

citation 959 

decree  admitting  to  probate   960 

Foreign,  of   955 

deposition   of   witnesses   to,   see    'J'estiiiioiiy   de   bene 
esse. 

order  admitting  to  probate  957 

petition   for    955 

Jury,   trial  of  before    965 

certificate  for  trial    966 

certificate  of  judge  of  circuit  court  970 

decree  admitting  will  to  proliate   971 

order  framing  issue   968 

petition   for  certificate    965 

Letters  testamentary   945 

order  granting  to  co-executor  after   947 

Lost  wills   973 

order  admitting  to  probate  976 

petition  for  probate  973 

Oath  of  administrator  c.  t.  a 954 

Oath  of  executor  942 

Order  denying  probate 

appeal,   on    * 1346 

caveat,   on    9^4 

Order  for  probate  94' 

appeal,  upon   1 349 

caveat  filed,  when  9^2 

doubts  on  face  of  will,  where  958 

Petition  for   937 

lost  will,  of  973 

Renunciation  of  executor  95" 

Signature  of  testator,  proof  of  939 

Subscribing  witness 

deposition  of  'M^ 

foreign  witness,  sec  Tesliiiioiiy  de  bene 
esse. 

proof  of  signature  of   040 


143-  Probate  I^avv  a.\d  Practice. 

PROCESS— 

Citation,  general  form  of   1180 

Notice,  general  form  of   1181 

Rule  to  show  cause,  general  form  of  1180 

Service  of 

non-residents,  upon   1 183 

appointment  b}-  Surrogate  of  person  to 

serve    1183 

proof   of  service    1183 

publication,    by    1 184 

notice  to  alisent  parties   ..  1185 

order  of  publication    1184 

proof  of  inquiry  and  mail- 
ing       1 186 

Subpoena 

Orphans'  Court,  to  testify  before  1182 

Surrogate,  to  testify  before   1 182 

PROSECUTION  OF  BONDS— 

Assessment  of  damages  ^  .,.,<>,-(.-. 1041 

exceptions  to  report 1046 

master's   report    1044 

exceptions   to    1046 

order  assessing  damages    1048 

order  confirming  master's  report  and  establishing 

amount  of  damages   1046 

order  of  reference   1044 

order  to  confirm  report  nisi   1045 

order  to  show  cause  1043 

petition* " 1041 

Bond  for  costs  of  suit  1039 

Exceptions  to  master's  report  of  assessment  of  damages   ....    1046 

Master's  report  of  assessment  of  damages   1044 

exceptions  to   1046 

Orders 

assessing  damages    1048 

confirming  master's  report  nisi  1045 

confirming  report  and  establishing  amount  of  damages  1046 

prosecute,  giving  leave  to  1038 

referring  assessment  of  damages  1044 

to  show  cause  on  assessment  of  damages  1043 

Petition 

assessment  of  damages,  for  1041 

leave  to  prosecute,  for 

creditor,  liy   1036 

next  of  kin,  by  1035 

Rule  to  show  cause  why  damages  should  not  be  assessed 1043 


Index  of  Forms.  143 > 

REFUXDIXG  BOXDS— 

Legatees.  1)\    

*=  ■  I  _'40 

Xext  of  kin.  by ^ 

Suit  on  by  barred  creditor  ,^. 

order  autb^rizing 1066 

petition  for  order  authorizing   ,,„,; 

RELEASES— 

Distributee,  liy    ,      , 

Legatee,    by    1 

Ward,  by,  to  guardian   ,  , , , 

REMOVAL  OF  EXECL'TORS,  ETC.— 

Xotice  of  application    ,  ,g, 

proof  of  service  of   i^, 

Order  removing  , ,  _ 

Order  to  show  cause  , ,  -y 

Petition ,,1(^ 

REX'UNCLA.TIOXS— 

Administration,  of,  next  of  kin,  Ijy   1^7,) 

Executor,  bv    ,,-,, 

i},->t* 

Guardianship,   of    ,  ,(,- 

RULES  TO  SHOW  CAUSE— 

Accounting 

co-executors,  to  require  between   ijiS 

Orphans"  Court,  on  appHcation  to,  to  re(|uirf   ....  ij_>6 

Contempt  proceedings,  in    1  _>^,, 

Discovery   as    to   condition    of    estate    in    lKln(l^    of    txi-rutor, 

etc..    on    ,073 

Executor 

bond,  t(j  require  from  ' lojij 

co-executor,  to  require  account  with  1218 

to  require  to  give  l)C)nd  to   1033 

Form  of,  general   1 1,»<,, 

General  form  of  1  i,<l,, 

Insolvent  estates 

extension    of    tiim-    to    present    claims,    on    applici- 

tion    for    1 1 54 

Lands  of  decedent 

exchange  of.  on  application   for  order  autliorj/iii'.  ;fi 

Removal  of  executor,  etc.,  on   1  i-S 

Sale  of  lands  for  debts 

executor,  etc.,  upon  petition  of   loXt, 

judgment  creditor,  upon  j)ctition  of  1  kxj 


1434  Probate  Law  and  Practice. 

RULES  TO  SHOW  CAUSE— Continued. 

Surety 

discharge,    for,   after   administration   completed    1013 

separate   security,   on   application   to    require    principal 

to  give  to 1017 

Surrogate,  to  set  aside  decree  of 1339 

SALE  OF  LANDS— 

Administrator  c.  t.  a.,  by 

bond  on  952 

confirmation    of 1 127 

notice  of  intention  to  apply  for  ..    1107 
service    of    upon    non-resi- 
dents, 
order      designating 

method  of   .  . .   1109 
petition  for 
order 
designat- 
ing meth-  , 
od  of   . .    1 107 

order  confirming   1130 

petition   for    1 127 

afifidavits  annexed  to  ....    11 12 

deed    1131 

Confirmation  of 

private  sale,  when  sold  at.  see  Private  Sale,  this 

title  infra, 
public  sale,  at,  see  Judicial  Sales. 

Deed  for,  sold  at  judicial  sale  1 1 14 

private  sale    1 1 18 

Guardians,  by,  see  Guardians. 
Private  sale,  at 

order    confirming    1 1 17 

report  of  sale  1 1 15 

affidavits  annexed  to  1 1 12 

notice  of  intention  to  make   1 107 

service  of  upon  non-residents 

order  designating  manner  of   .  . .    1109 
petition     for     order     designating 

manner  of    1107 

SALE  OF  LANDS  FOR  DEBTS— 
Bond 

executor,  etc.,  on   1087 

heir  or  devisee,  by,  to  prevent  sale  1091 

order  fixing  amount  of    1091 

approving,  and  adjourning  hearing 1092 

for  prosecution  of    1096 


Index  of  Forms.  143; 

SALE  OF  LANDS  FOR  DEBTS— Contunwd. 

Citation  to  executor,  etc..  to  testify   noj 

Demand  on  heir  or  devisee  loq 3 

Executor,  etc.,  on  petition  of 

bond  by  executor,  etc 1087 

conduct  of  sale,  see  Sale  of  Lainis. 

decree  for  sale   1086 

order  to  show  cause   " 1081; 

posting,  proof  of   1062 

publication,  proof  of  1062 

petition   ,083 

Heir  or  devisee,  proceedings  by  to  prevent  sale 1088 

bond  by  heir  or  devisee  logi 

demand  on  for  payment 100  ^ 

notice  to  of  application  for  prosecution  of  l)oncl  1093 

order  approving  bond  and  adjourning  hearing iot)2 

order  fixing  amount  of  bond   logo 

order  for  prosecution  of  bond  or  sale  of  lands  in  default 

of  payment  by  heir  1096 

petition  by  heir  or  devisee   1088 

petition    by   executor,    etc..    for    relief,    heir    refusing   to 

pay,  when   io<)4 

Judgment  creditor  of  heir  or  devisee 

order    directing    payment    of    judgment    from    sur- 
plus proceeds  1122 

petition    by    for    payment   of    judgment    from    sur- 
plus proceeds  1 1  _»o 

Judgment  creditors,  on  petition  of  kx>S 

citation  to  executor,  etc..  to  testify   1 102 

notice  to  executor,  etc..  to  sell  lands  looS 

order  to  show  cause   ' 1 100 

posting,  proof  of   io6j 

publication,   proof  of    1062 

petition  by  judgment  creditor   i()0<) 

Judicial  sale,  at,  see  Judicial  Salrs. 

Lands  in  county  other  than  where  letters  granted 1 102 

order  for  sale    1 104 

petition    i  lo-' 

Notice,  heir  or  devisee  to,  of  application   for  jirosecution  nf 

bond    HXM 

Order  for  sale io.9() 

lands  in  county  other  tiian  wiu-re  lettrrs  granted 1 104 

Order  to  show  cause !<>•*<.=; 

judgment  creditor,  an  ai)pIication  of   .                    i  loo 

posting,  proof  of   kXu 

publication,   proof  nf    iiK)2 


1436  Probate  Law  and  Practice. 

SALE  OF  LANDS  FOR  D'EBTS— Continued. 

Petition 

executor,  etc..  by   1083 

bond  by  executor,  etc..  on  1087 

decree  for  sale   1086 

order  to  show  cause   1085 

posting,  proof  of   1062 

publication,   proof   of    1062 

heirs  or  devisees,  by,  to  prevent  sale   1088 

judgment  creditor,  by    ' logQ 

lands    in    county    other    than    where    letters    granted, 

where    11 02 

Private  sale,  at,  see  Sale  of  Lands. 
Public  sale,  at,  see  Judicial  Sales 

SUBSTITUTIONARY  ADMINISTRATION— See  also  Admin- 
istrators and  Administration. 

Bond  on  grant  of .,, 999 

Letters  of   -r 994 

Notice  of  application,  see  .Idministration. 

Oath  of  administrator , 993 

Order  granting !' 992 

Petition   for 991 

Renunciation    , 979 

SUBSTITUTIONARY   ADMINISTRATION  c.   t.  a.— See  also 
Administrators  and  .Idministration. 

Bond   of    999 

Letters  of   ■ 1000 

Notice  of  application,  see  Administration. 

Oath  of  administrator   998 

Order  granting   997 

Petition   for 995 

Renunciation    979 

SUITS  FOR  LEG.ACIES  AND  DISTRIBUTIVE  SHARES— 

Distributive  share,  for 

answer    1253 

citation    1252 

decree  for  payment  of   ' 1256 

petition 1254 

Legacy,  for 

answer   1253 

citation     1252 

decree  for  payment  of   1253 

petition   1250 


Index  of  Forms.  T43/ 


SURROGATE— 


Appeals  from  decree  of.  see  At^trals. 

Appraisers,  appointment  of  hy •  •  •••:  •  •  •  •  '^'54 

petition   for   1053 

Certificate  by  that  no  caveat  has  been  filed 1040 

Citation  to  account,  petition  requesting  issue  of 1220 

Decrees  of 

appeals  from,  see  Aj^pcaly. 

proceedings  to  set  aside  I3.^^ 

order  setting  aside    1340 

order  to  show  cause   133Q 

petition     133^ 

Subpcena  to  testify  before 1 1^- 

SURETIES— 

Discharge  of  after  administration  completed 

order  discharging  if"? 

petition  for   ^f^i ' 

reduction  of  bond,  order  discharging  on   filing  re- 
duced bond   "^-- 

release  of  from  further  liability,  sec  this  title  infra. 

rule  to  show  cause  ^'^'3 

Justification   of    '^-'3 

Order 

directing  principal  to  give  separate  security  to  surety  ..  lOiS 

directing  principal  to  account  with  surety   loif^ 

discharging  sureties  on  giving  reduced  bond  1022 

releasing  surety  from  further  liability mi  i 

Order  to  show  cause 

discharge  of  after  administration  completed   101,^ 

principal  on  bond  should  not  give  security  to  surety,  why  1017 
Petition  by 

discharge  of  after  administration  crimpleted.    for    ...  loil 

release  from  further  liability,  for  i"'>'i 

separate  security  from  principal,   for    ...  i"'^' 

Release    of    from    further   liability    '*^>^ 

citation  to  executor,  etc "^'" 

order   releasing   surety    "^" 

petition    .^ '""^'^ 

Security  to  by  principal  on  bond   ""^' 

bond  by  principal  to  surety  '""' 

order  directing  principal  to  account  to   ..  loiS 

order  directing  princii)al  to  give  security  t<i  ioi>^ 

.order  to  show  cau^e ""' 

petition    """• 


1438  Probate  Law  and  Practice. 

TESTIMONY  DE  BENE  ESSE— 

Commission  to  take  deposition  of  witnesses  to  will,  see  Wit- 
nesses to  Will,  this  title  infra. 

Interrogatories,  upon    1 166 

commission   xi68 

directions  for  execution  of  commission 1171 

interrogatories  on  probate  of  will   1169 

order  for  commission   1168 

■*  petition  for  commission  1166 

return  of  commission  1 173 

Witnesses  to  will,  non-resident 

authorization  of  master,  etc..  to  take  1 164 

order    1 165 

petition   1 164 

commission,  by   1 157 

commission  to  take  II59 

foreign  will,  to    1 160 

commission   to  take    1162 

deposition   of   witnesses    1163 

order  for  commission   1161 

petition  for  commission    1160 

return  of  commission    1 160 

order  for  commission   1 158 

petition    1 157 

return  of  commissioner    1160 

TRUSTEES— 

Appointment  of  by  court •. 1228 

bond  of   1232 

decree  appointing 123 1 

notice  of  application   1228 

petition  1229 

Discharge   of,    see    Discharge   of  Executors,   Administrators, 

Guardians  and  Trustees. 
Discovery  as  to  condition  of  estate  in  hands  of,  see  Discovery 

ProKeedings. 
Non-resident 

power  of  attorney  from   944 

acknowledgment  of   945 

Removal    of,     see    Removal    of    Executors.    Administrators. 
Guardians  and  Trustees. 

WILLS— See  also  Probate  of  Wills. 

Codicil  to   1360 

Decree  of  distribution,  see  Distribution. 

Discovery  of,  proceedings  for.  see  Discoz'ery  Proceedings. 

Doubts  on  face  of,  see  Doubts  on  Face  o.f  Will. 


Index  of  Forms.  1^39 


WILLS— Co  lit  in  It  cd. 


1360 


Income  to  wife  for  life  w  itli  privilege  of  using  principal,  with 

remainder  over  

Simple  form  of    I  ,-g 

Trust  for  life,  creating,  with  remainder  over  at  death 1359 

Trust  for  wife  for  life,  with  remainder  over 1359 

Witnesses  to 

depositions  of.  see  Probate  of  Wills. 

foreign  witnesses,  of.  see  Tcsiiinony  d^ 
bene  esse. 


92 


GENERAL  INDEX. 


ACCOUNTING— 

Allowance  of,  by  court 641 

notice  of  settlement  necessary  t)46 

Allowances  to  accountant  639 

claims  not  actually  paid 630 

exemption  for  widow  and  children   040 

loss  and  depreciation  of  assets  O40 

AppeSl  from  decree  allowing  (^73 

matters  considered  on   O73 

only  items  excepted  to  will  he t)64 

only    those    mentioned    in    i)etition    nf    ap|)eal 

will  be  073 

questions  raised  in  court  below  only  will  be  .  .  674 
respondent    may    specify    objectiona))le    items 

in  his  answer   O73 

Audited  by  surrogate,  to  be   'J41 

method  of  auditing  account   fJ4- 

object  of  audit  by  surrogate   043 

vouchers   •  • ')4-2 

checks  as  vouchers  t»4J 

inspection  of  vouchers  liy  interested  persons  642 

lodged  with  surrogate,  to  be  ')4- 

Chancery,  jurisdiction  of  to  order   O31 

concurrent  jurisdiction  with  Orphans'  Court,  has  .  .  ()3i 

disinclined  to  accept  jurisdiction    (\^^ 

when  Chancery  will  accept  jurisdiction       (t.^,] 

Charges  against  accountant t\l7 

inventory    f'37 

cliargeable  with  am<iunt  i>f  ()37 

evidence  to  r>vercome    405.  (>37 

where  full  amount  of  not  realized  63H 

liersonal  assets  of  estate,  see  .Isscts. 

Citation,  issue  of  on  filing   '>45 

guardians'  final,  necessity  for  ...  <>45 

intermediate,  may  issue  ..ii   045 

trustees',  final,  necessity  for  'M.'i 

intermediate,   may   issue  nii  045 

Citation  to  account    ^*-- 

account  filed  pursuant  to.  must  In-  noticed   for  Mellle- 

ment  '*-^/" 

costs  on ''-'> 

payable  by  accountant.   wIk  11  '>.'o 

144I 


< 


1442  Probate  Law  and  Practice. 

ACCOUNTING— Co»/;»wr</. 

Citation  to  account — Continued. 

defenses  on  return  of   622 

expenditures    for   benefit   of   legatee   no   de- 
fense     623 

disputed  claims  outstanding  no  defense,  when   623 

nature  of  proceeding  622 

procedure,  outline  of   864 

remedies  where  citation  is  not  obeyed 630 

attachment  for  contempt    630 

imposition  of  costs  and   forfeiture  of  com- 
missions      631 

removal  of  executor,  etc 630 

Co-Executors,  etc.,  between   422 

notice  of  application    422 

ordered,  when  will  be   422 

proceedings  to  compel   422 

Co-Executors  and  Administrators,  of  649 

liability  of  each  when  joint  649 

Costs  on.     See  Costs  and  Counsel  Fees. 

Costs  on  citation  to  file   629 

payable  by  accountant,  when   620 

Decree  allowing  646 

balance  due  accountant,  where  647 

final  accounts,  on   647 

conclusiveness  of    648 

effect  of  decree   647 

what   constitutes    648 

guardians'   intermediate    649 

effect  of    649,  656 

opening  and  setting  aside  656 

opening  and  setting  aside   650 

appeal  lies  from  order   660 

application  on   657 

when  must  be  made  658 

effect  of  opening  decree   659 

fraud  or  mistake,  for   652 

improvidently  entered,  when   654 

jurisdiction  of  Orphans"  Court  652 

notice  of  application 659 

Discharged  personal  representative,  guardian  or  trustee,  by  .  .  619 

Duty  of  executors,  etc..  to  keep 668 

carelessly  kept,  doubts  resolved  against  accountant,  wlien  668 

Duty  to  account   616 

account  to  be  filed  at  expiration  of  one  year 616 

court  mav  extend  time   6t6 


GeNEKAI,    l.NDKX.  1443 

ACCOUXTIXG— Ci);;/i/;/u-(/. 

Duty  to  account — Coiiliiiiicd. 

executor,  tenant  for  life,  wlun   017 

guardians"   and  trustees'   intermediate  accounts,   duty 

to   file    010 

guardian  of  pensioner  O17 

statutory  provisions  directory   f t)i6 

Exceptions   to    0(x) 

costs  and  counsel  fees  on 671 

appeal  lies,  from  decree  allowing   674 

costs    charged    against    accountant    person- 
ally, when   '  '7 1 

counsel  fees  O72 

accountants   chargeable    with,    when  07J 

amount  allowed O72 

some   exceptions   sustained   and    some  Over- 
ruled, when    672 

form  of  exceptions  O63 

grounds  of  exception,  must  state   6O3 

specific,  must  be   (^3 

hearing  on  ^^5 

evidence    ^" 

accountant  may  not  testify  as  tu 

transactions  with  decedent  .  6O7 

burden  of  proof OO9 

charges  against  account- 
ant   669 

matters  of  discharge  . . .  669 

general  rules  of.  applied  OO7 

presumptions  008 

accounts  carelessly  kept, 

when   608 

arising  from  payment  . .  OO9 

vouchers  as  evidence  of  payment  670 

checks  as   O4J 

duty   of   accountant   t<> 

produce   670 

practice  when  account- 
ant unable  t<t  pro- 
duce     070 

examination  of  accountant  066 

practice  on    , 666 

nature  of  proceeding  ^W) 

procedure,  outline  of  . .  •  ^^**> 

inventory,  may  be  filed  to   .^"1 


1444  Pkobate  Law  and  Practice. 

ACCOUNTmG—Coiitiiiucd. 

Exceptions  to — Continued. 

jurisdiction  of  Orphans'  Court  660 

Chancery,  has  all  of  the  powers  of   .  .  660 

estoppel,  may  apply  rules  of  661 

incidental  jurisdiction  of   662 

*              negligence  of  accountant,  in  case  of  .  .  661 

trustees,  over  accounts  of   662 

motion  to  strike  out  665 

when    proper    665 

nature  of  proceeding   666 

procedure,  outline  of   865 

reference  of  to  master 36,  665 

surrogate    36,  665 

reference  to  advisory  master   36,  665 

■'*'                           compensation  of  master   37 

how  appointed    2i7 

stenographer  may  be  employed 2>7 

compensation   of    37 

testimony,  how  taken   2)7 

who  may  except    660,  663 

Executors  of  foreign  will,  by 212 

Ordinary  or  Orphans'  Court  may  require 212 

when  need  not  file 212 

Executor 

deceased  executor.  &c.,  executor  of,  liy  616 

later  will  probated,  when 200 

separate  from  those  as  trustee,  should  l)e  kept   ....  293 

tenant  for  life,  when  617 

Failure  to  tile 

executor,  etc.,  may  be  removed  for  604 

provisions  of  statute  directory  616 

Filed  pursuant  to  citation 

noticed  for  settlement,  must  be 647 

Filed,  when  to  be 641 

Final 

decree   on    647 

conclusiveness  of   648 

efifect  of  decree    648 

guardians,  of,  citations  must  issue  645 

procedure  upon,  outline  of   854 

trustees,  of,  citations  must  issue  645 

what  constitutes   648 

Form  of  account 634 

executors,  administrators  and  guardians,  of  635 


General  Index.  1445 

ACC0V}<TIX(\— Continued. 

Form  of  account — i'ontinncd. 

investments 

changes  in  must  be  set  up  630 

list  of.  to  be  annexed  to   636 

petition  to  be  annexed  to  634 

recitals  of  » 634 

under  oath,  must  be   634 

trustees,  of  635 

allowance  of  moneys  invested,  should  not  pray  636 

under  oath,  to  be   634 

Guardians 

charge    by    guardian     fur    support    of    ward    not 

properly  included  in   641 

intermediate  accounts  of   641 

decree  on  656 

eflfect  of   656 

filed,  when  to  be   616 

notice  of  settlement  of   643 

citation,  may  be  by 645 

service  f)f    645 

opening  and  setting  aside  65C) 

practice  on  application   65^ 

when  to  be  filed  616 

final,  citations  must  issue   645 

service  of  citations   643 

notice  of  settlement  of,  may  be  by  citation 643 

service  of  citation   645 

pensioner  of,  by   617 

transactions  with  ward  after  reaching  age,  not  to 

include  616 

exception  to  rule  (j- 1 

Guardian  of  idiot  or  lunatic 7^- 

appointed  by  Chancellor   7^3 

death  of  ward,  after "83 

duty  of  7*^- 

filed,  how  often  7^- 

representative  of  deceased,  by 7^3 

sanity,  upon  ward's  recovery  of  7^5 

Intermediate 

executors,  administrators  and  trustees,  of.  etTict 

of  decree  on    f'S' 

guardians,  of 

charge    of    guardian    lor    >uppoit    ol 

ward  not  niopciK   iuilinbd  in  ...  0.|i 

decree  on   .  (>\7 

cfTeil   ..i                       650 


1446  Probate  Law  and  Practice. 

ACCOUNTING— C(7»/in»r^. 

Intermediate — Continued. 

guardians,  of — Continued. 

Tiled,  how  often  to  be   616 

notice  of  settlement   645 

citation,  may  be  by  645 

service   of    645 

procedure  upon,  outline  of   862 

trustees,  of 

notice  of  settlement  of    646 

citation,  may  be  by  645 

service  of    645 

Inventory 

accountant  chargeable  with  amount  of 637 

deductions  permitted  from   405 

evidence  sufficient  to  permit  637 
full  amount  of  not  realized, 

when   638 

increases  and  accretions  to   342 

Investments 

list  of  to  be  annexed  to  account  636 

statement  of  changes  in  to  be  annexed  to  account  636 

Notice  of  settlement  of  644 

guardians'  accounts,  of,  may  be  by  citation   645 

service  of  citation   645 

guardians'  final,  citation  must  issue  on   645 

mailing  of  to  sureties  on  bond    644 

persons   in   interest    645 

necessity    for     646 

account  filed  pursuant  to  citation,  on 647 

insolvent  estates   598 

posting  of   644 

publication  of 644 

sufficiency  of    646 

trustee's  final,  citation  must  issue   645 

service  of    645 

Opening  and  setting  aside  decree  allowing  650 

accounts    other   than    guardians'    intermediate    650 

when  will  be  set  aside  650 

for  fraud  or  mistake  only 650 

application,  when  maj'  be  made  658 

Chancery,   jurisdiction   of    655 

discretion,   matters  resting  in    654 

effect  of  opening  decree   _ 659 

fraud    or    mistake,    for    652 

discretion  of  court,  is  in  652 


Genekai.  Index.  1447 

ACCOUXTIXC— t\)»/n;»r(f. 

Opening  and  setting  aside  decree  allowing — c  c/i/ioK.-d. 

guardians'  intermediate  accounts    ....                    656 

practice    (158 

improvidently  entered,  when   (>^4 

intermediate  accounts,  in  case  of   O58 

matters  resting  in  discretion,  to  review O54 

notice  of   application    659 

Orphans'  Court,  jurisdiction  of 65J 

petition    037 

recitals  of    057 

verified,  should  be 05S 

when  application  may  be  made   O38 

Orphans'  Court,  jurisdiction  of  over  41,  bJo 

compel  executor  to  file,  to   42 

complete   as   that   of    Chancery    0_'o 

guardian's  final  account  6jo 

court  may  enforce  payment  of  balance  to 

ward    621 

Petition  to  be  annexed  to   634 

recitals    of    634 

under  oath,  must  be 634 

Preparation  of,  fees  paid  for  not  allowed  408 

Procedure,  outline  of    853 

Proceedings  to  compel    622 

jurisdiction  of  Orphans'  Court  41.  42.  620 

neglect  to  account  for  two  years,  in  case  i>i  ....  622 

court  may  direct  issue  of  citation  O22 

surrogate   required   to    rei)ort    neglect    to 

court   622 

written    request    required    622 

neglect  to  file  for  one  year,  in  case  of  622 

procedure,  outline  of    864 

who  may  take 622 

creditors    624 

laches  of  person  in  interest  no  bar   bJb 

legatees  and  devisees   624 

representative  of  deceased  ward    626 

residuary   legatees    624 

substituted    administrator    625 

sureties  of  jjcrsonal  ref)resentative 625 

Prerogative  Court,  in.     See  I'rcrof/atii'c  Cmivt. 

Procedure,   outline   of    833 

Removed  personal  representative,  gtianlian  or  trustee,  l)y  ..608,  6iy 


1448  Probate  Law  and  Practice. 

ACCOUNTING— Co»/;;;»rrf. 

Report  of  by  surrogate  to  court   641 

exceptions  to  report    643 

nature   of   report 643 

no  appeal   lies   from    644 

Representative  of  deceased  executor,  etc.,  by   618 

Re-stating    ' 659 

method  of    659 

Surrogate  executor  or  administrator,  practice  when  61 

Surrogate's    fees  on    65 

method  of  computing   65 

estate  under  $10,000,  on   65 

over   $10,000,    on    65 

over  $50,000,  on    65 

reduction  of  when  estate  less  than  $200   66 

reduction  of  when  estate  less  than  $500 66 

Trustees 

final,  citation  must  issue  upon   645 

service    of 645 

intermediate   accounts   of    616 

citation    may    issue   upon    645 

filed,  when  to  be  616 

procedure,  outline  of  859 

separate  from  those  as  executors,  should  lie  kept  ....  293 

Unnecessary,  when 619 

administrator  entitled  to  personal 

estate  after  payment  of  delits  ....  619 
person   in   interest   may   re- 
quire     619 

executor  or  administrator  c.  t.  a. 

residuary  legatee  and  filing  releases   . .  619 
person    in    interest    may    re- 
quire     619 

guardian  filing  release  from  ward   619 

trustee  filing  release  from  cestui   619 

\'ouchers    .• 642 

checks   as    642 

duty  of  accountant  to  preserve 642,  670 

inspection  of  by  persons  in  interest 642 

lodged  with  surrogate,  when  to  be  642 

production  of  to   court    670 

practice  when  accountant  unalile  to  pro- 
duce    670 

Who  may  be  required  to  account  626 

executor  entitled  to  estate  for  life 627 

executor,   etc.,   of  insolvent   estate    627 

foreign  executors  and  administrators   ' 628 


Gexeral  Ixnnx.  i44(/ 

ACCOUXTIXC— t",M;/i-;/)(r</. 

Who  may  he  required  to  account — Continued. 

guardians     6jS 

intermediate  accounts   filed,   when 62y 

ADMIXISTRATIOX— See    also   Jdministralors.   B.vcculors   and 
.-idininistrators,  Ciuardiaiis  and  I'nislrcs. 

Absence  from   state   for  seven  years,  in  case  of.  see  .Idniin- 
istratioii  on  Presumption  of  Death. 

Aliens,  upon  estate  of  resident 268 

consul,  right  of  to  _'6}< 

Appeal  from  grant  of.  See  Appeals. 

Bond  required  on  grant  of,  see  Bonds  of  Executors.  .Idininis- 
trators, Guardians  and  Trustees. 
Contests  as  to  right  of.  See  Contested  Administration. 

Consul,  right  to  upon  estate  of  resident  alien 268 

entitled  to  notice  of  application   j6<; 

Death   presumed,   when.   See  Administration   on   Presumption 
of  Death. 

De  bonis  non  abolished  277 

Disputed,  See  Contested  Administration. 

Durante   tninore   setate,    see   Administration    Durante   Minore 
Mtate. 

Durante   absentia,  jurisdiction   to   grant    283 

Grant  of,  effect  249 

effect  of  appeal  upon    So 

jurisdiction   over,    see   Jurisdiction    to    Grant   this   title 

infra    

notice  to  next  of  kin.  withcnit,  void 260 

operates  onl>- within  jurisdiction  where  granted   J50 

vests  title  to  decedent's  personal   property  in  adminis- 
trator         -'4') 

who  entitled  to,  see  JVho  Entitled  to  Letters  this  title 

infra, 
without  notice  to  or  renunciation  by  next  of  kin  void     260 

Heirs  at  law.  when  entitled  to   -'67 

Husband,  right  of   -J()3 

not  exclusive   -?65 

Jurisdiction   to   grant    251 

Ordinary,  of 251 

Orphans'  Court,  of   251 

.Surrogate,  of   251 

nature   of   jurisdiction    252 

Letters  of 

ff;reign    administration,   of,    may    be    recurded    \u    this 

state    257 

issue   of    261 

recorded  bv   Surro).;ate,  to  bf 5^ 


1450  Probate  Law  and  Practice. 

ADMINISTRATION— C"o»/n;;(rrf. 

^Married   women,   right   of   to    267 

ma}-  be  administratrix    317 

husband  may  be  surety  on  bond 317 

Necessity  for    249,  250 

Next  of  kin,  f aiHng  t(j  apply,  when  260 

notice  of  appHcation,   when   required    260 

procedure,  outline  of    815 

renunciation  of  next  of  kin    260 

Next  of  kin,  right  of  to   262 

as  against  a  stranger 265 

considerations  controlling  court  in  appointment   266 

right  purely  personal    265 

Non-resident  •  administrator 

power  of  attorney  required  from,  see  Power  of 
Attorney. 

Non-residents,  residents  preferred  over  262 

Non-resident,  upon  estate  of   252 

assets  within   county  necessary    254 

what  sufficient   254 

contests  as  to  non-residence 253 

determined   by   Surrogate,   to   be    253 

executor    or  administrator  neglects  to  apply  for, 

when    253 

practice    2:53 

jurisdiction  to  grant   252 

notice    of    application    253 

procedure,    outline    of     821 

Notice-  of   application    for    .  ." 258 

failure  to  give,  effect  of   ' 260 

necessity   for    259 

recorded,  to  be    259 

renunciation  may  be  substituted  for   258 

required,    when    258 

service  of  on   non-residents    259 

residents   259 

when   required    258 

Operation   of   grant   of    250 

effective  within  jurisdiction  where  granted  only.  .  .  .  250 

Orphans'  Court,  jurisdiction  over  grant  of   45,  265 

considerations  controlHng  court >.  .  266 

discharge  of  executor,  etc.,  in  case  of  610 

disputes  concerning,  over   41 

majority  of  next  of  kin.  court  not  liound  by  266 
next  of  kin 

accept    appointment    unwilling. 

where  265 

willing,  where  266 


General  Index.  1451 

ADMINISTRATION— roH/ni»n/. 

Orphans'  Court,  jurisdiction  over  sirant  of — Conliitucd. 

probate  of  disputed  will  naming  no  executor. 

on    45 

removal  of  executor,  etc..  in  case  of 610 

request  of  majority  of  next  of  kin.  not  bound 

by    -(^ 

where  next  of  kin  will  accept   ^65 

not  accept   -66 

Particular  purpose,  for   -"3 

jurisdiction    to   grant    -^3 

Pendente  lite,  see  .liiiiiiistratioii  Pendente  Lite. 

Petition   for   -5'^ 

practice   on    -5*5 

trust   company,  by    3^4 

affidavit,  statement  and  certificate  to  accompany  304 

recitals  of    ~^ 

value  of  estate,  affidavit  of  required   -258 

verified,  to  be  258 

writing,  to  be  in   -5' 

when  may  he  made   -5^ 

Prerogative  Court,  in,  see  Prerogative  Court. 

Probate  of   will,  after,  granted    200 

citations  to  issue   -*'° 

Procedure,  outline  of   '  '•" 

Qualification  of  administrator   -°4 

corporation,  by    -"•"• 

origin   of   requirement    -^'*4 

surrogate,   must  lie   taken  before    ~^S 

Renunciation    "•'' 

consul,  by.  upon  estate  of  resident  alien   -W 

form  and  contents  of   ->'^ 

necessity  for  -^'^ 

next  of  kin,  by  • -^\ 

notice  of  application  may  be  substituted  for -'.=;S 

recorded,  to  be    '^^ 

Residents  preferred  over  non-residents   -"- 

Security  required  on  grant  of,  see  Bonds  of  E.veeulors.  .\d- 
ministrators.  Guardians  and  Trustees. 

Special,  jurisdiction  to  grant   : -  -  "  • 

Surrogate  administrator,  when   

Table  showing  who  entitled  to   •  •     'J 

_  jH2,  2X3 

Temporary    •■•••■•-. «_,    ^^ 

jurisdiction  to  grant    -.  -  .1 

Unnecessary,   when    


1452  Probate  Law  and  Practice. 

ADMINISTRATION— Con//;/»rrf. 

Who  entitled  to   262 

consul,  in  case  of   resident  alien    268 

death  act,  claim  under  only  assets,  where   262 

heirs   at    law,    right   of    267 

husband,  right  of   265 

not    exclusive    265 

infants,  right  of   266 

right  of  guardian  of   266 

married  women,  may  l)e   •  .  267 

nexr  of  kin    •  ■ 262 

considerations  controlling  court  in  appointment...  266 

right  of  as  against  a  stranger   265 

right    purely    personal    265 

table  showing  right  of   263 

non-residents,    residents   preferred   over    262 

principles    underlying     262 

'esidents  preferred  over  non-residents    262 

table   showing    263 

where  only  assets  are  claims  under  Death  Act   262 

widow,   right  of    264 

as  against  a   stranger    265 

efifect  of  remarriage  on    264 

not   exclusive    264 

•    wife,  upon  estate  of  wliere  husband  dies  without  taking- 
out  letters  273 

Widow,  right  of  to   264 

as  against   a   stranger 265 

effect  of  remarriage  on   264 

not    exclusive    •  • . .  264 

Will  annexed  with,  see  Administratioii  c.  t.  a. 

Will  probated  after  grant  of    200 

citations  to  issue  200 

ADMINISTRATION  c.  t.  a.— See  also  .■Idiiiiuisfrators  c.  t.  a. 

Ancillary     211 

appointment    of    administrator     211 

jurisdiction   of   surrogate    211 

powers  of  administrators,  see  Administrators  c.  t.  a. 
Bond   of    administrator,    see    Bonds    of  Executors,   Adminis- 
trators, Guardians  and  Trustees. 

Death  of  administrator,  proceedings  upon   277 

Executor   failing  to   prove  will    260,  270 

construction   of   statute    270 

notice  of  application,  when   required    260 

object  of  statute 270 

renunciation  of  persons  in  interest   260 


General  Index.  1453 

ADMINISTRATION  c.  t.  a.—Co„ti,iucd. 

Executor    neglecting    to    apply    tor    letters    testamentary    for 

forty  days    270 

construction  of  statute    270 

notice  of  application,  when  required   260 

object  of   statute    270 

renunciation  of  persons  in  interest   ^60 

Necessary,  when    260,  Jjo 

executor,   predeceases   testator,   when    260,  270 

renounces  or  refuses  to  act  when  260.  270 

testator  neglects  to  appoint  executor  270 

Notice    of    application    for     258,  273 

alien,  upon  estate  of  resident  269 

failure  to  give,  effect  of 260 

necessity  for    259 

recorded,   to   be    259 

renunciation  may  be  substituted  for  258 

required,  when    258 

service  on  residents    259 

non-residents 259 

when  required   258 

Petition   for   274 

affidavit  giving  value  of  estate  to  l)e  annexed  to  ....  274 

presented,   when   may  be    274 

recitals   of    274 

verified,  should  be   274 

Prerogative  Court,  in,  see  Prerogative  Court. 

Procedure,  outline  of   818 

Qualification  of  administrator   274 

Renunciation  by  executor   270 

agreement    to    renounce    271 

efifect    of     270,  271 

implied    renunciation     271 

retraction    of 27^ 

right  of  to   renounce    27 1 

Renunciation  by  next  of  kin   258 

form  and  contents   259 

necessity    for    259 

notice  of  application  ina\  bi-  substituted  for  ....  258 

recorded,  to  be   250 

Residuary  legatee,  right  of  to  -'7- 

who  entitled  after  death  of  -72 

Security   required   on,   see   Bonds   oj    li.mtilors.  .Idiiiiiiistrii- 
tors.  Guardians  and  Trustees. 

Statutory    provisions    •  .260.  270 

construction  of   27^ 

object  of   -70 


1454  Probate  Law  and  Practice. 

ADMINISTRATION  c.  t.  a.— Continued. 

Who  entitled  to   272 

alien  resident,  upon  estate  of 268 

consul  entitled  to  notice  of  application   269 

death  of  residuary  legatees,  after  272 

general  rule,    272 

next  of  kin,  when   272 

residents  preferred  over  non-residents   262 

residuary  legatee,  right  of  272 

death  of,  who  entitled  after   272 

where  no  residuary  legatee   272 

ADMINISTRATION  DURANTE  ABSENTIA— 

When    granted    283 

bond  required  on  grant  of   283 

jurisdiction    to    grant    282 

AD^riNISTRATION  DURANTE  MINORE  .ETATE— 

Bond  required  on  grant  of  283 

Defined    283 

Granted,    when 283 

Jurisdiction  to  grant • 282 

When    granted     283 

ADMINISTRATION  PENDENTE  LITE— 
Administrator 

allowed  amount  of  legacy  improperly  paid  ....  288 

bond    of    310 

order  fixing  amount  of  not  appealable.  .  .  .  289 

duration   of   appointment    288 

legacy,  paid  by,  will  be  allowed  amount  of .  .  .  .  288 

officer  of  court,  is    286 

powers  and  duties  of.  see  Powers  of  Adniinis- 
trator  this  title  infra 

removal   of    289 

selection  of    286 

discretionary  with  court    286 

executor,  when  will  be  appointed   ....  286 

principles  governing   286 

Appeal  from  grant  of   • 289 

amount  of  security  required  not  appealalile  289 

question  of  necessity  for,  appealable 289 

selection  of  administrator  not  appealable   289 

Application  for  285 

notice  of   285 

court  may  dispense  with   285 

petition,  by  285 

recitals    of    285 

verified,  to  be  28^ 


General  Index.  145; 

ADMINISTRATION    PENDENTE    UTF.-Covtlnurd. 

Bond  required  from  administrator   310 

ord^r  fixing  amount  of,  not  appealal)le                        .....  j8q 

Court  may  grant  on  own  motion   285 

Duration  of  appointment   288 

powers  terminate  with  litigation   288 

are  revived  hy  appeal   289 

Duties  of  administrator 287 

collect  assets  of  estate,  to  287 

when  litigation  terminated  2S7.  289 

Jurisdiction   to   appoint    284 

Necessary,    when    284 

appeal  lies  from  determination  that  289 

Notice  of  application    285 

court  may  dispense  with   285 

Powers  of  administrator   287 

actions,  may  maintain  287 

bind  estate  by  settlement,  may  288 

collect  debts,  may   287 

distribute,  may  not   288 

general    powers   of    administrator   except    as    to    dis- 
tribution      287 

legacies,    may    not    pay    288 

allow^ed  for,  improperly  paid,  when  288 

sale  of  property  of  estate  288 

settlement,   may   bind   estate  by    288 

sued,  may  be  2S7 

terminate  with  litigation   288 

revive  on  appeal    289 

Removal  of  administrator  ■ 289 

Security  required  from    310 

Who    entitled    2f^6 

when  executor  will  be  appointed   286 

ADMINISTRATION  ON  PRESUMPTION  OF  DEATH— 

Absent  persftn.  re-appearance  of.  proceedings  upon   jHj 

Administrator 279,  jHi 

appointed,  when  will  be   270.  2S1 

bond  of,  see  Bonds  of  lixccutnrs.  .  Itliiiiiiistrnt- 
nrs.  Guardians  tind  Trusti-t'S. 

distribution  of  estate  by  282 

bond  with  projier  sureties,  to  take  282 

duties   of    28 1 

Bond  on  grant  of,  See  Bonds  of  lixrcutois.  .Idntinislriilors. 
Guardians  and  Trustees. 

Distribution   of   estate    282 

administrator  tr)  take  bond  witii  sufficient  sureties  282 

93 


1456  Probate;  Law  and  Practice. 

ADMINISTRATION  ON  PRESUMPTION  OF  DEATH— Co»- 
tinued. 

Non-resident  leaving  personal  property  in  this  state  absenting 

himself  from  abode  for  seven  years   281 

application    for    281 

jurisdiction   to   grant    .' 281 

letters  granted,  when   281 

rule  to  show  cause   281 

publication  of   281 

when   returnable    281 

Procedure,   outline   of    82^ 

Re-appearance  of  absent  person   282 

proceedings   upon    282 

Resident  absenting  himself  for  seven  years  279 

application   for    279 

dead,  may  be  decreed   280 

effect   of    decree    280 

jurisdiction  to  grant    279 

letters  granted,  when    280 

rule  to  show  cause   279 

publication  of   279 

when  returnable   279 

ADMINISTRATORS— See  also  .Idininistratioii,  and  for  matters 

common  to  executors  and  administrators,  Executors  and  Ad- 

iiiiinstrators. 

Accounting  by,  see  Accounting 

Acts  of  before  notice  of  will   200 

remedies  of  executors  against  200 

validity   of    200 

Assets  in   two   states,   where    255 

duties  of  administrators    255 

Bonds  of,  see  Bonds  of  Executors.  Administrators.  Guardians 

and  Trustees. 
Commissions  of,  see  Conunissio)is  of  Executors.  Administra- 
tors. Guardians  and  Trustees. 
Death  of 

executor  of  may  be  required  to  account  618 

proceedings   for  appointment  of  successor  to,  see  Sub- 
titutionary  A  dm  in  ist  ration . 

Debts  due  from  to  estate,  assets 341 

running  of  statute  of  limitations  against  342 

Discovery  of  assets  of  estate,  proceedings  Iiy  to  obtain,   see 

Discovery  Proceedincis. 
Discovery  against  as  to  condition  of  estate,  see  Discovery  Pro- 
ceedings. 
Duties  of,  see  Executors  and  Ad>ninistrators. 


General  Index.  1457 

ADMINISTRATORS— Co»/i;M(rrf. 

Foreign 

duties  of   256 

powers  of J36 

Inventories,  see  Inventories. 

Lands,  authority  over  4_'4 

Liability  of,  will  discovered,  when    371 

Xon-resident 

power  of  attorney  required  from  on  appointment, 
see  Power  of  Attorney. 
Personal  property  of  decedent 

control    over    337 

duty  to  take  possession  of 337 

power  of  disposal  of 3.^7 

property  specifically  bequeathed    337 

title  in  administrator 337 

Qualification   of    .i6i 

corporation  administrator  of   205 

must  be  taken  before  surrogate J04 

origin  of  requirement  .204 

Security   required    from,   see   Bonds  of  E.veentors.  Adminis- 
trators, Guardians  and  Trustees. 
Will  discovered  after  letters  granted,  liabilities  and  duties  of 

when   ^7f 

ADMINISTRATORS   c.   t.   a.— See   also   Administration   c.    t.  a. 
;ind  E.vecutors  and  Administrators. 

Ancillary 

accounting  by,   when   necessary    -i  i 

appointment  of,  see  .Idniinistration  e.  t.  a. 

inventories  of.  when  necessary   -i  I 

powers  of   - ' ' •  444.  445 

Bond  of,  see  Bonds  of  E.vecutors.  Administrators.  (.Inardians 
and  Trustees. 

Duties   of    -''5 

to  observe  will   -75 

trustee,  duties  of,  may  not  perfcjrm 2C](\  jq- 

Foreign  will  recorded  in  this  state,  of 445 

powers  of   -  '  '  ■  '•^5 

Powers  of    '  -"^ 

Qualification  of  administrator  '" ' 

Sale  of  lands  by,  see  Sale  of  Lands. 

Trust    powers    devolving    upon    e.xeciUdr,    n-.i    mnip  >n/.  .1    \" 

perform    "'"'• 


1458  Probate  Law  and  Practice. 

ADOPTION  OF  MINORS— 

Abandonment  798 

implied,  may  be    798 

next    friend    800 

appointment,  when  necessary    - 800 

consent  of  necessary   800 

acknowledged,  to  be    800 

notice  of  application    802 

publication 802 

what  constitutes   798 

Adopting  parents 804 

age  of   801 

effect  of  upon ,  804 

marriage  of.  effect  of   804 

nature  of  relationship    804 

Change  in  name  of  adopted  child,  court  may  authorize   797 

Child  803 

abandonment  of   798 

implied,  may  lie   798 

what   constitutes    798 

age   of    80 1 

change  of  name  of 797 

consent  of,  when  necessary 800 

acknowledged,  must  be   800 

effect  of  upon  803,  804 

foreign  state,  adopted  in   806 

inheritance  by 805 

Consent  of  guardian  800 

acknowledged,  must  be   800 

when   required 800 

Consent  of  orphanage  or  children's  aid  society  800 

acknowledged,  to  be  800 

foreign,  of,  invalid  800 

when  necessary    800 

Consent  of  parents  of  child   798 

acknowledged,  must  be  800 

necessity  for 798 

procedure,  outline  of   882 

unable  to  obtain  800 

parents  unknown,  where  800 

abandoned  child,  l)ecause    Soo 

habitually  intemperate,  where    800 

insane,  where 800 

proceedings,   when    800,  883 

Costs  of,  petitioners  to  pay   8c6 


General  Index.  1459 

ADOPTION  OF  MIXORS—Coiilinucd. 

Decree   for   8oj 

effect  of   803 

adopting  parents,  upon   804 

marriage  of,  effect  of   804 

nature  of  relationship   804 

child's  right  of  inheritance,  upon   .  . .  -"vm 

parents  of  child,  upon   Jjoj 

recitals  of    , 803 

when  will  be  made  803 

Foreign  state,  proceedings  in  recognized  in  this  state 806 

Hearing 

abandonment  of  child,  must  be  proved  S03 

adjournment  of 802 

day  for,  tixed  upon  presentation  of  petition  801 

next  friend  appointed,  when   Soj 

what  day  may  be  fixed   801 

notice  of   80J 

necessary  when    802 

publication  of   802 

petitioners,  examination  of  upon   802 

Inheritance  of  adopted  child   805 

adopted  in  foreign  state,  when  806 

bequest  to  adopting  father  under  will  of  another  .  806 

Name  of  child,  change  of   797 

Nature  of  proceeding 797 

statutory  proceeding,  a   797 

essential  requirements  of  statute  must  be 

observed    797 

Next  friend   ^^oo 

appointment  of,  when  necessary  800 

consent  of  necessary   800 

acknowledged,  to  be  800 

notice  of  application    802 

publication  of   802 

Orphans'  Court,  jurisdiction  of  797 

Parents  of  child 

consent  of  r'>^ 

abandon  child,   unnecessary   when    . .  8«ki 

acknowledged,  must  be 800 

habitually    intemperate,    unnecessary 

when   S(io 

insane,  when    800 

necessity   for   79^ 

unable  to  obtain,  wiicn   800 

proceedings  8(x) 

unknown,  when,  proceetlings   800 

decree  for,  effect  of  upon  803 


1460  Probate:  Law  and  Practice. 

ADOPTION  OF  MINORS— Coufinucd. 

Petition   for   797 

change  of  name  of  child,  ma\-  pray 797 

consent  of  husband  or  wife  necessary  797 

day  for  hearing  fixed  upon  presentation  of 801 

recitals  of    801 

verified,  to  be  801 

who  may  present  797,  801 

Procedure,  outline  of  882 

ADVANCEMENTS  AND  SETTLEMENTS— 

Agreements    concerning     704 

Assets  of  estate,  are  not   341 

Child  advanced  predeceases  parent,   when    702 

Debt   of   child  advanced,   not    341 

Deducted   from   distributive   shares,   to  be    699 

Interest    on    704 

Loans   distinguished    from    701 

Personalt}',    of    702 

i                                effect  of  on  share  in  real  estate   704 

what  constitutes 702 

Real  estate,  of    703 

deducted  from  distributive  share,  to  be    704 

what    constitute    703 

Statutory   provisions   as    to    699 

purpose  of  statute   700 

What  constitute 700 

intent    controls    701 

ADVISORY  MASTER— 

Appointed,   how    37 

References    to     37 

compensation   on    37 

stenographer,   may  employ    37 

compensation     37 

testimony  on,  how  taken   37 

AFFIDAVITS— 

Inventories,  to.  who  may  take  36in 

Orphans'  Court,  in.  Surrogate  may  take    60 

deputy  surrogate  may  take    60 

record  of  admissible  in  evidence   61 

validity  of   61 

proctor  not  to  take   54 

Prerogative  Court,  for  use  in   29 

proctor  or  counsel  not  to  take  30 

who  may  take  29 


General  Index.  1461 

.\¥F1D.\\'\TS— Continued. 

Surrogate,  for  use  before 

deputy  surrogate  may  take 60 

record  of  admissilile  in  evidence   Oi 

validity  of    6i 

proctor  not  to  take   i)7 

surrogate  may  take    60 

ALLOWANCE  FOR  FAMILY  OF  DECEDENT— 

"Comfortable  support"  where  will  directs  55'' 

Exemption  of  $200,  see  Inventories. 

Interference  by  court  where  allowance  by  executor  unreason- 
able     350 

Inventory,  when  made,  see  Inventories. 

Will  contest  pending 225 

when   allowed    --^ 

Will  directs  payment  to  third  persons  for  supp'M't  of   family. 

where   ?3 1 

AMENDMENTS— 

Orphans'  Court,  in  5.^ 

appeal,  on    53 

power  of  court,  as  to  5v^ 

Petition  of  appeal  to  Prerogative  Court,  of S5 

APPEALS— 

Effect  of  •■•■  79 

administrator  pendente  lite,  on  jjowers  of -^ 

jurisdiction  of  trial  court,  on   79 

letters  granted,  on    ^ 

Entitling  cause  on  appeal   ^.■' 

Orphans'  Court,  from 

accounting,  from  decree  on 

answer  to  petition  of  appeal S; 

in  nature  of  cross  appeal  S4 

may  specify  erroneous  items  ...  84 

petition  of  appeal  M 

must  specify  itc-m-<  apcalefl  ir<<m  84 

recitals  of   >^4 

time  for  taking ^ 

amended  decree,   from    82 

method  of  computing  81 

when  time  begins  in  run   81 

administration,  imm  grant  of 

time  limited  for  taking   ..  .  .80.  Sj 

amended  decrees,  from   8j 

effect  of  not  demandin--  :iiiiif.il 

in  time   "^.^ 

method  of  computiiiK  ■"^' 

when  time  begins  to  run 81 

consul  of  foreign  power,  by "8 


1462  Probate  Law  and  Practice. 

AFPZAhS—Coiihiiucd. 

Orphans'  Court,  from — Continued. 

administration     pendente     lite,     see     Administration 
Pendente  Lite. 

administrator's  powers   suspended  by    80 

amended  decrees,  from,  time  for  taking 83 

amendments  on    53 

answer  to  petition  of  appeal   87 

accounting  from  decree  on  84 

in  nature  of  cross  appeal  84 

may  specify  erroneous  items  ....  84 

failure  to  file  or  serve,  effect  of   87 

filed,  when  to  be 87 

service  of    87 

wfho  must  join  in   87 

bond    required   on,    from   decree    of    distribution   in 

case  of  will   7.24 

commissions,    from    decree    allowing,    see    Commis- 
sions. 

conduct  of   84 

constitutional  provisions   80 

costs  and  counsel  fees  92 

administration,    contested,    see    Contested   Ad- 
ministration. 

allowance  of  from  estate  92 

appellant,  when  will  be  charged  with   94 

denied,  when  will  be  93 

when  unnecessary  testimony  taken   ...  93 

jurisdiction  to  order  payment  of   92 

probate  of  will,  on,  see  Costs  and  Cou)isel  Fees. 

when  appellant  will  be  charged  with  94 

counsel  fee,  from  order  allowing 82 

deposit  on  appeal   86 

amount  of   86 

effect  of  not  making 86 

time  limited  for  making  86 

determination  of  cause 

considerations  governing 91 

decree     reversed     only 
when  error  clearly 

appears   92 

weight    given    to    fact 
that      trial      court 

heard  witnesses   . .  91 
dismissal  of  appeal 

application  for,  when  may  be  made  87 


General  Index.  1463 

APPKALS— Ct>;/h//i/t'£f. 

Orphans"  Court,  from — ContiitiicJ. 

dismissal  of  appeal — Coittiuucd. 

deposit,  for  failure  to  make J^ 

jurisdiction  of  court   S7 

notice  of  motion    ^ 

petition  of  appeal,  for  failure  to  serve  or 

file  «« 

transcript,  for  failure  to  file   feii 

« print   and    serve  89 

when  application  may  be  made  87 

distribution,   from  decree  of  in  case  of  will 7--<  7^4 

bond  required  on   7^4 

time  for  taking  7-4 

distribution,  from  decree  of  on  estate  of  intestate  . .  7-1 

entitUng  cause  on  appeal   ^5 

evidence,  see  also  Evidence. 

additional  testimony  may  be  taken    Sg 

depositions  *of    subscribing    witnesses    be- 
fore surrogate  considered  89 

guardian,  from  appointment  of  by  Orphans'  Court  . .  758 

powers  suspended  by   ^ 

guardians  ad  litem 

proceedings  on  appointment  of  Si 

hearing 

additional  testimony  may  be  taken    89 

when  court  will  permit  9° 

deposition    of    subscribing    witness    before 

surrogate   considered    °9 

in  nature  of  trial  de  novo 89 

proceedings   subsequent  to    94 

may  be  before  Orphans'  Court  94 

may  be  before  Ordinary   94 

questions  of  fact  reviewed   ^ 

testimony,  additional  may  be  taken  89 

inventories,  from  order  respecting  fairness  of 80 

time  limited  for  taking 80 

amended  decree,  from   8j 

method  of  computing  81 

when  time  begins  to  run  81 

jurisdiction  of  prerogative  court  89 

additional  testimony  may  be  taken 89 

decree   below   based   on    fin»l- 

ings  of  jury,  where S<; 

decree  of  trial  court,  not  limited  to  re- 
view of    '^ 

questions  of  fact,  may  review   .  .  ^) 


1464  Probate  Law  and  Practice. 

APPEALS— Coiitiiiued. 

Orplians'  Court,  from — Continued. 

jurisdiction  of  prerogative  court — Continued. 

testimony,  additional  may  take   89 

trial  de  novo   89 

notice  of  appeal  81 

filed  with  surrogate,  to  be 81 

recitals  of  81 

service  of   81 

p^sons   cited    on   appeal   to   Orphans'    Court, 

right  of  to   79 

petition  of  appeal 84 

addressed  to  Prerogative  Court,  should  be  .  85 

allegations  of    85 

amendment  of  85 

failure  to  hie  or  serve,  effect  of 84 

service  of   84 

specify    portion    of    decree    complained    of. 

i:ftust    85 

effect  of  failure  to 85 

time  for  filing   ; 84 

extension  of   time    84 

probate  of  will 

Orphans'   Court,    from    decree   of,    founded 

upon  verdict  of  jury 229 

Prerogative  Court,  jurisdiction  of  230 

matter  tried  de  novo  230 
may    take    additional 

proofs  230 

time  for  taking    80 

amended  decree,  from  82 

method   of  computing   81 

when  time  begins  to  run  81 

proceedings  after  hearing 

may   be   before    Ordinary    or    Orphans' 

Court   94 

proctor  and  counsel  on   84 

refusal  to  admit  competent  evidence,  for  47 

sale  of  lands  for  debts,  from  order  for  501 

'  appeal  from  order  setting  aside   514 

appeal  from  order  confirming  514 

who  may  take   501 

time  for  taking   80 

amended  decrees,  from   82 


Genekal  Index.  1465 

APPEALS— C'o/<//»;(a/. 

Orphans'  Court,  from — (.'onttiiiicd. 

time  for  taking — Continued. 

failure  to  take  in  time,  effect  01  83 

method  of  computing 81 

when  time  begins  to  run  Si 

title  of  cause  on   85 

transcript  of  proceedings   86 

filed  when  to  be 86 

failure  to  file,  effect  of  86 

printed,  when  required  to  be 86 

service  of  86 

effect  of  failure  to  serve  86 

what  to  contain   86 

who  may  appeal 80 

person  aggrie\  ed.  who  is   78 

Person  aggrieved,  who  is   7^ 

Prerogative  Court,  from 

commissions,  from  decree  allowing  696 

practice  on   31 

time  for  taking  3 ' 

Surrogate,  from 

administration,  from  grant  of 

consul  of  foreign  power,  by   yS 

court  to  which  taken   74 

time  limited  for  taking  7-4 

amended   decrees,    from    81 

failure  to  demand  in  time,  ef- 
fect  of    83 

method  of  computing    81 

when  time  begins  to  run 81 

to  what  court  taken   74 

administrator's  powers  suspended  by    80 

amendments  on    53 

citation    on    7o 

appellant  to  cause  issue  of   76 

dismissal  of  appeal  for  failure  lo  issue  and 

serve   77 

time  limited  for  issue  of   7^ 

dismissal   of    77 

citation,  for  failure  tn  issue  or  serve  ....  77 

notice  of  application   for   77 

petition  of  appeal,  fur  f.-iiln  ■  ••>  -'-rve  ...  77 

prosecution,  for  lack  of                       77 

evidence,  see  Evidence. 

executor,  powers  of.  suspended  b>  "^i 


1466  Probate  Law  and  Practice. 

APPEALS— Continued. 

Surrogate,  from — Cojitiniicd. 

guardianship,  from  grant  of   74-  758 

how  taken  758 

time  hmited  for  taking 74.  758 

to  what  court  taken 74 

guardian's  powers  suspended  by   80 

guardian  ad  Htem,  appointment  of,   see   Guardians 

ad  Litem. 
hearing 

matter  heard  de  novo   77 

persons  cited,  rights  of   76 

can   only   be   heard   in   support   of 

decree    77 

practice   on    77 

inventory,  proving  of  by  surrogate  from  74 

time  Umited  for  taking 74 

to  what  court  taken   74 

method  of  taking   74 

petition  filed  with  surrogate   74 

addressed  to  surrogate   75 

nature  and  effect  79 

de  novo  proceeding,  a   79 

suspends    operation    of    decree    ap- 
pealed from 80 

parties   cited    76 

rights  of  at  hearing 76 

can  only  be  heard  in  support  of  de- 
cree      77 

petition  of  appeal   75 

addressed   to   surrogate,  to  be    75 

failure  to  serve,  appeal  dismissed  for   ....  77 

filed  with  surrogate,  to  be   75 

recitals  of    75 

service  of  76 

time  limited  for  filing   74 

practice   on    78.  880 

Prerogative  Court  to,  when  lies  78 

probate  of  will  by  surrogate,  from  74 

time  limited  for  taking  74 

non-residents,  by   74 

residents,  by    74 

procedure,  outline  of   880 

Time  for  taking 

amended  decrees,   from   82 

computation  of   81 


General  Index.  1467 

AFFE.\LS— Continued. 

Time  for  taking — Continued. 

failure  to  demand  appeal  in  time,  effect  of  83 

method   of   computing    °' 

when  time  begins  to  run  ^' 

Who  may  take   ' ' 

party  aggrieved,  who  i?   "' 

ASSETS— 

Advancements   not    34' 

Application  of  to  payment  of  debts,  order  of   548 

general  rule  stated   54° 

lands    548 

descended  54" 

devised  for  payment  of  debts   549 

to  residuary  devisee   54^ 

specifically  devised   549 

personality  not  specifically  bequeathed  548 

residuary  real  estate    54° 

specific  legacies  and  devises    549 

Choses  in  action  ^^"^ 

personal   representative,  pass   to    33^ 

specifically  bequeathed,  where 3.^!^ 

Collection  of  by  executor,  etc •^'^^ 

duty  of  executor  as  to   405 

fees  paid  for  not  allowed   4o8 

liability  in  case  of  neglect    405 

Crops  and  products  of  land  34-' 

Damages  recovered  under  death  act  34.-< 

Debts    ^■^' 

executor,   due   from    -^  ^ ' 

running  of  statute  of  limitations  against  .Ut 

legatees  or  devisees,  due  from   3.^0 

Defined  '^-^l 

Deposits  m  trust,  when •  •  ^ 

Depreciation  and  loss  of,  lialiility  of  exccut-.r.  etc.  in  ca^e  of. 
see  Errcutnrs  mid  .idiiiinistralors. 

Discovery  01    _ 

jurisdiction  of  Orpbans'  Cf.urt   ...  3.v 

proceedings  to  obtain    •'• 

■?5') 
practice    •^• 

Distributive    share    vested    in    decedent  •     3.^0 

next   of   kin,   rights  of    3.V) 

passes  to  personal   rei)resent:iln  ■  3.VJ 

Estate  per  autre  vie   

^      .  30 

Foreign    ^ 

accountability  f<>r    

proceedings  to  <ibtain   i)osscssion  of    349 


1468  Probate  Law  and  Practice. 

ASSETS— Continued. 

Heirs  and  devisees 

debts  due  from  to  estate,  when   339 

Increase  and  accretion   34- 

Insurance  policies,  proceeds  of.   when    34- 

Joint  bank  accounts,  when 345 

"either  to  draw  survivor  to  take"   347 

Lands  purchased  at  foreclosure  sale   4^4 

sold  without  order  of  court,  may  be  4-4 

Leases  of  decedent   343 

Legacies    vested    in    decedent   339 

next  of  kin,  rights  of 339 

pass  to  personal  representative    339 

Legacy  to  creditor,  wdien  construed  to  be  in  payment  of  debt.  .  340 

Legatees,  debts  due  from  to  estate   339 

Loss  and  depreciation  of.  liability  of  executor  in  case  of,  see 
Executors  and  Adniiuistrators. 

Mortgages    343 

Next  of  kin 

powers  of  disposal  of  personal  property  ^49-  337 

rights  of  in  personal  property  of  decedent   249,  337 

Paraphernalia  of  wife   344 

Pensions    345 

Real  property  and  interests  therein   350 

charged  with  debts  by  will,  when  457 

contracts   for  sale  of    354 

estate  per  autre  vie  354 

lands  purchased  by  executor,  etc.,  at  foreclosure  sale  .  . .  351 

lands  purchased  by  trustee  352 

proceeds  of  sale  of  land  • 35^ 

interest  on    354 

rents  and  profits  of   355 

will  directs  lands  sold,  when   35° 

Separate  property  of  wife  344 

Several  states  in,  administration  of  in  case  of   255 

Trust  funds,  when   57^ 

BARRING  CREDITORS— 

Debts  barred  by  decree   567 

alleged  by  way  of  set-off  50/ 

deficiency  on  foreclosure  of  mortgage,  claim  for   568 

heir,  claim  of   for  exoneration  of  mortgage  from  per- 
sonal estate   509 

interest  on  bond  given  by  testator,  claim  for   569 

preferred  debts    50o 

presented  after  expiration  of  rule  to  limit.  Init  before 

entry  of  decree   509 


>tx) 


General  Index.  1469 

ARRIXG  CREDITORS— CoHti, I u I- d. 
Debts  barred  l>y  decree — Coitliinn-d. 

presentation  of  claims  waived  by  ixrsonal  representa- 
tive      

set-off,  alleged  by  way  of  3^7 

Debts  not  barred  by  decree 37o 

advances  to  estate  by  deceased  executor,  claims  tor  . . .     570 

cestui,  claim  of  against  estate  of  deceased  trustee 57 1 

entry  of  decree,  claims  arising  after  570 

trust   funds,   claims   for 571 

Decree  barring  creditors  '.'.'. . :'. 5"4 

effect  of    565 

entry  of 5^ 

liability  of  estate  not  affected  by  5^5 

limitations,  is  not  statute  of  3^6 

necessity  for  .'..'...'. 3o5 

under  present  statute    565 

under  prior  statute 565 

operation  of    ^7" 

personal  representative,  is  for  protection  of 366 

pleading  bar  of    ^^ 

statute  of  limitations,  is  not ^^^ 

Dispute  of  claims  presented,  see  Debts  of  Estate. 

Method  of    -]-f 

Presentation  of  claims   •"'•]'*' 

claims,  verified,  must  be 3?Q 

form  of  affidavit    33Q 

claims  which  may  be  presented    563 

debts  payal)le  in  future   363 

mortgage,  secured  liy   5"4 

preferred   debts    3o4 

claims  which  need  not  be  presented   3'J^ 

assigned   after  presentation    5<>.? 

deceased  executor,  of.  for  advances   562 

deficiency  on  mortgage,  claim  for   3^'.^ 

presented  prior  to  entry  of  rule  to  limit 

creditors     •■'^- 

unverified.    personal    representative    may 

pay.  when   

insolvent  estate,  in  case  of 

verified,    claims    must    lie    

form  of  .itfidavit    

waiver    of    bv    personal     re))rcsentativc, 

effect   of    ."^^O 

commcnccm.ni    of   Miit    ii-t    ,-.|uivalcnt   to    361 

Procedure,  outline  of   .  .  . 


14/0  Probate  Law  and  Practice. 

BARRING  CREDITORS— ro»/i";;»r^. 

Purpose  of  statute  559 

protection  of  personal  representative,  is  for  566 

statute  of  limitations,  is  not   566 

Remedies  of  barred  creditors   576 

assets  unaccounted   for,  against   577 

construction  of  statute   577 

procedure     577 

Chancery,   remedy   in    582 

heirs  and  devisees,  action  against   582 

legacy  or  distributive  share,  unpaid,  against   579 

action  against  personal  representative,  when 

may  maintain  579 

refunding  bond,  effect  of  not  filing 579 

legatees  and  distributees,  action  against   581 

operation  of  decree  barring  creditors    576 

procedure,  outline  of    844 

refunding  bond,  suit  on,  by  580 

surplus  after  settlement  of  estate,  against   577 

account,    executor,    etc.,    neglects    to,    pro- 
ceedings when   582 

decree    of    distribution,    proceedings    when 

executor,  etc.  neglects  to  obtain   582 

executor,  etc.,  may  notify  creditor  to  bring 

suit     578 

creditor    barred    if    he   neglect   to 
bring   suit   within   one   month 

after   notice    578 

presentation   of   claims   to  executor    577 

.vhen  may  be  presented   578 

proceedings   in  case  executor,   etc.,   refuses 

to   pay  claim    578 

Rule  to  limit  creditors   558 

jurisdiction  of  Surrogate  and  Orphans'  Court  558 

notice   of    558 

form  of  559 

necessity    for     559 

posting  • 558 

publication    558 

returnable,    when    558 

BETTERMENTS— 
See  Bxpctidifures. 


General  Index.  1471 

BONDS    OF   EXECUTORS.    ADMIXISTR.\TORS.   GUARD- 
IANS AND  TRUSTEES— 

Additional,  when  required   3J0 

administration  granted  upon  insufficient  security, 

when    320 

insufficient  for  security  of  estate,  when 320 

jurisdiction  of  court  to   require    320 

sale  of  lands,  on.  by  administrator  c.  t.  a 447 

sureties  in  failing  circumstances,  when   320 

Administrators,    of     307 

amount  of   308 

assets  in  other  state,  when  310 

matters  considered  in  fixing 309 

condition  of    307 

form  of    308 

husband,  from,  when  administrator  of  wife's 

estate 308 

purpose   of    309 

surrogate  to  file  50 

Administrators  c.  t.  a.,  required  from  3'0 

amount  of    3'" 

condition  of    3 '" 

sale  of  lands,  additional,  when  required  on..  447 

surrogate  to  file  5'"' 

Administrators  pendente  lite,  of  -^(> 

amount  of  discretionary  with  court  286 

order  fixing  amount  of,  not  appealable 28(j 

required    from     3'0 

Co-Executors,  l)y  one  to  secure  the  other,  see  Co-Excculors. 
etc. 

Corporation   administrator,   etc..   from    3^5 

no  sureties  required,  when  .303 

Deposit  of  securities  in  lieu  of  3'o 

bond  for  assets  not  deposited  recjuired    319 

certificate  issued  by  depositary   3-0 

method  of  depositing  securities   3J0 

withdrawing  securities    3 "J 

when  permitted   320 

Discharge  of 

further    lialnlitv    fr-n,     ..  .•    Siirrli.s    ,mi.    this    title 

infra. 

settlement  of  esiaic  aiiii    XU 

practice  on  application  335 

Executors,  of   ^ 

forfeiture  of.  proceedings  on  3H 

non-resident,   from   206.311 

required,  when -^'  3".  313 

amount  on    •'_' ' 

94 


1472  Probate;  Law  and  Practice. 

BONDS    OF   EXECUTORS,    ADMINISTRATORS,    GUARD- 
IANS AND  TRUSTEES— Continued. 

Executors,  of — Continued. 

required,  when — Continued. 

application  to  require  to  give  312 

jurisdiction   312 

practice 312 

when  court  will  order   313 

rule  in  chancery  314 

power  of  court  to  require 311 

resident,  when  required  from   206,  313 

rule  in  chancery   . .  .' 314 

surrogate  to  file   59 

Guardians,  required  from   315 

amount   of    316 

matters  considered  in  fixing 316 

form    of    315 

idiots,   lunatics   and    drunkards   of,    see   Guardian- 
ship of  Idiots,  Lunatics  and  Drunkards. 

married   woman,    from    317 

husband  may  be  surety  on   317 

nature  of   316 

several  minors,  when  guardian  of   315 

separate  bond  required  for  each 315 

surrogate   to   file    59 

testamentary,  from  315 

History  of  statutory  requirement    306 

Prosecution  of    326 

application  for  permission  for 326 

granted,  when   327 

Ordinary,   when    327 

what  applicant  must  show  327 

who  may  make   327 

order  for   328 

filed,   where    328 

granted,  when   will  be    327 

set  aside,  when  will  be    328 

Ordinary  may  order   .- 326 

procedure,  outline  of    876 

security  for  costs  required   328 

statutory   provisions    326 

suit  on  bond    329 

damages,   assessment  of    330 

defenses  to  application   for   331 

liability  on  bond  cannot  be 

questioned    331 


General  Index.  1473 

BONDS   OF   executors/administrators.   GUARD- 
IANS AND  TRJSST-EES— Continued. 

Prosecution  of — Continued. 

suit  on  bond — Continued. 

damages,  assessment  of — Continued. 

measure  of    331 

counsel     fees     ami     costs 

may  include    331 

limited  to  penalty  of  bond  331 

Ordinary,  may  he  made  by   330 

reference  of  to  master  330 

exceptions  lie  to  master's 

report     330 

discontinuance  of   329 

application  to  Ordinary  for  .  .  329 

remedy  of  creditor  aggrieved  3J9 

when  Ordinary  will  order  ....  329" 

judgment 330 

amount  of   330 

liability  of  surety,  proceedings  by  to  ascertain  335 

order  to  present  claims  to  surety 336 

exceptions  to  claims  33O 

presentation  of  claims  to  surety  336 
satisfaction  of  judgment,  wbcn 

ordered  336 

parties    plaintiff    32Q 

Reduction    of    321 

grant    of    letters,    on.    see    Def^o^t    of    .'^ceurities 
in  Lieu  of,  this  title  supra. 

jurisdiction  of  court  to  order    321 

practice    321 

Sale  of  lands  for  debts,  on,  see  Sale  of  Lands  for  Deht.w 
Substitutionary  administrators  c.  t.  a.,  of 

amount  of    275 

required    from    275 

sale  of  lands,  by.  see  Sale  of  Lands. 

Successor  of  discharged  exccut' ir.  of  611 

amount   of    .(hi 

form  of  bond    Oil 

sureties  on    6n 

Successor  of  removed  exccuior  cic,  of  .  611 

amount    of    611 

form  of   Ml 

sureties  on    di  1 


1474  Probate  Law  and  Practice. 

BONDS    OF   EXECUTORS.    ADMINISTRATORS.    GUARD- 
IANS AND  TRUSTEES— Continued. 

Sureties   on    3^7 

failing  circumstances,  when  in  320 

husband  may  be  on  wife's  267.  317 

husband  of  married  woman  administratrix,  may  l)e  267,  317 

liability  of   321 

account,  on   failure  to  file    323 

attaches,    when    321 

administrator  c.  t.  a.,  of.  not  liable  for  acts 

of  principal  as  trustee   322 

ascertainment  of,  proceedings  for  335 

order  to  bring  in  debts,  when  made  .  336 

exceptions   to   claims    336 

presentation  of  claims  to  surety  336 

practice   on   application    335 

debts  due  from  administrator  to  estate,   for  322 

guardian's  bond,   on    326 

inventory,  on   failure   to   file    323 

limited    to   character    in    which    he    I)ecomes 

surety     3^^ 

misconduct  of  principal,  loss  caused  l)y   ....  321 

neglect  to  prosecute  does  not  affect 322 

non-payment   of   debts,    for    324 

distributive  share    325 

judgment    325 

legacy    326 

remedy  against  principal  not  precluded  by..  321 

married  woman  may  not  be  318 

number   required    317 

payment  of  judgment  against  principal  by.  effect  of  325 

qualification    of     318 

relief   of    333 

discharge  of  after  settlement  of  estate 33-1 

practice  on  application  for   335 

further  liability,   from    333 

practice  on  application   333 

procedure,  outline  of    871 

right   of   sureties  to 334 

misconduct  of  principal,  in  case  of   333 

waste  by  principal,  in  case  of  333 

jurisdiction   of   Orphans'   Court    333 

separate  security  to  surety   333 

court  may  require   333 

procedure,  outline  of    870 

surety  company    318 

expense  of  obtaining  from,  chargeable  against 

estate    318 


General  Index.  147; 

BONDS    OF   EXECUTORS.    ADMIXISTKATORS     r.U  \F>:D- 
lANS  AND  TRVSTEES-Contiuucd. 

Trust  company,   from    ^05 

when    no    sureties    required    -^06 

Trustee 

absent  person,  of   ^oj 

appointment,  upon   2g6 

amount   of    206 

sureties   required    296 

removal  of  property  from  state,  upon  -^oi 

\'alidity    of     ^,r) 

CA\^EAT— 

Effect  of  filing   iq- 

suspends  jurisdiction  of  court   197 

Nature    of    107 

suspends  jurisdiction  of   surrogate    197 

Surrogate,  jurisdiction  of 

restored  by  withdrawal,  when   198 

suspended  by  filing   197 

Suspends   jurisdiction   of   court    197 

Who    may    file 197 

attorney  in  fact 198 

executor  of  will  may  not 198 

infants     198 

Witlidrawal    of 198 

after  issue  of  citations,  effect  of  190 

when  may  be  witlidrawn   108 

CERTIORARI— 

Review  of  proceedings  of  Orjihans"  Court  by 81 

CIRCUIT  COURT— 

Trial  before  of  disputed  probate,  see  Contested  Probate. 
CITATION— 

Accounting,  on,  see  Accouut'uuj. 

Administration     contested,     upon,     mc     i,',nuested     .  Iiiinims- 
tratiou. 

Appeal  from  surrogate,  on   7*' 

appellant  to  cause  issue  of  7^ 

dismissal  of  appeal  for  failure  to  issue  or  serve   ....       77 

time    limited    for   issue   of    ?'> 

Caveat   against   probate   of    will,   on,    see   Contested    I'rohate. 

Inventory,   to   file,   practice    .^(>- 

Lost  wills,  issue  of  upon    -44 

Probate  of   will,   on,   when   administration   ;.;rante(i    .'(xi 

Service   of    .V> 

by  whom   served 4" 


1476  Probate  Law  and  Practice. 

CITATION— Con /t»»r  J. 
Service  of — Ccyutiinicd. 

non-residents,    on    40.  4i 

person    specially    appointed,    by    40 

publication,   by    41 

publication,   by    4i 

Suit  for  legacy  or  distributive  share,  in,  see  Suits  for  Legacies 
and  Distributizv  Shares. 

CODICILS— 

Republication  of  will  by  execution  of    I74 

annexation  of  codicil  to  will  unnecessary   175 

effect  of    174 

establishes     will     as     it     existed     when     codicil 

executed    I74 

language   necessary   to   accomplish    176 

validates  defective   will    i74 

improperly  executed  will    I74 

revoked    will    I74 

will    of    incompetent    I75 

Revocation  of  will  by  execution  of   182 

express   revocation   of   will   unnecessary    182 

CO-EXECUTORS,  ETC.— 

Account  by  one  to  other    422 

notice  of  application  for   422 

ordered,  when  will  be    •  •  •  •  422 

proceedings    to   compel    422 

Accounting    by   jointly    - 649 

liability  of  on    649 

what  constitutes  joint  account   650 

Actions   against    4i3 

judgment  against  all  though  some  not  served   413 

execution  only  against  goods  of  testator  .  .  413 

Actions    between    421 

Chancery,    jurisdiction    over     421 

common  law  courts,  jurisdiction  over    421 

Orphans'  Court,  jurisdiction  over  421 

Actions  by    4^3 

all  should  join  in   4I3 

where  one  renounces  or  neglects  to  prove  will   413 

Acts  of  one  regarded  as  acts  of  all  412 

Acquiescence  of  cestui,  effect  of  on  liability  of  one  for  acts 

of  another    420 

Death  of  one,  effect  of    4^4 

powers  vest  in   survivors    414 

survivors  may  exercise  power  of   sale    414,436 


General  Index.  1477 

CO-EXECUTORS.  ETC.— Continued. 

Discharge    of    one 

duties  devolve  upon  others   414,  436.  610 

exercise  of  power  of  sale  hy  others    414,436 

powers  vest  in  others  414.  436.  610 

Dutj'  of  to  protect  estate  from  misfeasance  of  associate  ....     419 

liability  for  neglect  to    419 

Failure  of  one  to  qualify,  effect  of    414 

Indorsement  of  notes,  powers  of   413 

Investments  by,  all  must  consent  to   389,  415 

Liability  of  for  acts  of  each  other   416 

acquiescence  of  cestui,  effect  of  on   420 

breach  of  trust  by  associate,  effect  of  permitting  .  .41S,  419 
duty    of    to    protect    estate    from    misfeasance    of 

associate    4  '9 

general    rule    stated    416 

nature  of   liability    4I7 

personal  interest   in   transaction  by  one    419 

possession    of    assets    In*    associate,    effect    of    per- 
mitting         417 

Limitations,  statute  of 

power  to  remove  bar  of -1'4 

Mortgages    4  •  5 

assignment  of   4 '  5 

postponement   of    415 

release    of    A^5 

satisfaction    of    4i5 

One  person,  regarded  as    4'-' 

Personal  property 

one  may  sell   4 '  - 

proceeds  of  sale,  right  to  possession  of  4'- 

Powers  of    4'-' 

Real  property 

conveyance  of.  purchased  b.\    415 

estate  in,  purchased  by  4 1 5 

sale  of  by   414 

Removal  of  one   ' 4i4 

effect    of    414.  4.^6.  610 

exercise  of  power  of  sale-  by  utlicrs   4'4.  4.^<J 

powers  vest  in  others   ('4-  4.^^».  ^^in' 

Renunciation  by  one 

effect  of   414.436 

exercise  of  power  of  sale  l)y  mhers 414.  4^^ 

powers  vest  in  others    .  4i4.4.^^» 

Resignation  of  one 

effect   of    , 4'4.4.V> 

exercise  of  power  of  sale  l>y  ntlicrs  414.  AM^ 

powers  vest  in  othcr-^  I14.  .J3f> 


J 478  Probate  Law  and  Practice. 

CO-EXECUTORS.  ETC.— Continued. 

Security  by  one  to  the  other   422 

breaches  of  bond,  what  constitute   422 

notice  of  application  for  422 

proceedings   to   compel    422 

when  will  be  ordered  422 

COMMISSIONS     OF     EXECUTORS,     ADMINISTRATORS, 
GUARDIANS  AND  TRUSTEES— 

Administrator,  of 

will  admitted  to  probate,  when  200 

Agreement  as  to  amount,  effect  of   688 

Allowance   of    675 

common  law,  at    675 

necessity  for  allowance  by  court  675 

deduction   of   before    allowance,    penalty 

for     675 

not  allowed  when,  see  Forfeiture  of  Coininissions, 

this  title  infra, 
rate  of,  see  Rate  of  Alloii-anee,  this  title  infra. 

will  provides  for  compensation,  where  676 

Appeal  from  decree  allowing   696 

allowance  of  by  Prerogative  Court,   on    696 

who    may    appeal     696 

Application  for 

affidavit  of  services,  when  required  686 

executor,  etc..  by,  where  estate  exceeds 

$50,000    686 

guardian,  -by,     where     estate     exceeds 

$20,000    .' 686 

notice    of    645 

service  of    645 

minors,   on    645 

Disputes  between  executors,  etc..  as  to  division  of   689 

court  may  determine    689 

decree  allowing,  effect  of   691 

jurisdiction   of   court    689 

notice  of  application   690 

practice   on   application    690 

general  allowance  of,  efifect  of    691 

no  presumption  of  equal  division   691 

Discharged    executor,    of    613 

Executor  also  trustee,  when    685 

considerations   influencing   court    in   making   allow- 
ance       685 

entitled  to  allowance  in  both  capacities   685 

Executor,  of,  later  will  probated,  when 200 


Genkkal  Indkx.  14-0 

COMAlISSIOxXS     OF     EXECUTORS.     ADM  L\1STRAT(  )kS. 
GUARDIANS  AND  TRVSTEES-Continucd. 

Forfeiture,  of   6,)i 

account  for  failure  to   6g4 

misconduct,   for    693 

mismanagement  of  estate,  fur byj 

removal   from   office,   in  case   of    695 

use  of  funds  of  estate  by  accountant,  for  693 

wrongdoing  by  accountant,   for   691 

Guardians 

income,  not  allowed  on  as  such    858 

where   estate   exceeds  $JO,ooo    t)8i 

Income  collected,   on    687 

allowed,  when    087 

guardian  not  allowed  on  as  income  85S 

principles  controlling  allowance   of    687 

rate  of  allowance   687 

Intermediate  accounts,  on    086 

method    of    calculating     0S7 

principles    controlling    allowance    of     686 

Payment  of    677 

allowance  of  by  court,  before,  penalty  for   675 

fund  from  which  payable   677 

as  between  life  tenant  and  remainder  man   .  .  ()77 

necessity  for  allowance  by  court  before   673 

sale  of  lands  for 485 

Rate  of  allowance  <>8<» 

Chancery,    in    689 

considerations  influencing  court  in  determining  681 

illustrations  of  allowances  made   683 

pains,   trouble   and   risk   considered    ....  681 

rests  in  discretion  of  court   (^.^ 

estate  exceeds  $50,000,  where   f>8j 

discretion  of  court,  rests  in  68.3 

executors,  administrators  and  trustees 

estate  is  less  than  $50,000  where    ''>8o 

court  restricted  by  terms  of  statute  . .  ()8j 

estate  exceeds  $50,000,  where  <^^ 

illustrations  of  allowances  made   ....  ()83 

pains,  trouble  and   risk  coii'^idc  red    .  .  <)8i 

rests  in  discretion  of  court  ()X.\ 

executor  also  trustee,  when    ^^^i 

guardians     '*■  *' 

court    restricted    by    statute    '>8o 

estate  exceeds  $20,000,  where   '>8i 

estate  less  than  $20,000,  where    <>8<i 

income,   on    7 

illustrations  of  allowances  made   O87 

intermediate  accounts,  on  allowance  nf  686 


1480  Probate  Law  and  Practice. 

COMMISSIONS     OF     EXECUTORS,     ADMINISTRATORS. 
GUARDIANS  AND  TRUSTEES— ro»fnn/r(/. 

Sums   allowed   on    677 

assets  not  passing  through  hands  of  accountant  678 

decedent's  business,  when  continued  by  accountant    . .  679 

authorized  by  decedent,  where 679 

unauthorized  by  decedent,  where  679 

proceeds  of  sale  of  real  property    678 

property  sold  at  less  than  inventoried  value,  when  ....  679 

securities  transferred  to  legatees  as  cash   677 

statutory  provisions •  677 

uncollected  assets,  not  allowed  on   678 

value   of   realty   directed   to   be   sold  but   conveyed   to 

devisee    678 

Will  probated  after  administration  granted   688 

allowance  of  in  case  of   688 

Will  providing  compensation   676 

acceptance  of  provision   676 

implied  from  proving  will    676 

executor  to  serve  without  compensation,  where   676 

estate  over  $50,000,  where 676 

CONFLICT  OF  LAW— 

Distribution    of    personal    estate    7-i 

governed  by  law  of   domicile   of   intestate    ....  721 

tribunal  by  which  to  be  made 721 

Personal   property,   validity   of   will   of   governed   by   law   of 

testator's  domicile    97 

Real  estate,  validity  of  will  of  governed  by  law  where  land 

situate    98 

Testamentary  capacity   .•  •  103 

personal  property,  to  bequeath    . .  103 

law  of  testator's  domicile  governs    .  .  103 

real   estate,   to    devise    103 

law  where  land  situate     governs   103 

CONTEAIPT  PROCEEDINGS— 

Discharge  of  persons  imprisoned  under    49 

Disobedience,  for 

citation   to   account,   of    630 

order   of   court,   of    630 

process,    of    49 

Practice   on    880 

Prerogative  Court,  in   4 

Proceedings,  outline  of   , 880 

Punishment    for    49 

imprisonment,   bj'    49 

discharge  from   49 

sale  of  lands  and  goods,  by 49 


Gkxerai,  Index.  1481 

CONTESTED  ADMINISTRATION— 

Appeal  from  Surrogate,  may  be  inaugurated  l.y  .  _>0i 

when  must  be  filed   74 

Caveat,  maj-  be  inaugurated  by   •  jgi 

withdrawn,  when  may  be   2^2 

Citations  issue  to  all  persons  in  interest   ^59,^1 

service   of    39 

non-residents,    on    40.  41 

person     specially     appointed. 

by     40 

publication,  by  41 

publication,  by   41 

sheriff  to  make   40 

Commenced,  how  291 

appeal  from  decree  appointing,  by  291 

caveat,    by    291 

cross  petition,  by   291 

Costs   of   contest    292 

imposed  on  estate,  when   292 

parties,    when     292 

Cross  petition,  may  be  inaugurated  by  291 

withdrawn,    may    be    292 

Non-residents,  upon  estate  of  ..,    , 

contest    as    to    non-residents    determined    by 

Surrogate    ^5.^ 

Orphans'    Court,   proceedings   in    292 

Procedure,   outline   of    ^-3 

Who  entitled   to  contest    -9' 

CONTESTED  PROBATE— 

Appeal  from,  Circuit  Court,  in    226.  229 

jurisdiction  of  Prerogative  Court    230 

matter  tried  de  novo   230 

may  take  additional  pr<'"!'~  •}'> 
Attestation  clause,  see  Probate  of  Wills. 

Citations   on   caveat    -'-'-' 

service    of    ~~^ 

non-residents,  on    4".  4 ' 

person     specially    appointed, 

by    '■ 4" 

Ijublicaiii'u,    bv    l' 

whom   issued  to . 

Circuit  Court,  trial  of  in 

application  for   

discretionary  wilb  >iiiiri   \'<  f^r;nii  --/ 

when  must  l)c  made    2^7 


1482  Probate  Law  and  Practice. 

CONTESTED  FROBATE— Continued. 

Circuit  Court,  trial  of  in — Continued. 

Circuit   Court,   proceedings   in    227 

issue  to  be  framed  by   227 

Common  Pleas,  may  not  be  sent  to  for  trial  . .  228 

testimony   taken    down    stenographically    ....  227 

trial,    practice    on    227 

costs   of    229 

decree,  Orphans'  Court  to  make 229 

court  bound  by  verdict   229 

new  trial,  motion  for 228 

proceedings  upon   228 

transcript  of  proceedings  in  circuit  to  be  returned  to 

Orphans'    Court     228 

what  to  contain 228 

Costs   and   counsel    fees    230 

caveator,  of,  if  probate  denied   234 

granted   234 

when   evidence   other   than   that    of    subscribing 

witnesses  is  offered   234 

common  law,  at,  not  recoverable    231 

effect  of  testamentary  provisions  as  to  payment  of    .  .  233 

expert   witnesses,   of    •■ .  2^,2 

selected   by  court,   must  be   if    fees   are   to   be 

charged   against    estate    233 

historical  sketch  of  legislation    231 

jurisdiction  of  court  limited  by  statute    231 

litigation   imnecessarily   protracted,   when    233 

parties  to  whom  will  be  allowed   232 

payment  of    236 

from    what    fund    236 

proponent,  costs  of    233 

statutory  provisions    230 

Disposition  of  cause,  considerations  controlling  court  upon   . .  149 

Evidence,  see  Evidence. 

Execution  defective,  for,  see  Exeeution  of  Wills. 

Expert  witnesses 

selection  of   should   be  made  by  court   when   expense 

charged  against  estate    22,3 

Fraud,   for,  see  Fraud  and  Undue  Influence. 

Hearing    224 

practice   on    224 

Parties   222 

minor,    appointment    of    guardian    ad    litem    for.    see 
Guardians  ad  Litem. 

necessary,  who  are  222 

required  to  be  served,  who  are  222 


General  Index.  1483 

CONTESTED  PROBATE— Continued. 

Procedure,  outline  of   .  .     Si 3 

Testamentary     capacity,      for     lack     ui,     ^cc      1  isunnrutiiry 

Capacity. 
Undue  influence,  for,  see  Undue  Jiiflucucc. 

Validity  of  will,  court,  will  uphold  if  possible 14<> 

Widow  and  children,  allowance  to  pending  contest J-'5 

COSTS  AND  COUNSEL  FEES,  see  also  Disburscinciits. 

Accounting,  on 

estate  less  than  $200,  where  tX) 

$500  and  more  than  $_'oo 60 

estate  less  than  $10,000,  when  65 

more   than   $10,000   and   less   than   $5o,tXH), 

»  when     t)5 

over   $50,000    t>5 

exceptions   on,   see   Exceptions   to   .Iccoiint,  this 
title  infra. 

method  of  computing   ^^S 

reduction  of  when  estate  less  than  $JtK)   06 

reduction  of  when  estate  less  than  $500 60 

Administration  contested,  when,  .see  Contested  .Idniinistration. 

Appeal  from  order  allowing  ^- 

Appeal  to  Prerogative  Court,  on   y- 

allowance  of  from  estate  9- 

appellant  charged  with,  when   •  •  ■  •       'M 

contested  administration,  on,   see  Contested  .Idniuiis- 
tration. 

denied,  when  will  be   93 

when   unnecessary   testimony   taken    93 

jurisdiction    to    award    '*- 

prol)ato    of    will,    on,    see    I'rolnUe    of    Will   this    title 
*  infra. 

Citation  to  account,  on    

payal)lc  by  accountant,  when    '•-'' 

Costs 

common   law,  not  recoverable  at    5."" 

Counsel  fees 

accountant,    wlien    charged    against    on    e.xcri)tions   to 

,  671.07-' 

account   ' 

executors,   etc.,    for   services   rendered   to    4<>'> 

allowed,  when,  will  be   4"<^.  4«»7 

allowed,  when  will  not  be  4i" 

amount   of    allowance    4"t>.  4<»'> 

attorney.   wh<n   .-vrm.-r   is  an    4<»'> 


1484  Probate  Law  and  Practice. 

COSTS  AND  COUNSEL  F^ES—Contimied. 
Counsel  fees — Continued. 

executors,  etc.,  for  services  rendered  to — Continued. 

performance  of  duties  of  executors  for  . .  408 

account,  preparation  of   ....  408 
collecting    assets    of    estate, 

for     408 

inventory,  preparation  of    .  .  408 

Deposits  to  cover  Surrogate's   fees    66 

Distribution,  on  application  for  decree  of  54 

Exceptions   to  account,    on    671 

appeal  lies  from  decree  allowing    674 

costs  charged  against  accountant,   when    671 

some  exceptions  sustained  and  some  over- 
ruled   when    672 

counsel  fees   672 

allowed,  when   672 

charged  against  accountant,  when   672 

Fees,  Surrogate  and  Orphan's  Court,  of   62-65 

Orphans'  Court  in 

costs  to  be  paid  to  Surrogate  62 

court  to  adjudge  which  party  shall  pay  54 

decree. of  distribution,  upon  application  for   54 

jurisdiction   of   court  to  allow    53 

notice  to  persons  in  interest  of  application   for    .  .  646 

service  of  notice   646 

minors,  on    646 

taxation  of  costs 62 

Surrogate  to  tax  62 

Prerogative   Court,   in 4 

collection  of   4 

notice  to  persons  in  interest  of  application  for  .  .  23 

service  of  notice    23 

minors,    on    23 

Probate  of   will,   on    230 

common  law,  not  recoverable  at  '  231 

caveator  of,  if  probate  denied  234 

granted   234 

evidence  other  than  that  of  subscribing 

witness  ofifered,  when    234 

expert  witnesses,  of   232 

should  be  selected  by  court  if  fees  are  to  be 

charged  against  estate  233 

historical  sketch  of  legislation   231 

jurisdiction  of  court  limited  by  statute   231 

litigation  unnecessarily  protracted,  when   233 

parties  to  whom  will  be  allowed    232 


Genkral  Index.  1485 

COSTS  AND  COUNSEL  V^ES—Cuutinuai. 

Probate  of  will,  on — Coittiitticd. 

payment  of   ^36 

from  what   fund    J36 

proponent,  costs  of- 2^^ 

statutory  provisions   230 

testamentary  provisions  as  to  payment  of,  effect  of  . .  J33 

Recovery  of  6.2 

execution,  by   6j 

other  methods  provided   bJ 

Suits   for   legacies  and   distributive   shares,   in,   see   Suits  for 
Legacies  and  Distributive  Shares. 

Surrogate,   of    oj 

liable  to  county  for   66 

payable  in  advance  to  66 

penalty  for  taking  illegal  fees   60 

reduction  of   65 

accounting,    on    estate    less    than    $200, 

where    66 

accounting,  on  estate  less  than  $500  and 

over  $200,  where  66 

estate  less  than  $200,  where  65 

$100,  where 66 

taxed,  to  l)e  by  62 

Taxation  of  in  Orphans'  Court   6j 

Surrogate  to  tax  6j 

COURT  OF  CHANCERY— 

Accounts  of  executors,  etc. 

jurisdiction  of  Chancery   631 

accept,  when  will    ^ ''3.? 

concurrent  with  Orphans'  Court   O31 

disinclined  to  accept  (>3^ 

review    of    decree    of-  Orphans'    Court 

allowing    '•.'^5 

Co-Executors,  etc.,  jurisdiction  over  actions  between  4-'> 

Commissions  of  executors,  etc.,  allowance  of  in 689 

Contracts  of  decedent  for  sale  of  lands  jurisdiction  to  enforce.    4_h) 
Creditors    of    estate,    suits    by    against    luii^    and    devisees. 

jurisdiction     ' 

Executors,  removal  of,  jurisdiction  over    

enjoining,  jurisdiction  over '   ' 

Idiots  and  lunatics 

appointment    of    guardian     for,    see    Ciiardiansliif'    of 

Idiots,  Lunatics  mid  Druuhards. 
jurisdiction  over   


i486  Probate  Law  and  Practice. 

COURT  OF  CHANCERY— Continued. 

Idiots  and  lunatics — Continued. 

jurisdiction    over   guardians    of,    see    Guardianship    of 

Idiots,  Lunatics  and  Drunkards. 

contracts  of,  made  while  of  sound  mind,  will  enforce  ..  793 
sale  of  lands  of 

jurisdiction  to  order   787 

Instructions,  may  give  to  guardian  of  idio!  or  lunatic 782 

drunkard 785 

Orphans'  Court,  decrees  of 

jurisdiction  over 49 

accounting,  on    655 

may  set  aside  for   fraud    49 

probating  will  49 

Sale  of  lands  for  debts 

jurisdiction   to   order    479 

restrain   504 

Specific    performance    of    contract    for    sale    of    lands    under 

order  of  Orphans'  Court   505 

when  court  will  decree   505 

vSuits  for  legacies  and  distriliutive  shares,  jurisdiction  over  . .  .  727 

Trustees,   removal   of,  jurisdiction   over    607 

Will,  decree  probating,  will  not  set  aside  for  fraud    188 

CREDITORS  OF  ESTATE,  see  also  Debts  of  Estate. 

Action   by,   against   heir   or   devisee    461 

defences     466 

heir  or  devisee  liable  though  lands  aliened   462 

title  of  bona  fide  purchaser   463 

what  constitutes  an  alienation    463 

judgment 466 

effect  of   467 

form   of    466 

improvements  by  heir  on  lands  aliened,  in 

case  of   467 

jurisdiction  of  Chancery 465 

lies,   when 464 

parties     465 

pleadings    • 465 

answer     465 

complaint     465 

presentation  of  claims,  necessity  for   463 

effect  of   464 

Barred  by  decree,  may  be.  see  Barring  Creditors. 
remedies  of,  see  Barrinq  Creditors. 


General  Index.  14S7 

CREDITORS  OF  EST  ATE— Continucil. 

Distributees,  remedy  against   714 

refunding  bond,  by  suit  upon  715 

pleading 715 

Fraudulent  conveyances  of  testator 

hill  in  chancer}-  to  set  ;^sidc.  may  file  4(V< 

personal  estate  must  be  first  exhausted   468 

presentation  of  claim  necessary  468 

right  may  be  lost  by  laches 469 

impeachment  of  by 467 

Lands    of    decedent,    liability     of    for    debts,    sec    Lands    of 
Decedent. 

Legatees,    remedy    of,    against    714 

suit  upon  refunding  bond,  by   715 

pleading    713 

Presentation  of  claims  under  rule  to  limit  creditors,  see  Barr- 
ing Creditors. 

DEATH— 

Administrator,  of,  proceedings  in  case  of,  see  .S'tihslitutiomiry 
Administration. 

Court  may  decree  person  dead,  when 279 

Executor,  of,  proceedings  in  case  of,  sec  .^uhstitulioiiary  .1,1- 
ininistration  c.  t.  a. 

Presumption  of  after  seven  years   195 

administration  in  case  of,  see  .Idininistratioii  oit 
Presumption  of  Death. 

court  may  decree  person  dead 270 

Probate  of  will,   where  presumed i')5 

DEBTS  OF  ESTATE— 

Advances  by  personal  representative  to  i)ay 541 

allowance  of    54' 

interest  on    54- 

reimbursed  from  real  estate,  may  be  541 

subrogated  to  rights  of  creditors  541 

Advances  by  third  persons  to  pay   54- 

payment   of,   must   look   to  personal   representative 

for    54-' 

subrogation  of  to  rights  of  per.sonal  representative.  54.' 

Allowance  of  claim  by  personal  representative,  necessity  for.  5-M 

Arbitration  of,  power  of  executor,  etc.,  to  submit  to 540 

Barred  by  decree,  may  be.   see  Ihirrinfi  Creditors. 
Compromise  of  claims 

power  of  executor  to  make   54'> 

Counsel  fees,  see  Disbursements  and  Casts  and  Counsel  h'ees. 

Disputed  Claims   S-^" 

arbitration  of,  iiowcr  of  cxi-culor.  etc..  to  submit  to.  540 

95 


1488  ■       Probate  Law  and  Practice. 

DEBTS  OF  ESTATE— Co7;/nn(cd. 
Disputed  Claims — Continued. 

bond  and  mortgage,  claim  on  538 

notice  of  dispute  of   538  /-^ 

suit    may    be    brought    before    foreclosure    of 

mortgage    538 

contest  of 536 

duty  of  executor,  etc 536 

person  in  interest,  by   536 

personal  representative,  by   536 

notice  by  to  bring  suit  within  three 

months    536 

effect  of  notice  536 

statutory  provisions   536 

suit    to    be    brought    by    creditor    witliin 

three  months   536 

debt  barred  if  suit  be  not  brought   .  .  536 
equity,  provisions  include  suits  in   .  .  537 
rejection     of     claims     must     be     un- 
equivocal      537 

rule  to  limit,  provisions  not  confined 

to  claims  presented  under  537 

Executor,  etc.,  due  from 341 

limitations,  running  of  statute  of  against 341 

Executor,  etc.,  liability  of  in  paj-ing 520 

good  faith  presumed  520 

Expenses  of  administration,  see  Disbursoitcnts. 
Funeral  expenses,  see  Disbnrscuiciits. 

Husband,  claim  of  for  moneys  advanced  deceased  wife 526 

Judgments  529 

decree  in  equity    529 

preferred  debt,  when   529 

prima  facie  evidence  of  validity  of  claim   552 

priorities   between    529 

Liability  of  personal  representative  in  paying 520 

good  faith  presumed   520 

Mortgage  debts  546 

devisee,  right  of  to  exoneration  from  547 

heir,  right  of  to  exoneration  from  547 

personal  estate  primar>'  fund  for  payment  of 546 

lands  purchased  subject  to  mortgage,  when  546 

mortgage  assumed  by  testator,  when 546 

presented,  when  may  be 564 

Municipal  corporations,  due  to   533 

priority  of    533 

Partnership   debts    535 

individual  debts  of  deceased  partner  paid  before  535 


Genekai.  Index.  i4tM> 

DEBTS  OF  ESTATE— Continued. 

Payment  of    5_'o 

conflict  of  laws  as  to  priority 535 

executor,  etc.,  by  from  his  own  funds ,. . .  533 

re-imbursed  from  funds  of  estate 533 

estate  insolvent,  when 334 

subrogated  to  rights  of  creditor 533 

executor,  etc.,  due  to  543 

right  of  retainer 543 

no  priority  over  other  claims   544 

to  what  claims  right  extends 544 

debts   barred   by    statute   of 

limitations   526 

foreign  personal  representative,  to   5-' 

when  proper   5-' 

itemized,  claims  need  not  lie  5-f 

judgment  against  personal  representative 552 

prima  facie  evidence  of  validity  of  claim,  is  552 

legacy  to  creditor,  by  34° 

limitations,  barred  by  statute  of 526 

insolvent  estate,  of 5^) 

executor,   etc.,   may   waive   bar 

of  statute   .=;<^) 

lands  sold  to  pay.  when  4^5 

personal  representative  may  pay   526 

debts    due    to    personal    repre- 
sentative    526 

personalty    insufficient     to    pay 

debts,  when  52'*^ 

waiver  of  bar  by  representative r'-' 

promise  to  waive  bar,  how  proved  527 

what  amounts  to ?>-7 

order  of  application  of  assets  to .=^45 

debt  secured  by  mortgage   .S46 

general  rule  stated   .^4^ 

lands  descended  S4^ 

lands  devised  for  payment  of  «lel)i-  54<> 

lands  specifically  devised   SV> 

mortgage,  debt  secured  by   546 

personal  property  primary  fund  .^45 

personalty  not  specifically  be<|ueaihed   .=;4>< 

residuary  real  estate   54" 

specific  legacies  and  flevises SA^) 

specific  legacies,  liability  of  .545 

preference  of  by  personal  representative,  p.-wr  :.s  \<>  ,<; 

Physician's  bill    

priority  of   •"'•''" 


1490  Probate  Law  and  Practice. 

DEBTS  OF  ESTATE— Continued. 

Preferred   debts    528 

claim  of  cestui   against  estate  of  deceased  trustee 

for  misapplied  trust  funds,  not   571 

cestui,  claim  of  against  estate  of  deceased  trustee 

for  misapplied  trust  funds,  not  571 

conflict  of  law  as  to  priority  of  claim  535 

expenses  of  administration    535 

funeral  expenses   530 

amount  allowed   531 

burial  plot    532 

married    woman,    of.    liability    of    busband 

to  pay   530 

wben  chargeable  against  her  estate  530 

mourning  apparel    532 

priority  of    531 

tombstone  532 

judgments . . .  529 

decree  in  equity   529 

priorities   between    529 

which  preferred   529 

municipal  corporation,  debts  due  to  are  not 533 

order  of  priority  of   528 

power  of  personal  representative  to  prefer   535 

presented,  must  be   536 

presented  under  rule  to  limit  creditors,  must  be  .  .  .  564 

priority  of,  order  of   528 

state,  debts  due  to  are  not  533 

United  States,  debts  due  to  are  not 533 

Presentation  of  to  personal  representative  under  rule  to  limit 
creditors,  see  Barring  Creditors. 

Services  rendered  decedent,  claims  for  521 

agreement  to  compensate  for  by  will  524 

general   rule    521 

persons  in  family  relation,  by 522 

application    of    rule    523 

general  rule  as  to   522 

State,  due  to   533 

priority  of   533 

Suit  upon  claim,  executor  may  notify  creditors  to  bring  within 

three   months    536 

claim  barred  unless  suit  lirought  within  time  limited   ....  536 

United  States,  due  to  533 

priority  of   533 

Unverified  claims,  payment  of  560 

allowed  when  just 560 

insolvent  estate  against   561 


Gener-al  Index.  j.gj 

DEBTS  OF  ESTATE-Continucd. 

Widow,  claim  of  for  money  loaned  dectdent   .  ^,- 

retainer  of  by  executrix  widow I2- 

statute  of  limitations  does  not  run  against  -26 

DECREES— 

Amended,  appeal   from,  time  for  takin- 

Control  of  probate  courts  over 

Orphans'  Court,  of   

Surrogate,  of  '  ' 

Correction  of,  power  of  court  as  to   .  . f^ 

Orphans'    Court,   of    

Surrogate,   of    

Orplians'  Court,  of 

authority  of  court  over   ,,    -, 

docketed  in  supreme  court,  what  may  be  "     m, 

executor,  etc..  liable  personally  when   ....  51 

execution  upon   ;_> 

method  of  issuing  . .  sj 

lien  of  upon  lands   ;i 

method  of  docketing -, 

satisfaction   of   decree    ;;_> 

enforcement   of    "  , 

4  ' 

attachment.    l)y    -o 

contempt    proceedings,    by.    see    ('an- 
te in/' t  Proicciiiiif/s. 

injunction,   by    -,, 

ne  exeat,  by   -o 

equity  may  set  aside  for  fraud   ^g 

not  on  probate  of  will   m 

execution,  when  may  issue  upon   :;o 

filed,  not  legally  until  certificate  of  filing  signed  by 

surrogate   y^ 

impeached  collaterally,  cannot  be  48 

lands,  not  linal  as  to  55 

lien   upon   lands,   when    <;o 

abstract  of  to  be   filed   with  county  clerk 50 

recitals  of    50 


recorded,  when  to  l)e 


50 


revocation   of  by  court    -1 

validity  of    4X 

equity  may  set  aside  for  fr.uul   ...  ^q 

not  on  probate  of  will   ^<) 

fraud,  may  be  set  aside  for  in  equity 40 

not  on  probate  of  will   4^ 

impeached   collaterally,  eannut   in-  4K 

jurisdiction  to  make  presumed 48 


1492  Probate  Law  and  Practice. 

D^CR^ES— Continued. 

Orphans'  Court,  of — Continued. 
validity  of — Coufinued. 

valid  though  unlawful  until  reversed   48 

void  when  court  transcends  jurisdiction  ....  48 

void  when  court  transcends  jurisdiction  48 

Prerogative  Court,  of.  enforcement  of   4 

Revocation  of  by  court   '. 68 

Orphans'  Court,  hy  71 

Surrogate,  by   71 

Surrogate,   of    .* 58 

attacking,   method  of    210 

correction  of  by  surrogate   ~i 

finality  of  after  time  for  appeal  has  elapsed 46 

jurisdiction  of  Orphans'  Court  to  review   45,  610 

lands,  not  final  as  to  56 

Orphans'  Court  cannot  set  aside   58 

jurisdiction  to  review   45,  610 

reviewable  only  Iw  appeal    56 

revocation  of  by  surrogate  71 

validity   of    210 

will,  admitting  to  probate,  amounts  to  adjudication 

that  no  doubts  arise  on  face  of   206 

DEPOSITS  IN  TRUST— 

Ownership    of     348 

DEPOSITIONS- 
DC  bene  esse 

Surrogate  may  issue  commission   58 

Foreign  wills 

witnesses  to,  of    211,216 

received,  may  be,  without  production 

of  original  wrill   216 

Surrogate  may  take    216 

Orphans'  Court,  in 

Deputy  Surrogate  may  take  60 

record  of,  admissible  in  evidence  61 

validity  of 61 

Surrogate    may   take    60 

Prerogative  Court,  for  use  in,  who  may  take    29 

Probate   of   will,   subscribing   witnesses   of,    see   Probate   of 
Wills. 

Surrogate,   for  use  before    60 

Deputy  Surrogate  may  take   60 

record  of,  admissible  in  evidence 61 

validity  of   61 

Surrogate    mav   take    60 


General  Index.  1493 

DEPOSITIONS— C"o;ift;i»rty. 

Wills,    to    

both  witnesses  required,   when    -''- 

foreign  wills,  of 

original  will  need  not  In-  iirtxhu-fd   -m6 

Orphans'   Court  may   take    216 

Surrogate    may    take    -16 

non-resident    witnesses,    of    203 

commission,  by   203 

officers  deputized  l>y  Surniijate.  by   JOJ 

one  witness   sufficient,   when    202 

Surrogate  to  take  -'*'- 

Witness  to  foreign  will,  of   -'^ 

received  without  production  of  original  will,  may  hi-  -.m6 

Surrogate  or  Orphans'  Court  may  take  -m6 

DISBURSEMENTS,  see  also  Debts  of  Estatr. 

Administration    expenses,    see    Expenses    of    .Idniiuistrntion. 
this  title  infra. 

Assessments   for  benefits    ??' 

whether  payable  from  income  or  corpus   557 

Betterments  to  real  estate    ?5^ 

whether  payable  from  income  or  corpus   55<> 

Bond,  expense  of  obtaining  surety  3'^ 

chargeable  against  estate   -^'^ 

Broker's  commissions  on  sale  of  real  estate  555 

Burial  lot,  expense  of,  when  allowed ?3- 

Collateral  inheritance  tax   •^'  -^ 

lands  may  be  sold  to  pay   -»^? 

Conflict  of  laws  as  to  priority  of  claims   535 

Counsel  fees  for  services  rendered  execut.jr,  etc.   Aod 

allowed,   when    4'>t»-  407 

when  not   "*  ' 

amount   of   allowance    ^"^-  •*"'' 

executor,  etc.,  attorney,  when    4<>j 

performance  of  duties  of  executor,  etc.,  for  

account,   preparation   of    

collecting  assets  of  estate  4'^ 

inventory,  preparation  of 4«^ 

Debts  barred  by  statute  of  limitations,  see  Dehls  of  Eslnle. 
Encumbrances,  principal  of.  when  i.ayable  out  of  n.come  . 

Expenses  of  administration  ^_ 

collateral    inheritance    tax    '' -^ 

lands  may  be  sold  to  pav    ■*•  5 

fund   chargeable   with    ^ 

lands  may  be  sold  to  pay  ^' 

preferred  debt,  a    


408 
408 


55^' 


1494  Probate  Law  and  Practice. 

DISBURS'EMFMTS— Continued. 

Expenses  of  administration — Continued. 

premium  on  surety  bond   3i8 

safe  deposit  box,  rent  of    377 

traveling  expenses  of  executor,  etc 553 

when   allowed    553 

Funeral    expenses    530 

amount    allowed     53i 

burial   lot    53^ 

married  woman,  liability  of  husband  to  pay   530 

chargeable  against  her  estate,  when    530 

mourning   apparel    53^ 

priority   of 53i 

tombstone    532 

Insurance  of  real  estate    55^ 

whether   payable    from   income   or   corpus 558 

Judgments   against   personal   representative    55- 

judgment  prima  facie  evidence  of  validity  of  claim  552 
Limitations,  debts  barred  by  statute  of,  see  Debts  of  Estate. 

Mourning  apparel,  expense  of.  wlien  allowed  53^ 

"Payable  from  income  or  corpus,  whether   553 

betterments  to  real  estate    556 

general    rule   stated    556 

broker's  commissions  on  sale  of  real  estate   555 

general   rule    stated    553 

insurance    558 

interest   on   encumbrances    554 

municipal    assessments    557 

principal   of   encumbrances    556 

repairs  to   real  estate 557 

taxes,  see  Lands  of  Decedent. 

Payments  made  by  agreement  with  beneficiary   55 1 

improperly  made  but  accruing  to  benefit  of  legatee  549 
Payment  of  debts,  see  Debts  of  Estate. 

Physician's  bill    53- 

priority  of   53- 

Repairs  to  real  estate    557 

whether  payable  from  income  or  corpus   557 

Support  of  decedent's  family,  for  55° 

direction  in  will  for  payment  to  third  person  for  sup- 
port of   family,   when    55i 

direction  in   will  that  "comfortable   support   be   pro- 
vided,"   when     550 

if  allowance   made  by  executor  unreason- 
able, court  will  interfere    550 

Taxes,  see  Lands  of  Decedent. 

Tombstone,  expense  of,  when  allowed  532 


General  Index.  i^y^ 


DISBURSEMENTS— r();;/n,»rrf. 


Traveling  expenses  of  personal  representative  .     ^;< 

Vouchers 


when   allowed    -- ^ 

t)4J 

checks    as     (Uj 

duty  of  executor,  etc..  to  take   ('14.- 

lodged  with  Surrogate  on  accounting;  fi.jj 

right  to  inspect  : t^j 

DISCHARGE       OF      EXECUTORS.      ADMINISTRATORS. 
GUARDIANS  AND  TRUSTEES— 

Accounting  by  discharged  executor   610 

unnecessary  before  application   fur   615 

Application    for    613 

accounting,  may  be  inade  before   615 

granted,    when    61.1 

disadvantage  to  estate,  not   wIkmi    6i.^ 

notice    of    O14 

failure  to  give,  effect  of   614 

service  of   (114 

minors   upon    ()i4 

who  entitled  to  614 

petition   required    (u,? 

two  or  more  may  join  in    014 

Co-executors,   etc 414.  Oio 

exercise  of  power  of  sale  liy  remaining   ....414.  Oio 

office  devolves  upon   remainin.ii    414.  (no 

powers  vest  in  remaining   414,  (no 

Commissions  of  discharged  executor,  etc -     613 

Duties  of  discharged  executor,  etc 613 

Jurisdiction  of  Orphans'  Court   6iJ 

Notice   of   application 614 

failure  to  give,  effect  of   <>I4 

service   of    ("4 

minors,    upon     614 

who    entitled    to    614 

Ordered,  when  will  be    ^*'3 

disadvantage  of  estate,  if.   operates  as.   will   not   lie- 

ordered     '* '  .< 

Particular  trust,   from    '".< 

Prerogative  Court  in 

notice  of  ai)|)licati(in   -7 

service  of  notice    -7 

Procedure,    outline   of    *^7' 

Successor  to  discharged    "'" 

appointment   of    ''"' 

bond   required   on 

form    of '  '" 


1496  Probate  Law  and  Practice. 

DISCHARGE      OF      EXECUTORS.       ADMINISTRATORS, 
GUARDIANS    AND    TRUSTEES— C"o///nn/r(/. 

Successor  to   discharged — Co'iitiiiucd. 

appointment  of — Cuntinncd. 

jurisdiction  of  Orphans'  Court   610 

powers   of    611 

•    When  court  will  order  613 

DISCOVERY  PROCEEDINGS— 

Assets  of  estate,  to  recover  358 

jurisdiction  of  Orphans'  Court   358 

practice    359 

procedure,    outline    of    869 

proceedings   to   obtain    358 

Executor,  etc.,  against,  condition  of  estate  to  disclose   357 

jurisdiction   of   Orphans'   Court    357 

procedure,  outline  of   868 

relief   afforded    .' 357 

when  will  lie   357 

Procedure,   outline   of 868 

Wills,  of   189 

person  in  possession  of  will  refuses  or  neglects  to 

produce  for  proliste.  when   189 

practice   to   obtain    189 

procedure,  outline  of    812 

DISTRIBUTION— 

Absent  persons,  of  estate  of 

presumed  to  be  dead,  when   282 

bond  with  sureties  required  on  282 

trustees  of,  by    302 

Advancements  and  settlements,  see  Adraiicciucuts  and  Settlc- 
ments. 

Child,  unmarried,  of  estate  of   '. 707 

illegitimate,    of    estate    of,    see    Illcyitiiiiate    Children, 
this  title  infra. 

minor,  of  estate  of    707 

Collateral   kindred,  to    707 

degrees  of  kindred,  method  of  calculating  706,708 

next  of  kin  dying  before  intestate  in  case  of  707 

Conflict  of  law   721 

governed  by  law  of  intestate's  domicile   721 

tribunal  by  which  to  be  made    721 

Construction   of  will  by  Orphans'   Court    723 

Decree  for,  of  estate  of  intestate   716 

amounts  to  be  paid  distributees,  should  not  fix   719 

appeal   from    721 


General  Index.  i4<>r 

DISTRIBUTION— r<M)/(;n(,t/. 

Decree  for.  of  estate  of  intestate — Conliniicii. 

application    for   decree    "17 

notice    of    "17 

who  may  make   7  •  7 

counsel  fees  on  application  for 54 

enforcing,  method  of    7-' 

execution  will  not  issue  upon    50 

hearing    7^7 

jurisdiction  of  Orphans'  Court    7i6 

mistake  of  court,  effect  of   7-**' 

cannot  be  set  aside  for  7-''* 

nature  and  office  of    7'^ 

next  of  kin,  proof  of,  may  be  by  affidavit   7'7 

petition    for    7-'.' 

recitals   of    7-3 

verified,  must  be    7-.^ 

who  may  make   7 '  7 

procedure,   outline   of    '^75 

proof  of  next  of  kin  may  be  by  affidavit  7i7 

protection  of,  to  administrator  7-«> 

remedy  of  person  deprived  of  rights  liy  7-' 

validity  and  effect  of    7 "' 

Decree  for,  in  case  of  will  7-- 

appeal  lies   from    7--.  7-4 

time  for  taking   7-4 

counsel  fees  on  application  for  54 

execution  will  not  issue  upon   ?" 

jurisdiction  of  Orphans'  Court    /-- 

construction  of  will  by    7-3 

notice    of   application    7-4 

service  of,  upon  non-residents    7-4 

residents    7-4 

petition    for    "  ^'' 

copy  of  will  to  be  annexed  lo  7-3 

recitals    required    • 7-3 

verified,  to  be   ^'^^ 

876 

procedure,   outline   of    ■  J ^ 

Degrees  of  kindred,  method  of  calculating  706.  7«>' 

Distributive  shares 

.  ,       r                                                       715 

receipts    tor     

acknowledged,  must  )»     7«" 

evidential  value  of   . .                               •  7'  ' 

recorded,  when  may  \n    7"5 

unclaimed,   payment  of  inf.  court,  see  raymcut 

of  Mnucv  into  Court. 

vested,  title  to  after  death  of  distribuUx  ^30 

vests   in   bis  personal   n-pri^eutauve    .UO 


1498  Probate;  Law  and  Practice. 

DISTRIBUTION— Co/z/nnird. 

Drunkard,  of  estate  of   j- 786 

Half-blood,  right  of  to   699 

Husband  and  children,  in  case  of  705 

history  of  legislation    705 

Husband  and  no  children,  in  case  of  705 

history  of  legislation    705 

Idiot  or  lunatic,  of  estate  of  780 

Illegitimate  children   708 

legitimatized,  how    709 

of    estate   of    709 

when  entitled  to,  of  mother's  estate   708 

Law  of  domicile,  controlled  by   721 

Legal  representatives 

construction  of  statutory  term  706 

Made,   when  to  be    698 

Minor  child,  of  estate  of   707 

Mother  of  illegitimate  child    708 

of  estate  of   708 

right  of  in  child's  estate   709 

Next  of  kin 

construction  of  statutory  term   706 

death  of,  before  intestate,  effect  of   707 

degrees  of  kindred,  method  of  calculating  708 

none,  when  there  are    '. . . .  "i i 

investment  for  use  of  poor   711 

Non-resident   minor,   to,   see   Guardians  of  Minors — Rcinofal 
from  State  of  Property  of  Ward. 

Order  of,  table  showing   728 

Partial    intestacy    710 

distribution  in  case  of   710 

what    constitutes    710 

Payment  of  unclaimed  distributive  share  into  court,  see  Pay- 
ment of  Money  into  Court. 

Personal  representatives  appointedvin  two  states,  when    ....  256 
Prerogative  Court  in,  see  Prerogative  Court. 

Procedure,   outline   of    874 

Refunding  bond,  see  Refunding  Bonds.  ' 

Releases  from  distributees,  see  Releases. 

Securities,  of,  when  minors  entitled   725 

court  may  direct   7^5 

petition   for  order  directing    725 

recitals    of     725 

Security  from  legatee  for  life,  executor  may  require   726 

when  not  required   727 

Table  showing  order  of   7-8 

Time    for    698 


General  Index.  1499 

DISTRIBUTION— C'o;i/n/i(c-(f. 

Unmarried  child,  of  estate  of   707 

When  to  be  made   698 

Widow  and  child,  in  case  of 698 

Widow  and  no  children,  in  case  of   707 

DOUBTS  UPON  FACE  OF  WILL— 

Adjudication  of  existence  of  necessary I99 

Citations  to  issue  in  case  of   I95.  '99 

to   whom   issued    195.  '99 

Decree  admitting  will  to  probate  amounts  to  adjudication  tliat 

none   exist    -^*" 

Effect  of,  upon  jurisdiction  of   Surrogate    IM5. '99 

Procedure,  outline  of   o" 

What    constitutes     'W 

DOWER  AND  CURTESY— 

Abolished  by  statute    490 

affects  only  doyver  rights  accruing  since  July  4,  1915  4'A> 
Idiot   or   lunatic,   lands   subject   to.   chancellor   may   fix   gross 

sum  to  be  accepted  in  lieu  of   79- 

Inchoate  right  of 

Prerogative  Court,  in,  see  I'rrrotnUivc  Court. 

Sale  of  lands  free  from   -i'M' 

compensation  to  tenant   493 

computation  of,  method  of   494 

death  of  tenant,  effect  of  494 

deposit  for  benefit  of  tenant,  l)y  49.^ 

investment  of  proceeds   405 

method  of  computing  compensation   494 

payment  of  gross  sum,  liy  493 

'                            tables   showing    ^-'8 

consent  of  tenant  before  order  of  sale  mad.                   ..  4'>i 

after  order  and  before  sak   4'Ji 

disposition  of  proceeds  of  sale   4<>- 

purchaser  to  hold   free  from  such  estate   4»<- 

tenant  divested  of  estate    493 


/hen  lands  will  not  be  sold  freo  from  dcwer 
Table    showing   value   of 


DRUNKARDS— 

Distribution   of  estate   of    • 

Guardianship    of,    see    Cuardianslut^    W    /./'■■'v.    /.«"""-f   .<"'/ 

Drunkards. 
Sale  of  intoxicating  liquor  to  after  iintice   

penalty    for    '''.".".''" 

Sale  of  lands  of,  see  Sale  of  Lauds  by  llxcculors.  .UUmmstra- 


493 
9.>8 


7«6 


7*) 
786 


ors.  Guardians  and  Trustrrx. 


1500  Probate  Law  and  Practice. 

EVIDENCE— 

Admissions  in  will  contest  by  legatee   I73 

when    admissible    I73 

Alteration  of  will 

declaration  of  testator,  admissibility  of   186 

original  will  stands  if  not  properly  attested   181 

presumed  to  be  done  after  execution  185 

Appeal  lies  for  refusal  to  admit  competent   47 

Appeal  from  Orphans'  Court,  on,  see  Appeals. 
Attestation  clause,  see  Probate  of  Wills,  this  title  infra. 
Burden  of  proof,  see  also  Presumptions. 

confidential    relations,    efifect    of    upon,    see    this    title 

infra, 
execution  of  wills,  see  this  title  infra. 
exceptions  to  account,  on 

charges   against   accountant    669 

discharge,  matters  of   669 

matters  of   discharge    669 

undue  influence,  see  Undue  Influence,  this  title  infra. 

Character  of  deceased  subscribing  witness   I73 

when  testimony  admissible  to  attack   1/3 

Confidential  relations 

effect  of  upon  burden  of  proof  162 

general  rule  stated    162 

illustrations   of   rule    164 

when   burden    shifts    163 

when  burden   sustained    165 

Custodian   of   will,   declarations  of    I73 

when  admissible   '^7i 

Deceased  subscribing  witnesses,  declarations  of .  144 

when    admissible    i44 

Declarations 

custodian  of  will,  of   1/3 

when   admissible    I73 

deceased   subscribing  witness,  of    I44 

when    admissible     I44 

testator,    of  - 225 

admissible,   when    i/O.  225 

alterations  in  will,  as  to   186 

illustrations    of    rule     171 

lost  wills,  to  establish    245 

when    admissible    170.  225 

Depositions  de  bene  esse 

Surrogate  may  issue  commission   58 

Depositions   on   probate   of   wills,   see   Probate   of   Wills,  this 
title  infra. 


Gexkral  Inukx.  1501 

EVIDENCE— C'o;;/i;;».-(/. 

Exceptions  to  account,  on    ^^j 

accountant    may    not    tcstit\     .l•^    i..    tran>;itn..ns 

with    decedent    667 

burden  of  proof    669 

charges  against  accountant    669 

discharge,  matters  of.  in  case  of   06g 

general   rules   of.   apply    667 

presumptions     668 

accounts  carelessly  kept,  where   . . .  668 

payment,  arising   from    669 

vouchers,  as  evidence  of  payment   670 

checks,    as    64.' 

duty  of  accountant  to  i)roducc   670 

practice    when    accountant    unable    to 

produce    670 

Execution   of   wills    133 

best  recollection  of  witness,  when  sufficient    i.?.? 

burden  of  proof    1 43 

attestation  clause  defective  or  absent,  where  143 

perfect  attestation  clause    143 

declarations  of  testator    170 

admissibility    of    170 

illustrations   of   rule    171 

declarations  of  deceased  subscribing  witness,  when 

admissible    1 44 

knowledge  of  contents 

method   of  establishing    i.V> 

one  witness  sufficient  to  prove,  when   14.? 

attestation  clause   perfect,   when    143 

signature    by   testator    i.?t) 

not    necessary    that    witnesses    sec    what 

testator   wrote    i.Ui 

presumption  when  witnesses  sign  in  same 

room  with  testator  ijo 
witnesses  not  in  same 

room  with  testator  \  m 
signature  in-  witnesses 

presumption  when  witnesses  sign  in  sanu 

ror)m  with  testator  134 
witnesses  do  not   si^n 
in   room  with  tex- 

lator   i.vj 

statements  by  and  trans.iclions  with  lesi:ii..i            .  j-'S 

admissibility   of    MS 


1502  Probate  Law  and  Practice. 

E\'ID'ENCE— Continued. 

Execution  of  wills — Continued. 

subscribing    witnesses    143,  202 

absent     or     dead,      secondary     proof 

received    142 

character   of    deceased,   testimony   ad- 
missible to  attack,  when    173 

declarations    of    deceased,    when    ad- 
missible       144 

testimony  of  one  sufficient,  when    .  .  143,  202 
testimony    of    others    than    subscribing    witnesses 

admissible    144 

two  witnesses   required,   when    143, 202 

attestation  clause  defective  or  absent,  where. 143,  202 

witness  absent  or  dead    143,  202 

where  witness  absent  or  dead    142 

attestation  clause  defective  or  absent  143 

will   has   perfect   attestation   clause    143 

Expert  witnesses 

selection  of   should  be   made   by  court   when   expense 

charged   against   estate    233 

Fraud,   see  also   Undue  Influence,  this  title   infra. 

character  of  deceased  subscribing  witness    173 

when  testimony  as  to  bad  character  of  ad- 
missible       173 

proof  of  must  be  positive   161 

Knowledge  of  contents  of  will  137 

method  of  establishing   : 139 

presumption   of   knowledge    137,  138 

testator  did  not  read  will,  where   .  .  137 

testator   incapacitated,   where    138 

blindness     138 

foreigner    139 

unable  to  read  or  write  138 

will  in  possession  of  testator,  where.  138 

where    testator    did    not    read    will    137,  138 

testator    incapacitated    138 

blindness    138 

foreigner     139 

unable  to  read  or  write   138 

will  in  possession  of  testator   138 

Inventory 

presumption  arising  from  filing   637 

evidence  to  overcome    637 

Letters  and  papers  of   testator    172 

admissibility  of   I7- 


General  Index.  1503 

E\'IDE1^CE—C 0)1  tinned.  ' 

Lost  wills 

declarations  of  testator  admissible    ^45 

evidence  to  establish    « -'44-  -43 

Misconduct  of  executor,  etc. 

burden  of  proving 37' 

Opinion  testimony  '73 

value  of   '~' 

Presumptions,  see  also  Burden  of  Proof. 

attestation   clause    '  4 ' 

defective,  when    14*» 

rebutted,    may    be    14-' 

recitals   of    presumed    true    141 

exceptions   to   account,   on    t>t^ 

accounts  carelessly  kept,  whin-   ...  66S 

arising  from  payment   6()y 

inventory,  from  filing  of   (*i7 

evidence  to  overcome  637 

knowledge   of   contents   of    will,    see   this    title 

supra, 

revocation  or  alteration  of  will,  in  case  of   ...  li^d 
testator  does  not  sign  in  room  witli  witnesses. 

where    '-'"' 

testator    signs    in    same    room    with    wnnesses. 

where    •  '^'" 

undue   influence,  of.   see   I'nduc   Influence  this 

title  infra, 
witnesses   sign   will   in   room   other   than    with 

testator,  where   '  •'■' 

witnesses  sign  will  in  same  room  with  testator. 

where     '  •'■' 

Probate  of  wills 

admissions  by  legatee   ' '  •' 

when    admissilile    '   -^ 

attestation   clause    '■^" 

evidential   value  of    ....140.14' 

presumption    ma\    In    rtliutled  '4- 

recitals  of  presumed  true  ....  '4' 

defective,    wliere    '4«> 

f  140 

purpose  01    

what  is  meant  l)y '  •*" 

character  of  deceased  subscribing  witness    K\ 

when  testimony  admissilile  to  attack 

declarations   of   deceased    subscribin-.-    "" 

ness  when  fraud  alleged  •  •  •  •■  •' 

whin   adniissibU  i/3 


96 


1504  Probate  Law  and  Practice. 

EVIDENCE— Continued. 

Probate  of  wills — Continued. 

depositions  on    202 

both  witnesses  required,  when  202 

non-resident  witnesses,  of    203 

commission,  by   203 

officer  deputized  by  Surro- 
gate, by   203 

one  witness  sufficient,  when  202 

Surrogate  to  take    202 

evidence    of    formal    execution    of    will,    when    con- 
clusive       220 

fraud 

declarations  of  custodian  of  will   173 

when    admissible    173 

knowledge   of    contents   of    will,    see    Knozvlcdgc    of 

Contents  of  Will,  this  title  supra, 

non-resident  subscribing  witnesses,  depositions  of  . . .  203 

commission,   by    203 

foreign  will,  to 216 

officer  deputized  by  court,  by  203 

opinion  testimony   173 

value  of   173 

record  of  as,  see  Records,  this  title  infra 
testamentary  capacity 

letters   and    papers    of    testator    172 

admissibility  of   172 

testimony  as  to  statements  by  and  transactions  with 

deceased,    admissible    225 

testimony  ot    witnesses   other   than   subscribing  wit- 
nesses  admissible   to   establish   due   execution    . .  202 
■  undue  influence,  see  Undue  Influence,  this  title  infra. 

Publication  of  will,  of   133 

Records 

oaths,  affidavits,  depositions,  etc.,  taken  before  deputy 

Surrogate     61 

probate  of  will,  of  2ig 

transcript  of 

admissibility   of    219 

recorded  in  any  county,  may  be  . .  220 

admissibility  of   220 

validity  and  effect  of 221 

what  record  must  contain    221 

Records  of  surrogate 

evidential  value  of   60 


General  Index.  ,  -r,- 

EYIDEKCK— Continued. 
Revocation  of  wills 

declarations  of  testator  ,j^^ 
partial  revocation 

alterations   presumed    to   have   I.ccn    made 

after  execution    ,g5 

declarations  of  testatqr  ,^ 

presumed  to  have  been  done  sul)sequcnt  to  exe- 
cution      jg^ 

time  to  which  question  of  intent  relates  180 

will  found  among  testator's  papers  cancelled  ...  .  iS) 
Suits  for  legacies 

burden  of  proof   

/J'> 

petitioner,  upon   -,g 

Testamentary  capacity,  of   ,^^ 

burden  of  proof  ,  ,g 

drunkenness  alleged,  when    117 

insanity   existed   prior   to   execution   of 

will,  when    1 15 

person  attacking  sanity,  upon   116 

shifted,   when    ,15 

business  ability  of  testator  material  i  iq 

commission  of  lunacy,  weight  of  1  D 

conduct  of  testator   , ,,) 

business  ability  material   i  K) 

declarations  of  testator i  iS 

as  to  wliether  he  had  made  a  will  i  iS 

competency  of  1  i.M 

drunkenness,  presumption  when  alleged 117 

expert  testimony uj 

to  be  received  with  caution  ijj 

value  of    ijj 

letters  and  papers  of  testator ijj 

admissibility  of   17J 

opinion  testimony,  value  of ui 

admissiljility  of    i ji 

facts  upon  which  opinion  is  based  must 

be  stated  1  jj 

period  within  which  testimony  should  l)e  limited  117 

in  discretion  of  court    11 S 

presumptions 

drunkenness  alleged,  when  117 

insanity   existed    prior    to   execu- 
tion of  will,  where   1 1^ 

reasonableness  of  will,  evidenti.il  v.due  "f  '.-i 


1506  Probate  Law  and  Practice. 

EVIDENCE— ro?;;un(frf. 

Testamentary  capacity,  of — Continued. 

subscribing   witness   to    will    123 

contradiction  of  testimony  by  state- 
ments out  of  court   124 

weight  of  testimony  of    123 

unequal  or  unjust  disposition  of  property  120 

not  evidence  of  lack  of  capacity  120 

such  wills  looked  upon  with  suspicion  .  121 

Testator,  declarations  of  225 

admissibility  of    225 

alteration  of  will,  as  to  186 

lost  will,  to  establish 245 

Transactions  with  deceased   225 

admissibility  of  in  will  contest 225 

Transcript  of  record  of  foreign  probate  admissible 214 

Transcript  of  record  of  prol)ate 219 

admissible  in  evidence   219 

Transcript    of    surrogate's    records    58 

received  in  evidence,  to  be  60 

Transcript  of  will  probated  in  Prerogative  Court  as   4 

Undue  influence,  of 

burden  of  proof  upon  party  alleging 161 

confidential  relations,  eff^ect  of   157.  162 

Inirden  shifts,  when    163 

sustained,  when   165 

general  rule  stated  162 

illustrations  of  rule  164 

condition  of  testator's  mind  material   151 

declarations  of  testator    170 

admissil)ility  of    170 

illustrations  of  ■  rule   170 

mental    state    of    testator,    admissible    to 

prove   171 

indicia  of   151 

health  of  testator,  state  of  material  151 

mind  of  testator,  condition  of  material   151 

declarations  of  testator  admissiltle  to  prove   ....  171 

letters  and  papers  of  testator 172 

admissibility  of    172 

operation  and  eflfect   159 

opinion  testimony,  value  of   173 

presumptions 160 

denunciation     of     person     discriminated 

against  when  does  not  create 154 

favor  will   160 

immoral  relations,  do  not  raise 152 


General  Index.  1507 

EVIDENCE— r(wA/»i(rc/. 

Undue  influence,  of — Coiiti)nicd. 

presumptions — Continued. 

possession  of  and  motive  to  u>e  influence 

do  not  raise  15J.  ibi 

proof  of,  direct  rarely  obtainal)le   151 

ratification  of  will  by  testator,  effect  of   160 

state  of  testator's  litalth  material    151 

EXECUTIONS— 

Bind  lands,  when  50 

Decree  docketed  in  Supreme  Court,  upon   5-' 

fees  of  clerk   5- 

satisfaction  of  decree S^^ 

Decree  of  distribution,  will  not  issue  upon   50 

Decrees  enforceable  by   5^^ 

EXECUTION  OF  WILLS— 

Acknowledgment   of   signature   b\-   testator,   see  Si<jnoturc  hy 

Testator,  this  title  infra. 
Attestation  clause,  see  Probate  of  li'ills. 

Estate  per  autre  vie,  bequeathing  '-'<) 

Evidence  to  establish,  see  Eiidenee. 

Forinal,  conclusively  presumed,  when  -'-"' 

Knowledge  of  contents,  see  Evidenee. 
Publication 

adoption  of  words  or  acts  of  another,  by 131.  '3- 

signing  will  by  testator  sufficient  13- 

testator's  assent  necessary  13'.  '3- 

implied,  when  will  be   '30 

equivocal  acts  or  words  not  sufficient   . .  132 

necessity  of   '  ^" 

time  when  to  be  tnade ^ii 

witnesses,  presence  of  both  necessary  13'.  '33 

Republication  by  execution  of  codicil   '74 

annexation  of  codicil  to  will  unnecessary 175 

effect  of •• '74 

establishes  will  as  it  existed  when  codicil  exe- 
cuted       '74 

language  necessary  to  accomplish   '/tJ 

validates  defective  will  '74 

improperly  executeil    '74 

revoked    will    '"4 

will  of  incompetent   .  ■  '75 

Signature  by  testator ' 

acknowledgment  of,  l)y  testator •^» 

adoption  of  words  of  another,  by  129 


1508  Probate  Law  and  Practice. 

EXECUTION  OF  WILLS— Coutinned. 

Signature  by  testator — Continued. 

acknowledgment  of.  by  testator — Contained. 

implied  by  act  of  testator   129 

made  before  witnesses   sign,  must 

be   129 

signature    acknowledged    must    be 

testator's  128 

assistance,  may  receive   128 

must  be  made  before  witnesses  sign  129 

position  of  signature   128 

statutory    requirements    125 

testator  cannot  authorize  another  to   sign   for   him  127 

when  to  be  made  or  acknowledged  129 

witnesses,  must  be  made  in  presence  of  two 129 

not    necessary    that    witnesses    see    what 

testator  wrote   130 

presence  of  both  witnesses  required  ....  130 
presumption     when     witnesses     in     same 

room  with  testator   130 

presumption  when  witnesses  not  in  room 

with   testator    130 

Statutory   requirements    125 

Witnesses 

acknowledgment  of  signature  of  testator  before  . . .  128 

creditors  may  be   137 

devisees  and  legatees,  when  136 

efifect  on  legacy  or  devise  of   136 

executor  may  be  136 

presence  of  two  necessary  when  testator  signs  ....  130 
presumption  when  testator  signs  in  other 

room   than   witnesses    130 

presumption   when   testator  signs  in   same 

room  with  witnesses   130 

signature  by  133 

addresses  unnecessary   134 

in  presence  of  each  other  134 

request  by  testator  to  sign  135 

implied,  may  be   135 

sign  in  presence  of  testator,  must 133 

not  necessary  that  testator  see  what 

witnesses  write   134 

presumption  when  witnesses  sign   in 

room  other  than  with  testator  . .  134 
presumption   when   witnesses  sign   in 

room  with  testator 134 


General  Index.  icoo 

EXECUTION  OF  WILLS— Continued. 

\\'itnesses — Continued. 

signature  hy — Continued. 

time  when  must  lie  made '  ;; 

who  may  lie   ;; 

Writing,  required  to  be  in   u^ 

character  of  writing  immaterial  99 


ink.  mav  be  in 


99 


partly  written  and  partly  printed,  may  be 99 

pencil,  may  be  in 99 

several  sheets  of  paper,  may  be  on  00 

EXECUTORS — For  matters   relating  to  both   exicuti.r<  .-tn.i   :i(I 
ministrators.  see  that  title. 

Acceptance  of  office  by 208 

implied  from  probate  of  will 208 

According  to  the  tenor,  defined  145 

Accounting,  by,  see  Accounting. 

later  will  probated,  when   2uo 

Acts  prior  to  probate  of  will  valid  97.  tS8 

Appointment  of 143 

conditional,  may  be  148 

delegation  of  power  of 147 

executor  according  to  the  tenor  143 

express  or  constructive,  may  lie 145 

implied,  when    143.  146 

Caveat,  without  power  to  file  io8 

Commissions  of.  see  Commissions  of  Executors.  Administra- 
tors, Guardians  and  Trustees. 

later  will  admitted  to  probate,  when    j  •' 

Conditional  appointment  of   M'*^ 

Constructive  appointment  of   1-43 

Debtor  of  estate,  effect  of  appointment  of 208 

Deceased 273 

duties  of  executor  of   '>i'*^ 

account,  may  be  required  to 618 

not  authorized  to  administer  estate  of  original 

testator  275 

liability  of  for  waste 399 

proceedings    for   appointment   of   successor   to,   sec 
Substitutionary  Administration  c.  t.  a. 
Decedent's  business,  liability  of  in  continuinn,  sec  E.xeeutors 
and  Administrators. 
authorization   in   will,  effect  of.  see  Commissions 
of  Executors,  Administrators.  Cuardians  and 
Trustees. 


1510  Probate  Law  and  Practice. 

EXECUTORS— Contiinicd. 

Delegation  of  power  of  appointment  to I47 

Idiots  and  lunatics,  may  not  be  207 

Infants,  may  not  be  ;  •  •  *  ^°7 

Implied  appointment  of   MS.  146 

Insolvents,  bankrupts,  etc.,  may  be  207 

Married  women  may  be  3'^7 

bond  of.  husband  may  be  surety  on   3^7 

Non-residents,  may  be  206 

security  required  from,  see  Bonds  of  Executors, 

Administrators,  Guardians  and  Trustees. 
power    of    attorney    from,    see    Pozver    of   At- 
torney. 
Powers  of,  see  also  Executors  and  Administrators. 

probate  of  will,  before  97.  188 

relate  back  to  death  of  testator 97,  188 

Refunding  bonds  to.  see  Refunding  Bonds. 
Releases  to,  see  Releases. 

Renunciation  by   270 

administrator   c.   t.   a.,   appointment   of   on,   see 
Administration  c.  t.  a. 

agreement  to  renounce   271 

effect    of    270,  271 

implied   renunciation    271 

caveat,  filing  is  not  271 

retraction  of   272 

right  of  to  renounce 271 

writing,  must  be  in  271 

Trustee,  when  also,  accounts  in  each  capacity  should  be  kept 

separately    293 

Who  may  be 

executor  filing  caveat  against  probate  of  will   207 

insolvents,  bankrupts,  etc 207 

married  women    , 31? 

non-residents    206 

power  of  attorney  required 206 

witnesses  to  will   136 

Who  may  not  be 

idiots  and  lunatics    207 

infants  207 

Will,  of.  discovered  after  administration  granted   371 

remedies  of    371 

Will,  proceedings  by  for  discovery  of,  see  Discovery  Proceed- 
ings. 

Witnesses  to  will,  may  be  136 


Gen eral  I N  Di:x .  1511 

EXECUTORS  AND  ADM1XISTRAT()KS-F..r  maitcrs  relat- 
ing   exclusively    to    executors    or   to    administrators,    see 
those  titles. 
Accounts  of,  see  Accouniiiiij. 

Accountant,  may  not  employ  '-<• 

Actions  against 

none  to  be  Ijrought   for   six   nioiitiis  ;iiur   (U-ii-iiiiit  ^ 

death   539 

statute  does  not  apply  to  foreclosure  suits 53<j 

waiver  of   statute    539 

Administrator,  death  of,  pfocecdings  upon,  see  Siibslitutioiiary 
Adiniiiistratioii. 

Advances  by  to  pay  debts  541 

allowance  of    541 

interest  on    34 1 

reimbursed  from  real  estate,  may  be  541 

subrogated  to  rights  of  creditors  541 

Agents,  employment  l)y   375 

accountant   376 

broker  to  sell  real  estate  3/6 

counsel,  see  Counsel,  Eiiiployincnt  of  this  title  infra. 

detective's   services    3/6 

perform  duties  of  executor,  etc..  to 40^^  • 

account,  preparation  of  408 

collecting  assets  of  deceased  A*^ 

inventory,  preparation  of   408 

pcnver  and  authority   375 

Appeal  from  grant  of  letters  suspends  powers  of 80 

Arbitration  of  claims,  power  to  submit  to 54'i 

Assets  of  estate,  discovery  of,  proceedings  to  obtain,  see  Dis- 
covery Procccdin'^s. 
Bonds  of,  see  Bonds  of  Executors.  Adininistratdrs.  liunrdinns 

and  Trustees. 
Box  in  safe  deposit  vault,  estate  not  chargeable  with  cost  of     377 

Broker  to  sell  real  estate,  may  employ 3/6 

Burden  of  showing  misconduct  of .17' 

Claims  of  against  estate 543 

right  of  to  retain   543 

no  priority  over  other  claims  544 

to  what  claims  right  extends 544 

debts  barred  by  statute  of  limitations 5-^^ 

Co-Executors  and   Co-Administrators,  see  i'o-Ii.veculors,  etc. 

Collection  of  assets  by,  duty  as  to,  see  Assets. 

Commissions  of,  see  Commissions  of  llxeiui->><     l,liii:,n\ii,i- 

tors.  Guardians  and  Trustees. 
Comi)romisc  of  claims  by,  powers  of .'»4'» 


15^2  Probate  Law  and  Practice. 

EXECUTORS  AND  ADMINISTRATORS— Co»/nn/f(/. 

Contracts  of  374 

liability  of  executor,  etc.,  upon  374 

power  to  bind  decedent's  estate  by  374 

Counsel,  employment  of  by 406 

allowance  of  fees  paid  for  permitted,  when 410 

denied,    when     406, 407 

amount  of  allowance   406,  409 

executor,  etc.,  an  attorney,  when  409 

performance  of  duties  of  executor,  etc.,  by 408 

account,  preparation  of   408 

collecting  assets  of  deceased 408 

inventory,  preparation  of 408 

permitted,   when    406,  407 

when  allowance  refused  410 

where  executor,  etc.,  is  an  attorney 409 

Court  of  Chancery 

power  of  to  enjoin   606 

remove 606 

Debts  due  from  to  estate,  assets  341 

runnning  of  statute  of  limitations  against 341 

Deceased  personal  representative  of  cannot  be  called  upon  to 

"                                  pay  legacies  and  distributive  shares   "732 

account  with  substituted  administrator,  must   733 

Decedent's  business,  continuing   372 

commissions,  see  Co>niniss!ous  of  Executors.  Ad- 
ministrators. Guardians  and  Trustees. 

liability  of  executor,  etc 2)7^ 

debts,  for   372 

partnership,  in  case  of   373 

remedies  of  beneficiaries  374 

risk  of  loss,  assumes  373 

will  directs  continuance,  not  affected,  when  372 

services  in  conducting,  payment  of  372 

Discharge    of,    see    Discharge    of    Executors,    Administrators 

Guardians  and  Trustees. 
Discovery  by  as   to  condition  of  estate,  see  Discovery  Pro- 
ceedings. 
Discovery  of  assets  of  estate,  proceedings  by  to  obtain,  see 
Discovery  Proceedings. 

Detectives,  when  may  employ   375 

Duties  of 

account,  to,  see  Accounting. 

distinguished  from  those  of  trustee  293 

in  general  377 

inventory,  to  file,  see  Inventories. 


General  Index.  i-i^ 

EXECUTORS  AND  ADMIXISTRATORS-C\.«/,m/.J. 
Duties  of — Cuiitiniicd. 

produce  will  fur  probate,  to ,yg 

where  will  not  prcscnteil  for  proliate  fur  forty 

days    ■.     ,8g 

Executors  de  son  tort 2qq 

allowances   to    ^.go 

statutory  liability  ui   290 

who  liable  as    200 

Executor,  etc.,  of  a  deceased  executor,  etc. 

duty  to  account   (,ig 

liability  of  for  waste y^, 

powers  and  duties  of _>-^ 

Executor,    death    of,    proceedings    upon,    see    Suhstiliittoiinrv 
Adininistratioii  c.  t.  a. 

Enjoining,  jurisdiction  of  Chancery  (hX) 

Expenditures  of,  see  Disbursements. 
Expenses  of  administration,  see  Disbursements. 

Foreign  executor  or  administrator 25;; 

accounting  by,  see  Aeeouiitiny. 

powers   of    2;^ 

general  rule   255 

letters  of  may  be  recorded  257 

suit  in  this  state,  may  maintain   257 

payment  of  debts  to 521 

Inventories  of,  see  Inventories. 
Investments  by,  see  Investments. 
Lands,  authority  over,  see  Lands  vf  Deeedent. 
Liability  of 

co-executors  etc..  of,  see  Co-E.veeiilors.  etc. 

continuing    decedent's    business   1,7^ 

debts,  of   37* 

partnership,   in  case  of    373 

remedies  of  beneficiaries  374 

risk  of  loss,  assume   373 

executor,  etc.,  of  deceased  executor,  etc..  fm-  w.iMc     ,  I'n  . 

good  faith,  must  show  .; 

interest  on  funds  of  estate,  for  3;. 

account  for  funds  received,  for  failure  to. 393.  31)4 
assets  reserved  for  luirposes  of  administra- 
tion    305 

delay  in  settlement  of  estate  .........  y)^ 

compound  interest,  when  allowed   3<)7 

metiiod   (if    coiniiutiiiK  .V;-; 

computation  of   inlertst    .  3';7 

failure  to  account   for  funds  received   393 

rule  ajjplied  .104 


1514  Probate  Law  and  Practice. 

EXECUTORS  AND  ADMINISTRATORS— Con/nn/rrf. 
Liability  of — Continued. 

interest  on  funds  of  estate,  for — Continued. 

failure  to  invest,  in  case  of   392 

improper  use  of  funds   396 

invest  funds  of  estate,  for  failure  to  392 

rate  of  interest  allowed 397 

when  interest  commences  to  run   397 

loss  and  depreciation  of  assets  400 

bad  investments,  in  case  of,  see  Imrstnicnts. 

bank,  through  failure  of  405 

burden  of  proving   371 

collect  claims  and  assets,  for  failure  to  405 

care,  degree  of  required   400 

estoppel  of  persons  in  interest  to  complain 401 

failure  of  bank,  through  405 

failure  to  collect  claims  or  assets 405 

general  rule  stated   400 

misconduct,    by    402 

mistake,  honest,  protected  from  370 

negligence,   through    403 

sale  of  personal  property   404 

measure  of  lialiility   404 

sale  of  stock,  by   402 

ordinary  prudence  required  from   370 

payment  of  debts    520 

good    faith    presumed    520 

personal  interest  in  estate  transactions,  in  case  of  ...  399 

protected  from  honest  mistake  370 

prudence,  ordinary  required  from  370 

Loans  to,  estate  not  liable  for 374 

creditor  subrogated  to  rights  of  executor,  etc.,  when  . .  375 

Married  women  may  be  317 

husband  may  be  surety  on  bond  317 

Alisconduct  and  mismanagement,  liability  of  for,  see  Liability 

of,   this   title   supra. 
Non-resident 

power  of  attorney  required  from,  see  Power  of 

Attorney. 
security  required  from,  see  Bonds  of  E.recutors, 
Administrators,  Guardians  and  Trustees. 

Partnership  of  which  decedent  a  member 273 

duties  and  liabilities  of   273 

provisions  in  partnership  agreement,  effect  of  ....  373 
Payment  of  debts  by,  see  Disbursements  and  Debts  of  Estate. 


General  Index. 


1^1^ 


EXECUTORS  AND  ADMlXlSTRATORS-C-n/m./.-rf. 

Personal  interest  in  estate  transactit>n>: ;.) 

liability  in  case  of  

Personal  property  of  decedent 

control  over   ^_^; 

duty  of  to  take  possession  of   .  337 

power  of  disposal  of jj; 

property  specifically  beciiRaiiRii    .  337 

sale  of,  power  as  to  .     ,^,^7 

title  in  executor,  etc 337 

Profit  of  from  traffic  in  funds  of  estate  451 

general  rule  stated  45 1 

exceptions  to  rule  45J 

Purchase  by  of  lands  of  decedent  sold  to  satisfy  execution  ....     430 
Purchase  of  lands  In-,  at  own  sale,  see  Sale  of  Lands  hy  Ex- 
ecutors, Administrators.  Guardians  and  Trustees. 

Qualification  of   304 

corporation,  by    205 

origin  of  requirement   204 

Surrogate,  must  be  Iieforc   205 

Removal    of,    see    Removal    of    Executors.    .Idministrotors, 

Guardians  and  Trustees. 
Representative  of  deceased  executor  or  administratDr.  iu)Wi'rs 

of   618 

proceedings    for    recovery    of    unadministcrcd 

estate,  may  take   618 

Responsibility  of.  see  also  Liability  of  this  title  supr.-i. 

good  faith,  must  show .U" 

mistake,  honest,  protected  from 370 

prudence,  ordinary,  required  from  370 

Safe  deposit  box,  rent  of   ,'"" 

Sale  of  lands  by 

estate,  to   l.^ ' 

power  of  sale,  under,  see  Sale  of  Laiids  hy  Executors. 
Administrators,  Guardians  and  Trustees. 
Security  by,  see  Bonds  of  Executor.';.  .Ulmiiiistralors.  Guard- 
ians and  Trustees. 
Removal    of,    see    Removal    oi    /;.i ,  ,  w;  ■  ...    .Uhninislrnlors. 

Guardians  and  Trustees. 
Removed,  successor  to 

powers  of   '"' ' 

actions   whicli   may   maintain 

recovery  of  i)roperty  of  eslate.  for  .     'hi 

removed  representative,  against   ...     <>*■! 

Trust  companies,  may  be,  see  Tru.U  Comfantes. 

Trust  fund,  changes  in  character  of  not  perinitte<l  .<7i 

lialiilitv  in  case  of   .  '   ' 


1516  Probate  Law  and  Practice. 

EXECUTORS  AND  ADMINISTRATORS— Con/u/!u^fi. 

Vouchers,  duty  of  to  preserve 642 

checks  as   642 

lodged  with  surrogate  on  accounting   642 

right    to    inspect    642 

EXECUTORS  DE  SON  TORT— 

Allowances  to   290 

Statutory  liability  of  290 

Who  liable  as   290 

FOREIGN  WILLS— 

Administrator  c.  t.  a.,  of  foreign  will  recorded  in  this  state  . .  444 

exercise  power  of  sale,  may 445 

powers  of  445 

Ancillary  administrator  c.  t.  a.,  power  of 444 

Executors  of,  need  not  file  inventory  212 

Ordinary  or  Orphans'  Court  may  require   212 

Inventory,  executor  of  need  not  file   212 

Ordinary  or  Orphans'  Court  may  require   212 

Probate  of  on  transcript  of  record  of  probate 211 

original  will  of  non-resident,  of  213 

transcript  of  record  of  probate,  on   211 

efifect  of  probate   212 

procedure,  outline  of   814 

proceedings  for  probate  213 

reversal  of  original  probate,  efifect  of   ....  212 
transcript 

contents  of   212 

method  of  certifying  212 

Transcript  of  record  of  probate  of  213 

certified,  how  214 

contents  of   214 

defects  in  records  validated  217 

efifect  of  filing   214,  215 

evidence,  record  of  as   214 

filed,  title  to  lands,  to  make  213 

what  may  be    215 

proofs  of  execution  of  foreign  will   216 

commission  may  issue  to  take 217 

received    without    production     of     original 

will,  may  be  216 

reversal  of  foreign  probate,  effect  of 216 

Witnesses  to 

depositions  of 211,  216 

FRAUD — See  also  Undue  Influence. 

Character  of  deceased  subscribing  witness 173 

testimony  admissible  to  attack   173 


General  Index.  i:;i 


FRAUD— Cotitiiiiicd. 

Declarations 

custodian  of  will,  of 

when  admissible   

deceased  subscribing  witness  of  

when  admissible   

Distinguished  from  undue  influence   

Effect  of,  invalidates  will  which  is  product  of   .... 

False  representations    

acquiescence  in  prejudice  of  testator  not  . . . . 
to  invalidate  will  statements  must  be  false  . . . 
Married   woman   representing  herself  as  single  is 
Proof  of  must  be  positive   


0'/ 


GUARDIANS  AD  LITEM— 

Appeal  from  Orphans'  Court,  on  Hi 

Idiots  and  lunatics,  for 75>7 

application  for  appointment  on  behalf  of  incompetent..  757 

petition    757 

affidavit  verifying  signature  of  per- 
sons purporting  to  have  signed 

them    75<7 

agreement    of    proposed    guartlian 

to  serve  to  be  annexed  to  ....  757 

by  whom  presented   757 

no  application  made  on  behalf  of  incompetent,  when.  . . .  757 

notice  of  application  75^ 

service  of   75^ 

non-residents,  upon   75^ 

residents,   upon    758 

upon  whom  served   758 

petition  for   /57 

by  whom  presented    757 

when  can  lie  presented  7=>r 

Infant,  for 

application    for   appointment   of   on    behalf    oi    uifanl 

over  fourteen   "57 

petition    "57 

affidavit    verifying    signatures    «>f 

infant  and  propo.sed  guardian 

^    ■■  and  age  of  infant   to  l)c  an- 

Reoi                                                        ,  ,,_ 

nexed   /•"'/ 

agreement   of   projtosed   guardian 

'                                           to  serve  to  be  annexed  757 

„j.                                  by  whom  presented   757 


1518  Probate  Law  and  Practice. 

GUARDIANS  AD  LlTZM^Cantiuncd. 

Infant,  for — Continued. 

application     for     appointment     on     liehalf     of     infant 

under  fourteen   757 

petition    757 

affidavit    verifying    signatures    of 
persons    purporting    to    have 

signed  them  757 

agreement   by   proposed   guardian 

to  serve  to  be  annexed  to  ....  757 

by  whom  presented   757 

no  application  made  on  behalf  of  infant,  where 757 

notice  of  application   758 

service  of    758 

infant     under     fourteen, 

when    758 

over     fourteen 

when    758 

non-residents,  upon   758 

residents,  upon  758 

upon  whom  served   758 

petition  for   757 

by  whom  presented    757 

when  can  be  presented 757 

Necessary,  when   757 

Procedure,  outline  of  835 

GUARDIANS  OF  IDIOTS,  LUNATICS  AND  DRUNKARDS 
— See  also  Gnardiaiiship  of  Idiots,  Lunatics  and  Drunk- 
ards. 

Accounting  by,  see  Accounting. 

Appointment    of,    see    Guardiansliip    of   Idiots,    Lunatics   and 

Drunkards. 
Bonds  of,  see  Bonds  of  E.x'ccutors.  Administrators,  Guardians 

and  Trustees. 

Care  and  safe-keeping  of  ward 780 

Contracts  of  ward  made  while  of  sound  mind.  Chancery  may 

enforce    793 

Curator  without  title  to  property  of  lunatic,  is   780 

Debts  of  ward,  duty  as  to  payment  of   782 

Directions  as  to  yearly  sums  to  be  expended   for  support  of 

ward,  may  apply  to  Chancery  for   793 

Drunkards    784 

distrilmtion  of  property  of 786 

instructions.  Orphans'  Court,  may  apply  for  to  .  . .     yS^ 
Chancery,  may  apply  for  to 785 


'  General  Index.  15 19 

GUARDIANS  OF  IDIOTS.  LUNATICS  AND  DRUNKARDS 

— Continued. 

Drunkards — Co)itiiiucit. 

intoxicating  liquor,  sale  to  after  notice  .  7^ 

penalty  imposed  7^ 

Orphans'  Court 

control  over   7^^ 

instructions  to.  may  give   7^^ 

powers  of    7^4-  7^3 

property   of  7^5 

control  of  vested  in  guardian 7^5 

distribution    of    786 

ward  divested  of  control  of  7^5 

sale  of  lands  of    7^6 

Dwelling  house  for  ward  or  his  family,  Chancery  may  direct 

erection  of  "^^3 

Expenditures  for  support  of  ward,  may  apply  to  Chancery  for 

directions  as  to   7''3 

Family  of,  estate  liable  for  support  of  •  • 7^i 

erection  of  dwelling  house  for.  Chancery  may  direct  70.^ 

Funeral  expenses  of  wife  of  "^ ' 

estate  of  idiot  or  lunatic  liable  for.  when 7^' 

Income  from  personal  estate,  application  of  surplus,  to  support 

of  indigent  relations  of  ward,  when  Chancery  will  order  .  .  793 
Instructions  as  to  duty 

jurisdiction  of  Chancery  to  give 7^-.  7^5 

Orphans'  Court  to  give 7^5 

Orphans'  Court 

sale  of  lands,  see  Sale  of  Lands,  this  title  infra. 

jurisdiction  of    70? 

drunkards,  over   7^5 

Partnership,  ward  a  member  of.  Chancellor  may  dissolve 79^ 

Personal  ])roperty  of  ward   7^^^ 

control  of  vested  in  778.  7*^1.  7^4 

curator  without  title  to.  is 7^0 

distribution  of  in  case  of  death  of   7^ 

restored  to  ward  upon  return  to  sanity 7^ 

Power  vested  in  ward.  Chancery  may  direct  exercise  of  7').1 

Principal  of  personal  estate,  use  of  for  supi)ort  of  incompe- 

tent  ;; 

court  may  authorize   77'.  7»^ 

Real  property  of  ward,  power  over   "u^ 

aliened,  not  to  be  without  authority  .  .  « 
devolution  of  upon  death  of  ward                                ..7^'.  7«4 

,  .  780 

repair  rmd  improve,  m.iy    

97 


1520  Probate  Law  and  Practice. 

GUARDIANS  OF  IDIOTS,  LUNATICS  AND  DRUNKARDS 
— Contiuued. 

Removal  from  state  of  property  of  ward   79° 

bond,  when  required   79i 

notice  of  application 792 

service  of   79^ 

order  for  proceedings  to  obtain  791 

when  will  be  made  790)  79i 

Orphans'  Court,  jurisdiction  to  order   790,  791 

procedure,  outline  of    838 

proceedings  to  obtain  order 79i 

when  order  will  be  made   790i  79i 

Sale  of  lands 787 

bond  required  upon  789 

debts  of  ward,  for  payment  of   787 

deed  of  guardian   789 

effect  of 789 

estate  conveyed  by  789 

form    of '. 789 

Orphans'  Court,  jurisdiction  of    787 

petition   for    788 

form   and  contents    788 

verified,  to  be   788 

proceeds   of    sale    787 

payment  of  to  non-resident  guardian  789 

court  may  order    789 

practice  on  application    789 

support  and  maintenance  of  ward  787 

court  may  order  used  for   787 

report  of  sale   '. 788 

affidavits  to  be  annexed  to  788 

form  and  contents  788 

notice  of  intention  to  make   788 

service   of    788 

non-residents,   upon    788 

residents,  upon    788 

verified,  to  be   788 

support  and  maintenance,  for  787 

Support  and  maintenance  of  ward 

directions  as  to  by  Chancery 785 

Orphans'    Court 785 

sale  of  land  for,  see  Sale  of  Laud,  this  title  supra. 

Support  of  family  of  ward,  estate  of  liable  for 781 

Trustee,  when  ward  is,  court  may  direct  conveyance  of  real 

estate  to  cestui   793 

who  may  make  application   793 

Ward  member  of  partnership.  Chancellor  may  dissolve  792 


General  Index.  1:^21 

♦GUARDIANSHIP  OF  IDIOTS.  LUNATICS  AND  DRL'NK- 
ARDS— See  also  Guardians  of  Idiots.  Lumitiis  and 
Drunkards. 

Application     for     

next  of  kin,   rights  of    -jj^ 

notice  of,  when  required   — 8 

"renunciations,   when    required    : —8 

court    may    commit    guardianship 

to  other  than  next  of  kin   ...  7;S 
Appointment  of  guardian 

Chancellor,  by,  without  inquest   777 

practice    on    application    777 

death    of   guardian,    new   guardian    may   be   ap- 
pointed  upon    77,; 

asylum,   incompetent  confined   in   one  year  and 

owning  personal  property    774 

Orphans'  Court,  jurisdiction  of   774 

petition  for   775 

affidavits  to  be  annexed  to  ....  775 
physician     connected 

with    asylum    of  773 
superintendent    of 

asylum,   of    775 

recitals,  to  contain  775 

verified,  to  be   775 

procedure,  outline  of  833 

asylum,  incompetent  committed  to  at  expense  of 
county  whose  estate  does  not  exceed  $1000, 

for    773 

inquest  in  Chancery  unnecessary 773 

Orphans'    Court,   jurisdiction   .if    773 

practice  on  application   774 

procedure,  outline  of   833 

inquest  in  Chancery,  after  77}i 

Orphans'  Court,  jurisdiction  of  773 

procedure,  outline  of   83^ 

transcript  of  Chancery  procecdinKs  filed 

in  Orphans'  Cfnirt   773 

non-resident   incompetent,    f  77 ^ 

application    fur    77 > 

exempli ficd  copy  of  lu- 
nacy proceedings 
in   foreign  stale  ti> 

be  filed   77.S 

hearing  on  776 

proceedings   at  776 


1522  Probate  Law  and  Practice. 

GUARDIANSHIP  OF  IDIOTS.   LUNATICS   AND   DRUNK- 
ARDS— Continued. 

Appointment  of  guardian — Continued. 

non-resident    incompetent,    for — Continued. 

application    for — Continued. 

Orphans'  Court,  juris- 
diction of   775-  777 

practice  on  application  775 

procedure,  outline  of..  804 
rule  to  show  cause  to 

issue  775 

service   of    775 

Asylum,  committed  to  at  expense  of  county  when  estate  does 

not   exceed   $1000    773 

inquest  in  Chancery  unnecessary  772> 

Orphans'  Court,  jurisdiction  of   77i 

practice  on  application  774 

procedure,  outline  of   ^ZZ 

Asylum,  in  one  year  and  owning  personal  property,  where  ....  774 

Orphans'  Court,  jurisdiction  of    774 

petition    for    77^ 

affidavits  to  be  annexed  to  775 

physician    connected    with    asylum 

of    775 

superintendent  of  asylum,  of    ....  775 

recitals  to  contain    775 

verified,  to  he    775 

procedure,  outline  of  ^32) 

Bond  required  on  appointment   778 

amount   of    779 

condition  of   77^ 

'  new  sureties  on.  when  may  he  required 779 

Chancellor,  appointment  by  of  guardian  without  inquest 777 

Chancery,  after  inquest  in    773 

Orphans'  Court,  jurisdiction  of   773 

procedure,  outline  of    ' 832 

transcript    of    Chancery    proceedings    filed    in    Or- 
phans' Court  773 

Death  of  guardian,  new  guardian  may  lie  appointed  in  case  of  779 
Drunkards 

appointment  of  guardians  of   784 

Orphans'  Court,  jurisdiction  of   784 

extent  of  785 

commission  de  lunatico  inquirendo   784 

transcript    of    proceedings    upon    filed 

and  recorded  in  surrogate's  office  784 

when  will  issue  784 


General  Index.  i52J. 

GUARDIANSHIP  OF  IDIOTS,  LUNATICS   AND  DRUNK- 
ARDS— Coiitiiiued. 

Drunkards — Continued. 

transcript  of  Chancery  proceedings   784 

filed  in  surrogate's  office,  to  be 784 

recorded  by  surrogate,  to  be   784 

Nearest  of  kin  entitled 778 

court  may  appoint  other  than   778 

notice  of  application  where  several  equally  entitled.  .  778 

renunciation  where  several  equally  entitled   778 

Non-resident  incompetents,  of  775 

application  for   775 

exemplified  copy  of  lunacy  proceed- 
ings in  foreign  state  to  be  filed  775 

hearing  on   776 

proceedings  at    776 

practice  on  application   775 

procedure,   outline  of    834 

rule  to  show  cause  to  issue 775 

service  of    775 

Orphans'  Court,  jurisdiction  of   775,  777 

Notice  of  application    778 

renunciations  may  be  substituted  for 778 

when  required   778 

Orphans'  Court 

drunkards,  of.  jurisdiction  to  grant,  see  Appointment 

of,  this  title  supra, 
idiots  and  lunatics,  of,  jurisdiction  to  grant,  see  Ap- 
pointnicnt  of,  this  title  supra. 

Procedure,  outline  of   832 

Renunciations  of  next  of  kin   778 

when  required  778 

GUARDIANS  OF  MINORS— See  also  Guardianship  of  Minors. 

Absent  or  absconding  parent,  child  of  755 

authority   of    755 

return  of  parent,  in  case  of  756 

Accounts,  of,  see  Accounting. 

Accountant,  may  not  employ  376 

Administration,  right  of  to  when  ward  next  of  kin  266 

Agents,  employment  of,  see  E.vecutor  and  Administrators. 

Appeal  suspends  powers  of  80 

■   Bonds  of,  see  Bonds  of  E.vecutors,  Administrators,  Guardians 
and  Trustees. 

Buildings  upon  ward's  lands   558,  760 

may  not  erect  558,  760 


1524  Probate  Law  and  Practice. 

GUARDIANS  OF  MINORS— Continued. 

Glioses  in  action  of  ward 

compromise  by   759 

burden  on  ward  seeking  to  impeach 759 

power  to  make   759 

release  of  by 759 

burden  on  ward  seeking  to  impeach   759 

power  to  make   759 

Gommissions  of,  see  Commissions  of  Executors,  Administra- 
tors, Guardians  and  Trustees. 

Gompromise  of  claims  of  ward  by  759 

burden  on  ward  seeking  to  impeach   759 

power  to  make    759 

Gontracts,  power  of  to  enter  into  759 

estate  of  ward  cannot  bind  by  759 

Debts  due  ward   759 

compromise,  may  759 

burden  on  ward  seeking  to  impeach   759 

release  or  discharge,  may   759 

burden  upon  ward  seeking  to  impeach  759 

Discharge    of,    see    Discharge   of  Executors,   Administrators. 

Guardians  and   Trustees. 
Discovery  against  as  to  condition  of  estate,  see  Discovery  Pro- 
ceedings. 
Discovery  of  assets  of  estate,  proceedings  by  to  obtain,  see 
Discovery   Proceedings. 

Encumbrances  on   ward's  lands 760 

satisfy  from  rents,  may    760 

Female    ward,    of    759 

marriage  of,   effect  of    759 

guardianship   devolves  upon  husband    ....  759 

powers  of  guardian  terminate   759 

Guardians   ad   litem,    see   Guardians   ad   Litem. 
Idiots  and  lunatics,  of,  see  Guardians  of  Idiots,  Lunatics  and 
Drunkards. 

Improvements  on  ward's  lands 558.  760 

buildings    erected,     will    not    be    allowed     for 

money  expended   for    558,  760 

Inventories  of,  see  Inventories. 

Lands  of  ward,  power  and  control  over 558.  760 

buildings  upon,  may  not  erect   760 

custody  of,  entitled  to   760 

encumbrances  upon,  may  satisfy  from  rents "60 

foreclosure  sale,  purchased  at  761 

sold  without  order  of  court,  may  be 761 


I>J 


>—  > 


General  Index. 

GUx\RDIANS  OF  MINORS— Cc)»/nuu'</. 

Lands  of  ward,  power  and  control  over — Coiitinut-d. 

leases    of -60 

extending  beyond  ward's  minority  7O0 

voidable  by  ward,  arc   . .  760 

power  to  make  760 

possession  of,  by   760 

entitled  to  7O0 

lease,  may  make  without  order  760 

purchased  at  foreclosure  sale 761 

sold  w^ithout  order  of  court,  may  be  761 

sale  of,  see  Sale  of  Lands,  this  title  infra. 

Leases  of  ward's  lands  760 

power  to  make   760 

extending  beyond  minority  of  ward   760 

voidable  by  ward,  are  760 

Maintenance  of  ward,  see  Sttt^l^ort  ami  Education   of  Ward 
this  title,  infra. 

Married  women  may  be  317 

bond  of,  husband  may  be  surety  on   317 

Non-resident   minors,   of 

removal   of    ward's    property    from    state,    sec 
Removal  from  State  of  Property  of  Ward, 
this  title  infra. 
Non-resident,  power  of  attorney  required,  sec  Poiver  of  At- 
torney. 
Orphans'  Court 

jurisdiction  to  order  sale  of  ward's  lands,  see  Sale 

of  Lands,  this  title  infra, 
order  authorizing  expenditure  of  corpus  or  income, 
see  Support  and  Education  of  ll'ard.  this  title 
infra. 
Orphans  under  fourteen,  of,  see  Guardianship  of  Minors. 

duration  of  appointment  74l^-  7.^'' 

Powers  of   75^ 

appeal  suspends    75** 

custody  of  person  and  estate  of  war. I  75** 

estate  of  ward,  custody  of 75** 

female  ward,  over    759 

guardianship   devolves   ui)on   husband   on   bt-r 

marriage   75') 

marriage 

husband.       ).;uardianshiii       dcMiKis 

upon    75Q 

terminates  guardiansliii) 750 

terminates  witli  her  ni:u  ri:i(.;c  "59 


1526  Probate  Law  and  Practice. 

GUARDIANS  OF  MINORS— Coutiuiied. 
Powers  of — Continued. 

lands  of  ward,  over  758,  760 

buildings,  may  not  erect  upon  760 

custody  of,  entitled  to  760 

encumbrances,    expenditure    of    rents    in    satis- 
fying    760 

expenditure     of     rents     in     satisfying     encum- 
brances    760 

erect  buildings  upon,  may  not  760 

leases,  of  760 

extending    beyond    ward's    minority,    va- 
lidity of   760 

power  to  make   760 

rents,     expenditure    of    in    satisfying    encum- 
brances    760 

person  of  ward,  custody  of 758 

Profit 

not  allowed  in  fixing  allowance  for  maintenance  of  ward  766 

Releases  of  ward's  choses  in  action,  may  execute   759 

burden  on  ward  seeking  to  impeach 759 

power  to  make   759 

Releases  to,  see  Releases. 

Removal  from  state  of  property  of  ward  790 

bond,  when  required  79i 

notice  of  application   792 

order  for 

proceedings  to  obtain   • 79^ 

when  will  be  made 790,  791 

Orphans'  Court,  jurisdiction  to  order  79°,  79i 

procedure,  outline  of   838 

'         proceedings  to  obtain  order  79i 

when  order  will  be  made   790,  791 

Removal    of,    see    Removal    of    Executors,    Administrators, 
Guardians  and  Trustees. 

Safe  deposit  box,  rent  of 377 

Sale  of  lands 

maintenance  of  ward,  for  761 

bond  required  from  guardian   764 

amount  of  764 

when  required   765 

conduct  of  sale,  see  Sale  of  Lands  by  Exec- 
utors, Administrators,  Guardians  and 
Trustees. 

court  will  order,  when   763 

deed    764 

estate  vested  by   765 


General  Index.  15.7 

GUARDIANS  OF  MIXORS— Continued. 

Sale  of  lands — Continued. 

maintenance  of  ward,  for — Continued. 

deed — Continued. 

guardian  to  make ;Xj4 

recitals  of  764 

order  for  761 

Orphans'  Court,  jurisdiction  to  order  761 

t'estamentary  guardian,   In-    J<i2 

petition  for  order  authorizing   762,763 

practice  76J 

recitals    76-',  76J 

verified,  to  be 76J,  703 

procedure,  outline  of    836 

proceeds  of  sale,  disposition  of  in  case  uf 

death  of  minor   765 

real  estate,  is  treated  as 765 

report   of   sale    7^3 

affidavits    of    value    of    property    to 

be  annexed   703 

notice  of  intention  to  make 764 

service  of  7t>4 

non-residents,  upon  . .  7O4 

residents,  upon 7(X4 

under  oath,  to  be  "t)3 

when  court  will  order  sale 7^3 

power  of  guardian  /(X) 

foreclosure  sale,  lands  purchased  at   761 

may  sell  without  order  of  court 701 

grantee  for  ward,  when  guardian  is  7^^ 

may  sell  without  order  of  court 7^' 

lands  purchased  at  foreclosure  sale 76i 

may  sell  without  order  of  cnurt   761 

mistake,  purchased  l)y  "61 

may  sell  without  order  of  court   76t 

right  of   to   purchase   ward's  lands,   see  Sole   of 
Lands  by  E.vccntors,  Administrators.  Cuard- 
ians  and  Trustees. 
Security  required  from,  sec  Ronds  of  U.veeutors.  .Ul mi nist ro- 
tors. Guardians  and  Trustees. 

Successor  to  removed  *"" 

appointment  of   *"" 

bond  required  frdin  ^" 

form  of    <>" 


152S  Probate  Law  and  Practice. 

GUARDIANS  OF  UmORS— Continued. 
Successor  to  removed — Continued. 

powers  of   61 1 

action  against  removed  guardian,  may  main- 
tain     612 

property  of  ward,  may  maintain  action  for 

recovery  of   61 1 

recovery  of  property  of  ward,  may  main- 
tain action  for   611 

removed  guardian 

action  against,  may  maintain  611 

powers  of,  has  all  611 

Support  and  education  of  ward  by 765 

corpus,  order  authorizing  use  of  for.  see  Order  Au- 
thori::ing  Use  of  Corpus  for,  infra. 

disbursements,  actual  only  allowed "66 

duties  of   763 

father  of  ward,  see  Infants. 

loco  parentis,  person  standing  in,  see  Infants. 

mother  of  ward,  see  Infants. 

stepfather,  see  Infants. 

economy  not  preferred  to  welfare  > . .  765 

income  of  estate,  expenditure  of  for  765,  771 

order  authorizing,  see  Order  Authorising  Use 
of  Inco)ne  for,  infra. 

order  of  court  unnecessary  765,  771 

order  authorizing  use  of  corpus  for  769 

ability  of  parents  to  support  to  be  considered  . .  770 

estate  and  condition  of  ward,  court  to  consider  770 

father,  fortune  of  to  be  considered  77'^ 

fortune  of  father,  court  to  consider  770 

granted,  when   77 1 

considerations  controlling  court  771 

notice  of  application  77^^ 

order  fixing  amount  to  be  expended  770 

valid  only  for  one  year  770 

parents,  ability  of  to  support  to  be  considered  770 

procedure,  outline  of 837 

order  authorizing  use  of  income  for 77'^ 

ability  of  parents  to  support  to  be  considered  770 

jurisdiction  of  court  77'^ 

parents    of    child,    ability    of    to    support    must 

be  considered  770 

petition    for    77*^ 

verified,  to  be  ■. 77^ 

practice    77'^ 

procedure,  outline  of   837 

referred,  matter  may  be  770 


General  Index.  1-20 

GUARDIANS  OF  ^^UKORS— Continued. 

Support  and  education  of  ward  liy — Conlttiucil. 

principal  of  estate,  expenditure  of  for  ...  :05.  771 

discretion  of  guardian  -05 

order    authorizing,    see    Order   Authoricittg 
Use  of  Corf'us  for,  supra. 

order  of  court  unnecessary 

profits,  not  allowed  in  tixing  allowance  to  guardian  . .  j(^ 

quality  of  in  discretion  of  guardian 755 

sale  of  lands  for,  see  Sale  of  Lauds,  this  title  supra. 

social  rather  than  physical  necessitv  oritirimi j(^ 

welfare,  economy  not  preferrcii                                       .  -t)^ 
Testamentary 

appointment  of.  see  Giiardianshif'  of  Minors. 

authority  of  74^ 

action  for  injury  to  child,  may  main- 
tain    744 

custody  of  child,  entitled  to 744 

duration  of   744 

injury  to  ward,  may  maintain  action 

for    744 

property  of  child,  over   744 

control  of  by  court 747 

loco  parentis,  stand  in   745 

Trust  funds,  changes  in  character  of  not  permitted 371 

liability  in  case  of   371 

\'ouchers 

checks  as  04J 

duty  of  to  preserve  04J 

lodged  with  surrogate  on  accounting  . .  (<.\j 

right  to  inspect  04_' 

GUARDIANSHIP  OF  MINORS— See  also  hiuirdums  ,■;  ,l/;/;.'/.v. 

Absent  or  absconding  parent,  child  of  755 

authority  of  guardian 755 

return  of  parent,  in  case  of                     756 

jurisdiction   to  grant    755 

notice  of  application   ;■  ' 

service  of   ;. ' 

petition  for   750 

by  whom  madi                                    7S6 

practice  on  application                                    756 

procedure,  outline  of   8^8 

Appeal  from  grant  of  7  \.  75^ 

court,  to  what  taken 74 

Orphans'  Court,  from  appointment  !>>  75^ 


1530  Probate  Law  and  Practice. 

GUARDIANSHIP  OF  UmORS— Continued. 
Appeal  from  grant  of — Continued. 

Surrogate,  from  appointment  by  758 

how  taken   758 

time  limited  for 758 

suspends  powers  of  guardian   80 

time  limited  for  taking  . .  - 74 

to  what  court  taken  74 

Application 

absent    or   absconding   parent,   child   of,    see   this 

title  supra, 
estate  of  minor  whose   father  is  living,  see  this 

title  infra, 
father    living,    upon    estate    of    minor    when,    see 
Estate  of  Minor  IVIwsc  Father  is  Liz'ing.  this 
title  infra. 

I  next  of  kin,  non-resident;  when   754 

non-resident  minors,  see  this  title  infra. 

notice    of,    see   Notice   of  Appli<:ation,   this    title 

infra, 
orphan  over   fourteen,  see  this  title  infra, 
orphan  under  fourteen,  see  this  title  infra. 

trust  company,  by 304 

affidavit,    statement    and    certificate    to    ac- 
company        304 

vice  ordinary,  to 5 

Bond,    see    Bonds    of    Executors,    Administrators,    Guardians 

and  Trustees. 
Discharge  of  guardian,  see  Discharge  of  E.vecutors,  Adminis- 
trators, Guardians  and   Trustees. 
Disputed 

Orphans'  Court,  jurisdiction  of  over  741,  742 

Drunkards,    of,    see    Guardianship    of    Idiots,    Lunatics    and 
Drunkards. 

Estate  of  minor  whose  father  is  living,  upon  . .  .^ 754 

entitled,  who  is   754,  755 

jurisdiction  to  grant  754 

necessity  for  754 

non-resident  minor,  see  N on-Resident  Minors,  this  title 
infra. 

notice  of  application    755 

petition  for   755 

by  whom   made    755 

procedure,  outline  of  829 

who  entitled    754,  755 

Estate  of  non-resident  minor,  upon,  see  Non-Resident  Minors, 
this  title  infra. 


General  Index.  1531 

GUARDIANSHIP  OF  UIXORS—Coutwucd. 

Estate  of  ward 

cannot  be  separated  from  that  of  his  person 741 

Father  living,  upon  estate  of  minor  when,  see  Eslali"  of  Minor 
IVIiosc  Father  is  Living,  this  title  supra. 

Father  living,  when,  distinguished  from  orphan 741 

Female  ward,  effect  of  marriage  of 755 

Guardians  ad  litem,  see  Guardians  aii  Litem. 

Idiots  and  lunatics,  of,   see  Guardianship  of  Idiots.  Lunatics 

and  Drunkards. 
Jurisdiction  to  grant 

Orphans"  Court,  of  45 

disputed,  when   74 1 .  74J 

original,  has    45 

Prerogative  Court,  of  741 

original,  has  741 

Surrogate,   of    74 1 

Letters  of.  see  Letters  of  Guardianshil\ 

recorded  by  surrogate,  to  be  58 

Married  woman,  may  be  guardian   317 

bond  of,  husband  may  be  surety  on 317 

Nearest  of  kin  entitled  to 75o 

absent,  inquiry  required  for  891 

proof  of  to  be  filed  S<^i 

notice  of  application,  see  this  title  infra. 

renunciation  of,  when  required  75- 

Next  of  kin  non-resident,  when   754 

jurisdiction  to  grant  754 

procedure,  outline  of  •  ^-'^ 

Non-resident  guardians 

power  of  attorney  required  from,  sec  Poxcer  I'l 
Attorney. 

Non-resident  minors • 750 

special  guardian  for  property  of 75^ 

jurisdiction  to  appoint   75^ 

procedure,  outline  nf    H30 

removal  of   756.  757 

l)ower  (»f  cuui  t  75'* 

Non-resident  orphan  f»\ er  fourteen  years,  «'f 74** 

procedure,  outline  of             "«* 

Notice  of  application   7S^ 

absent  nearest  of  kin,  in(|uiry  required  fur  ...  •^)« 

proof  of  inquiry  to  be  liled    •'^)' 

entitled  to  notice,  who  is  .  <  53 

renunciation  substituteil  foi  75^ 

service  of,  residents,  upon  7.53 

non-residents,  uiion    -53 

who  entitled  to  notice   • »•••  '53 


1532  Probate  Law  and  Practice. 

GUARDIANSHIP  OF  UmORS—Coufinucd. 

Orphan,  of,  minor  whose  father  is  living  distinguished  from  741 

Orphan  over  fourteen  years,  of   747 

person  and  estate,  is  of  758 

petition    for    747 

affidavit  of  value  of  estate  annexed  to 747 

who  may  make  747 

form   of    747 

recitals  of   747 

signed  by  orphan,  to  be 747 

before  whom  may  be   747 

out  of  state,  when  orphan  is •. .  . .  748 

procedure,  outline  of    827 

selection  of  guardian,  right  as  to 747 

destroyed   by   appointment    of    testamentary 

guardian    747 

guardian    appointed    while    under    fourteen, 

where, 748 

notice  of  application  749,  750 

petition,  how  executed  749 

practice  on  application   . ." 749 

procedure,  outline  of   827 

Orphan  under  fourteen  years,  of 750 

duration    of   appointment    750 

entitled,  who  is,  see  Who  Entitled,  infra. 

petition  for  752 

afifiidavit  of  value  of  estate  annexed  to  747 

by  whom  made   752 

form  of 747 

recitals  of  '. 747 

person  and  estate,  is  of 750 

procedure,  outline  of   825 

testamentary  guardian  appointed,  when   750 

who  entitled 

mother   750 

right  of  subordinate  to  welfare  of  child  .  751 

imfit.  where   751 

next  of  kin  752 

mother,  deceased,  wishes  of  regarded 752 

principles  underlying  selection  of    751 

rights  of   751 

wishes  of  deceased  mother  regarded 752 

Orphans'  Court 

jurisdiction  of    741 

disputed,    when    741,  742 

Ordinary,  jurisdiction  of,  see  Prerogative  Court. 
Person,  of 

cannot  be  separated  from  estate  741 


General  Index.  1533 

GUARDIANSHIP  OF  .MINORS— c'o»//i.'!,,,/. 

Prerogative  Court,  jurisdiction  of .  741 

Procedure,  outline  of   Sj5 

Removal  of  guardian,  see  Rcinozal  0}  Exrcutors.  .hhtiiuistra- 
tors,  Guardians  and  Trustees. 

Renunciation  of  next  of  kin  ,".-_ 

when  required  752 

Residence  of  minors  74^ 

father  dead,  when 74.J 

living,    when    74-J 

Security'   required   upon,   see   Bonds  of  Executors.  Adiniuis- 
trators,  Guardians  and  Trustees. 

Special  guardian  of  property  of  non-resident  miliar 756 

jurisdiction    757 

Surrogate,  jurisdiction  over  74 • 

Testamentary   743 

acceptance  of  necessary  74^' 

method  of  execution  of 746 

appointment  of  guardian 74.^ 

caveat  against  proliate  of  will,  ef- 
fect of   74'J 

common  law,  at  743 

consent  of  mother  necessary   743 

executed   before  will   pro- 
bated, must  be  744 

how  executed.   ...» 743 

control  of  by  court   747 

deed,  may  be  made  by  743 

minor  father,  by 743 

mother,  consent  of  necessary,  see 
Consent  of  .Mother  .\'eee.Ksary. 
supra. 

what  constitutes  an    745 

language  conferring  custody 

and   tuition   sufficient    . .  745 

who  may  appoint   743 

will,   by 743 

min'ir   t'ntlicr.  Ijv    743 

bond  on  grant  of  . . .  746 

amount  of   '4^' 

sureties  on    • "4*^ 

when   required  !'' 

effect  of  appointment  '< ' 

supersedes  guardian  aiM"'mU*l  l)y  com  I  .  745 

mother,  when  may  appoint  744 

procedure,  outline  of    • • ^3« 

Trust  companies  may  be  guardians,  see  Tru.fl  I'.nni'.nn.-s. 
Ward,  female,  eflfect  of  marriage  of 


J  534  Probate  Law  and  Practice. 

HEIRS  AND  DEVISEES— See  also  Lands  of  Decedent. 

Action   against 461 

barred  creditor  may  maintain  582 

creditor,  by   461 

Bond  by,  to  prevent  sale  of  lands  for  debts   474 

amount  of    475 

condition  of   475 

hearing  on  rule  to  show  cause  adjourned  475 

prosecution  of  475 

disposition  of  proceeds   475 

judgment  in  suit   475 

practice   on    475 

Debts  due  from  to  estate  339 

assets,  are    339 

charged  upon  lands  devised,  when   339 

Devisees 

witnessing  will,  effect  of   137 

Judgments    against,    payment    of    from    surplus    proceeds    of 

sale  of  land   518 

Judgment  creditors  of,  may  reach  proceeds  of  partition  sale  . .  469 

Lands  of  sold  for  debts,  may  compel  contribution  519 

Liability  of  for  debts  of  decedent  461 

action  by  creditors  against,  see  Creditors  of  Estate. 

lands  aliened,  in  case  of   462 

alienation,  what  constitutes   463 

bona  fide  purchaser,  title  of  463 

improvements  of  heir  on  lands  aliened 467 

title  of  bona  fide  purchaser 463 

what  constitutes  an  alienation  463 

Mortgage  debts  of  estate 

right  of  to  be  exonerated  from   546 

funds  subject  to  payment  of  mortgage 546 

lands  purchased  subject  to  mortgage 546 

mortgage  assumed,  when   546 

mortgage  of  decedent   546 

Sale  of  lands  for  debts,  may  compel  contribution   519 

IDIOTS  AND  LUNATICS— See  also  Guardianship  of  Idiots, 
Lunatics  and  Drunkards  and  Guardians  of  Idiots.  Luna- 
tics and  Drunkards. 

Executors   207 

incompetent  to  be   207 

Guardians  ad  litem  for,  see  Giiardiuns  ad  Litem. 

Guardians  of,  powers  and  duties  of,  see  Guardians  of  Idiots, 

Lunatics  and  Drunkards. 
Guardianship    of,    see    Guardianshif    of    Idiots.    Lunatics   and 

Drunkards. 


General  Index.  1533 

IDIOTS  AND  Ll'^\T\CS— Continued. 

Lands  of,  see  Guardians  of  Idiots.  Lunatics  and  drunkards. 
Lands  of  subject  to  estate  of  dower  or  curtesy.  Chancellor 

may  approve  gross  sum  to  be  received  in  lieu  of 792 

Partnership,  a  member  of.  Chancellor  may  dissolve 79J 

Sale  of  lands,  see  Sale  of  Lands  by  E.vrrutnrs.  Administrators. 
Guardians  and  Trustees. 
INFANTS— 

Administration 

right  of  guardian  to   2O6 

right  of  to   j66 

Distribution  of  securities  to.  see  Distrihutioii. 

Executors,  incompetent  to  he -•  ^ 

Father,  duty  of  to  support  and  educate 

bequest   to   infant   with    directions   tliat    father  appls 

income  to  support  of  child,  where  767 

disparity  between  fortune  of  father  and  cliild,  when     767 
estate  of  child,  when  chargeable  with  his  sni)port  .  .  .  .*  766 

income  of  father  considered  7t»^' 

Guardians  ad  litem  for.  see  Guardians  ad  Litem. 

Alother.  duty  of  to  support  7(^7 

claim  of  for  care  and  maintenance  not  allowed 70."^ 

duty  same  as  that  of  father  767 

Pyatf  V.  Pyatt  distinguished   76S 

Refunding  bonds  by.  guardian  may  execute  7>4 

Residence  of,  how  determined   74- 

father   dead    when    74- 

living,  when   « 74- 

Stepfathcr.  duty  of  to  support  and  educate  7<'0 

Support  and  education  of  "65 

fatlicr,  duty  of   7^^ 

bequest  to  infant   with   directions  that    father 

apply  income  to  supi)orl  of  child,  when  .  .     7<»7 
court  may  direct  sum  to  be  exiicnded  for,  see 

Guardians  of  Infants. 
disparity  between  fortune  of  father  ami  child. 

when    7'^" 

estate  of  child  cliargeable  with  supiiort.  wluii     7W> 

loco  parentis,  dut\  of  persons  standing  in  7^*' 

mother,  duty  of   '**" 

claim   of   for   care  and   maintenance   not   al- 
lowed        '^"^ 

Pyatf  V.  Pyatt  distinguishrd   7'>^ 

same  as  that  of  father 

stepfather,  duty  of   

Will,  capacity  to  make  

guardianship  of  minr.r  cliild.  will  disposinp  of 

98 


1536  Probate  Law  and  Practice. 

INSOLVENT  ESTATES— 

Account  of  personal  representative   598 

noticed   for   settlement,   must  be    598 

Action  for  waste  not  affected  by  decree  of  insolvency 597 

Actions  against  personal  representative 

decree  of  insolvency,  what  may  be  brought  after 587 

effect  of  application  for  decree  of  insolvency  upon  .  . .  586 

execution  will  be  stayed,  when  587 

method  of  staying  execution    587 

Application     584 

effect  of,  on  pending  actions   586 

actions  against  personal  representative   .  .  .  587 

what  may  be  brought  587 

method  of  staying  execution    587 

stayed,  when  execution  will  be 587 

more  than  one  executor,  where    584 

rule  to  limit  creditors  taken,  when   585 

'                               application,  when  may  be  made 585 

practice    585 

procedure,  outline  of    853 

several  executors,  where  . . . .' 584 

Decree  of  insolvency   596 

action  for  waste  not  affected  by   597 

effect  of  597 

granted,   when    596 

lands 

sold,  may  order    596 

other  counties,  lands  in   596 

other  counties,  method  of  selling  lands  in   596 

proceedings  after  entry  "of    598 

reconsideration    of    597 

waste,  action  for  not  affected  by   597 

personal  representative,  what  actions  may  be  brought 

against  after  587 

when  granted   596 

Disputed   claims    594 

creditor  may  elect  to  proceed  at  law  or  in  equity  .  .  595 

proceedings  when   595 

Orphans'  Court  may  try   594 

Distribution  of   598 

creditors  to  share  pro  rata 584,  598 

expenses  of  administration  to  be  first  paid 598 

prefered  claims  to  be  first  paid  598 

residue  after  payment  of  debts,  disposition  of....  599 

Exceptions  to  account  of  assets   593 

appeal  from  decree  on 595 

extension  of  time  for  filing 594 


General  Indkx.  i;^- 

IXSOU  EXT  liSlATES— Con liiuicii. 

Elxceptions  to  yccuunt  of  assets — C"(>H/iiMit'</. 

hearing  on    , ,, , 5q_I 

when  may  be  filed  jg^ 

who  may  file  jg^ 

Exceptions  to  claims  of  creditors   5yj 

appeal  from  decree  on    595 

extension  of  time  for  tiling;   5^ 

hearing  on    594 

i  when  may  be  filed    594 

5  who  may  file   593 

Limitations,  statute  of.  representative  may  \vai\i-  l>ar  of s,St) 

Notice  to  creditor 

form  of   588 

publication  of    587 

Notice  of  filing  report  of  claims  and  assets  595 

^  publication    of     593 

Payment  of   unverified   claim    561 

•  liabilit}"   of   personal   representative    561 

Pending  action  against  personal  representative,  ett'icl  iipcii  nf 

application  for  decree  of  insolvency    5f<0 

execution  stayed,  when   will  be    587 

method  of  staying  execution   587 

when  execution  will  be  stayed  587 

method  of  staying   587 

Practice     5q8 

Preferred   debts   5j8 

expense?  of  administration  iircfcrrcd   598 

payment  of    5<)8 

Presentation  of  claims 

Ijarred  by  statute  of  limitations   5Ny 

claims  which  need  not  be  presented   590 

commencement  of  suit  not  equivalent  to 561 

effect  of  presenting  claims   590 

effect  of  not  presenting  claims  591 

creditor  barred   from   recovering   501 

extension  of  time  fnr  (iresenting  588 

limitations,  claims  liarred  hy  statute  of   58«j 

method  of  5^8 

order    limiting   time    fur    ,.  5H4 

preferred  claims  must  he  prtsciilid   ,  590 

presented,  claims  which  need  not  lie  Vjo 

representative  may  jirescnt  <>wn  claim   5«>ii 

suit,  commencement  of  not  (•«|uivalent  to 561 

under  oath,  to  be  .^W 

form   of   aftidav  it    .  .  ^'j<> 

when  to  be  presented   ,  '-'^ 


1538  Pkobate  Law  and  Practice. 

INSOLVENT  ESTATES— ro;//i"»7rr(/. 

Procedure,   outline  of    849 

Report  of  claims  and  assets  59- 

exceptions   to    593 

appeal  from  decree  on   595 

extension  of  time  for  filing  594 

hearing  on    594 

when   may   he   filed    594 

who   may   take    593 

filed,  when  to  he 593 

form   and  contents   of    59-2 

made,  when  to  he   593 

notice  of   filing   593 

puhlication    of    593 

when  to  he  made  and  filed   593 

Rule  to  limit  creditors  taken,  proceedings  when  585 

application,  when  may  he  made   585 

practice    585 

procedure,    outline    of 853 

when  application  may  he  made   585 

Sale  of  lands    596 

conduct  of,  see  Sale  of  Lands  hy  Executors,  Administra- 
tors. Guardians  and  Trustees. 

court   may  order    596 

method  of  selling  lands  in  other  counties   596 

other  counties,  lands  in   596 

Set-off  hy  dehtor  of  claims  due  to  him    59- 

Waste,  action  for  not  affected  hy  decree  of  insolvency  597 

INVENTORIES— 

Ahsent   person,   trustee   of    302 

Affidavits  to,  who  may  take  36in 

Appeal  from  order  of  Orphans'  Court  respecting  fairness  of 

time  limited  for  taking  80 

amended  decree,  from  82 

method  of  computing 81 

when  time  hegins  to  run  81 

Appeal   from  proving  of  hy   surrogate    74 

court,  to  which   taken    74 

time  limited  for  taking 74 

Appraisers,  appointment  of    361 

exemption  of  $200  desired,  when  368 

affidavits    of    : 368 

appointment   of    368 

surrogate  must  appoint   368 

Citation  to  file,  practice 3^- 

procedure,   outline   of    842 


Genekau  Index.  1531; 

INVENTORIES— C'cj;;/i-;/».-c/. 

Exceptions  to    ,,, 

tiled  at  passing  of  account,  may  Ik  364 

jurisdiction  of  Orphans'  Court    363 

Orphans'  Court,  jurisdiction  of   ^^^ 

procedure,   outline   of    g^j 

time  for  filing   3f,^ 

Excuse   for  not  filing    362 

Executors  and  administrators,  of  360 

affidavit  of  one  appraiser  sufficient,  when  361 

affidavit  to,  who  may  take  36111 

appraisal  of  personal  property  rctiuircd   360 

appraisers,  appointment  of  361 

when  $200  exemption  is  desired 368 

filed,  when  to  be    360 

neglect  to  file   36^ 

excuse    for    36J 

penalties    for    363 

attached  for  cnntcmpt.  may  he  ..  363 

removed,  may  lie   362,  363.  604 

proceedings  on  362 

procedure,  outline  of    830 

proving,  method  of    361 

specific,    must   be    360 

time    for    filing    360 

when  to  be  filed  360 

Executor  of   foreign  will  need  not  file   -.'12 

Ordinary  or  Orphans'  Court  may  re(|uir( 
Failure  to  file 

attached  fur  contempt  for,  executor,  etc.,  may  be   ...  y^^ 

citation  may  issue   3^- 

practice    36.? 

excuse   for    36.i 

executor,   etc.,   may   be   removed    for    362,  363,  604 

penalties    for    ^f*^ 

attached  for  contempt,  ni:i\  b.-       363 

removed,  may  he   36^.  3^3'  6o4 

removal  of  executor,  etc.,   for  362.  363,  (^ 

Fairness  of,  method  of  inquiring  into  .  .  

account,  on  passing  of   

jurisdiction  of  Orphans'  Couri 
Orphans'  Court,  jurisdiction  ni 

passing  'if  account,  on  

Family  of  decedent,  allowance  to  .  . 

allowed,  when  not    

fann'ly,  who  deemed  to  have  left    

nature  nnd   purpose  of  alliiwan<'-  '  ' 


3<M 
.V\\ 
.<'»3 

366 

1^) 


1540  Probate  Law  and  Practice. 

INVENTORIES— aw/t;;;(rd. 

Family  of  decedent,  allowance  to — Conlinncd. 

procedure,  outline  of  840 

proceedings  to  obtain    367 

appraisers  to  be  appointed  by  surrogate..  368 
list  of   property   selected  veri- 
fied      368 

necessity    for    making    se- 
lection      368 

purpose  and  nature  of  allowance   366 

statutory    provisions     366 

title  to  property  selected,  when  passes   369 

when  family  of  decedent  takes  title   369 

when    not    allowed    366 

who  deemed  to  have  left  family   366 

Filed,  when  to  be   360.  364 

excuse  for,  when  not   362 

Prerogative  Court,  in 19 

unnecessary,  when   362 

Foreign  Will 

executor  of  need  not  file  212 

Ordinary'  or   Orphans'   Court   may   re- 
quire      212 

filed,  when  required  to  be  212 

Guardians,  of   364 

appraisal  not  necessary   365 

filed,   when   to   be    364 

neglect  to  file   '. 365 

penalty   for    .- 365,  604 

proceedings  on    365 

penalty  for  neglect  to  file   365.  604 

procedure,  outline   of    841 

on  neglect  to  file   365 

real   estate,   to   include    365 

time    for    filing    364 

when  to  be  filed   364 

Jurisdiction  over  controversies  as  to  fairness  of   41 

Objections  to,  method  of  raising   363 

account,  on  passing  of   363 

jurisdiction   of   Orphans"   Court    363 

Orphans'    Court,   jurisdiction    of    363 

passing  of  account,   on    363 

■     time    for    363 

Orphans'    Court,    jurisdiction    over    controversies    as    to    fair- 
ness of   41 

Preparation  of,  fees  paid  for  not  allowed   408 


General  Index.  1541 

INVENTORIES— roH7j>M(r(/. 

Prerogative  Court,  transmission  of  to   '.> 

Presumption  arising  from  f.ji; 

evidence  to  overcome  637 

Procedure,  outline  of   830 

Property  to  be  inventoried  36J 

personal  property  only    36-' 

Recorded   by    Surrogate,    to   be    59 

Specific,  must  be 360 

Transmission  of  to  Prerogative  Court,  duties  of  Surrogate  . .  60 

Trustee,  absent  person,  of  302 

Unnecessary,    when • 36J 

executor  of  foreign  will  need  not  file 212 

Ordinary  or  Orphans'  Court  may   re- 
quire      21-' 

What  to  be  inventoried,  see  Assets. 

INVESTMENTS— 

Account,  statement  of  to  be  annexed  to 636 

Authority  of  executors,  etc..  as  to 379 

statutory  limitations  upon   37*i 

Bank  stock,  in    3^5 

liability    of    e.xecutor.    etc 3^S 

Bonds    378 

foreign  states,  in  which  permitted 3/8 

mortgage,  secured  by 379 

municipal    ^7^ 

New  Jersey,  State  of,  permitted   37^ 

other  states,  in  which  permitted    37^ 

railroad    37o 

school    378 

secured  by  mortgage  379 

when    permitted    379 

State  of  New  Jersey,  permitted  37^ 

United  States,  of  ^'^ 

Changes  in,  statement  of  to  be  annexed  to  account 636 

Co-Executors  and  administrators,  by   380.  4«5 

Continuation  of  decedent's  3** 

direction  of  court  as  to,  may  obtain  39° 

court  not  restricted  by  statute   379 

notice  of  api)lioation   39' 

duty  in  case  of  doubts  as  to  propriety  of  380 

liability  in  case  of   3** 

Directions  as  to,  in  will  ■^ 

construction,  strict  rule  of  applieil  "-^ 

liability  in  case  of  ^ 

strict  rule  of  construction  applu-d   .  ,  '  •« 


J  542  Probatk  Law  and  Practice. 

INVESTMENTS— Co»/i;HU'(i. 

Directions  as  to,  in  will — Continued. 

"to  fund"  construed   388 

"to  invest  a  sum  sufficient  to  produce  a  fixed  an- 
nual income''   388 

"to  invest  in  productive  real  estate" 388 

Direction  of  court,  as  to,  may  seek   389 

application,  when  should  be  made  390 

continuance     of     decedent's,     power     of     court     to 

authorize    390 

notice    of    application    391 

duty  of  executor,  etc.,  as  to  389 

powers  of  court    390 

not  restricted  by  statute  379 

time  for  making  application    390 

when  application  should  be  made  390 

Duties   of   executor,   etc t,77,  392 

failure  to  find  proper,  report  to  court  in  case  of.  .377.  392 
report  to  court  required  in  event  of  failure  to  find 

proper    377,  392 

accountable    for    interest    for    failure    to 

make  377,  392 

Foreign  states,  in  bonds  of  378 

when  permitted    378 

Inability  to  make,  duty  in  case  of  377,  392 

Liability  of   executor,  etc.,  for  interest  in  case  of  neglect  to 
make,  see  Executors  and  Administrators. 

Liability  of  executor,  etc.,  in  case  of  loss   381 

bank  stock 385 

continuation  of  decedent's  investments,  in  case  of  .  . .  380 

general   rule    381,  400 

limited  by  will,  where  382,  387 

liability  measured  by  terms  of  382 

strict  rule  of  construction  applied..  383 

personal  security    384 

second   mortgages    383 

breach  of  trust,  investment  in  is  not 383 

purchase   money  mortgages    384 

statute,  when  funds  invested  otherwise  than  as  di- 
rected by    381 

continuation  of  decedent's  investments  380 

good  faith,  effect  of   382 

improper    investment    stated    in    account    al- 
lowed by  court  no  protection   382 

will,  when  directed  by   382 


GenkKAL   InuKX.  1:^^j 

INVESTMENTS— Co^//,/n<ri/. 
Loss  from 

apportionment  of  between  life  tenant  ami  remain- 
derman      .J 

liability    for.    see    UMlity   of   Executor,   etc..  in 

Case  of  Loss,  this  title,  supra. 

Mortgages,  in  what  permitted  

foreign  states,  on  lands  in   i^-r 

J*- J 

second,  liability  in  case  of  investment  in  jiJ3 

purchase  money  niDrtgage   384 

Municipal  bonds,  in  what  permittetl   '. 378 

liability  in  case  of  investment  in  unautiiurized 385 

Personal   security,  in    ^ 

liability  of  executor,  etc 38^ 

Railroad  bonds,  in  what  permitted   378 

Real  estate  in,  authority  of  to  make  386 

School  bonds,  in  what  permitted   :^JS 

liability  in  case  of  investment  in  unauthorized 3H5 

Second   mortgages,   in    ^}<3 

breach   of   trust,   investment   in    is   imt    3S3 

purchase  money  moj-tga.ui'  3S4 

liability  of  executor,  etc 3S4 

Securities  in  which  executor,  etc.,  may  invest  378 

foreign  states,  bonds  of  378 

mortgages ^yij 

municipal  or  school  bonds   378 

liability    in    case    of    investmint    in    un- 
authorized                     385 

New  Jersey,  bonds  of  State  of  378 

railroad   bonds    378 

savings  banks,  in  securities  in  which  may  invest....  379 

state    bonds     378 

foreign   states    378 

New  Jersey   378 

United  States  bonds   378 

State  bonds,   in    irS 

bonds  of   New  Jersey   

other  states .v""- 

Statement  of  to  be  annexed  to  account  636 

Testamentary  directions  as  to  3$7 

construction  of,  strict  ruk'  applied 3^2 

directions,    particular   jthrases   construed    .V^ 

liability  limited  t)y  ^^ 

particular  i)hrases  cimstrued   .?S8 

strict  rule  of  construction  applied  ...  '^-• 

"to  fund'' 


1544  Probate  Law  and  Practice. 

mVESTWENTS— Continued. 

Testamentary  directions  as  to — Continued. 

"to   invest  a   sum   sufficient   to   produce   a  fixed 

annual   income"    388 

"to  invest  in  productive  real  estate" 388 

Will,    directions   in   as   to,    see    Testamentary   Directions,  this 
title,  supra. 

JOINT  BANK  ACCOUNTS—  "^ 

Ownership   of    345 

intent  governs,  when   345 

Survivor  shall  take,  when  account  provides  that 347 

JURISDICTION  OF  COURTS— 

General  and  limited,  distinction  between  courts  of  42 

Limited  and  general  distinguished  42 

Limited    and    special    distinguished    70 

Orphans'  Court,  see  Orphans'  Court. 
Prerogative  Court,  see  Prerogative  Court. 

Special  and  limited  distinguished  70 

Surrogate's  Court,  see  Surrogate. 

LANDS  OF  DECEDENT— 

Administrator 

application  of  personal  property   for  benefit   of, 

by    425 

authority   over    424 

foreclosure  sale,  lands  purchased  at  352,  424 
may  sell  without  order  of 

court    325-424 

lands  purchased  at  foreclosure  sale  352,  424 
may      sell      without     order     of 

court    352,424 

lands  purchased  by  mistake   42; 

ma.v      sell      without      order      of 

court    425 

mistake,  lands  purchased  by  425 

may    sell    without    order    of 

court    425 

discharge  by  of  encumbrances  on  427 

personal    property,    application    of    for    benefit 

of,   by    425 

rents  and  profits  of  426 

sale  of  lands  for  debts,  see  Sale  of  Lands  for 
Debts. 


General  Index. 


LANDS  OF  DECEDHXT-r<.»/n,».-(/ 
Administrator  c.  t.  a 


1.5^' 

power  of  sale,  sale  under,  see  Salt-  of  Lands 
by  Executors,  .ldniiii!(ir.,t,,r<  Cuardimis 
and  Trustees. 

powers  over   ,,q 

foreclosure  sale,  lands  purchased  at  33-'.  424 
may  sell  without  order  of 

court  35-'.  4^ 

lands  purchased  at   foreclosure  salc.35_',  4J4 
may     sell      without     order     of 

^■ourt    35-'.4-M 

lands  purchased  by  mistake 4J5 

may  sell  without  order  of  court.  4J5 

mistake,  lands  purchased  hy   4J5 

may    sell    without    order    <.f 

court    4.>5 

sale  of  lands  for  debts,  see  Sule  of  Lands  for 

Debts. 
sale    of    under    power    of    sale,    see    .S',;/,-    of 
Lands      by      Executors,      Administrators. 
Guardians  and  Trustees. 

Assessments    for    benefits    357 

income  or  corpus,  whether  payable  from   337 

Assets  for  paj-ment  of  debts,  as  350 

foreclosure  sale,  lands  purchased  at   35J.  424 

mistake,  lands  purchased  by 4J3 

will  directs  sale  of  land,  when    33«i 

Betterments,  whether  payable  from  income  or  corpus   536 

Broker's  commission  for  selling,  payable  out  of  corpus  333 

Co-Executors 

foreclosure  sale,  estate  in  land'^  purcliaseii  liy  at.  413 

Contracts  of  decedent  for  purchase  of  430 

executor  may  perform   430 

Contracts  of  decedent  for  sale  of   4_'7,  43f) 

fulfillment   of    4-7 

proceedings   to   enforce    4-*^ 

ordered  by  court,  when  may  be  4J7 

chancery,  jurisdiction  of    .    ..,  429 

parties   ....  !  " 
Contracts  for  sale  of 

personalty,  lands  regarded  a"-  3.^4 

Conversion  of  by  contract  of  sale  3.^4 

Conversifjii  of  by  terms  of  will  35" 

directions  which  aiiioniil   !<■  35' 

implied,  when    . .  J.^i 

Crops  and  products  of  land   '•* ' 


1546  Probate  Law  and  Practice. 

LANDS  OF  DECEDENT— Confn;/(c'J. 

Declaration  of  trust  made  by  decedent 

proceedings  to  enforce  429 

Devisees  and  heirs,  right  of  to  exoneration  from 

encumbrances   upon,    see   Encuvibranccs    upon,    this 
title  infra. 
Division  of 

practice  on  application  for  921 

Prerogative  Court,  jurisdiction  of   29 

Encumbrances  upon 

discharge  of  by  personal  representative   427 

exoneration,     right     of     heir     or     devisee     to 

from  personalty 546 

fund     subject     to     payment     of 

mortgage    546 

lands  purchased  subject  to  mort- 
gage         546 

mortgage  assumed,  when   546 

mortgage  of  decedent,  from  ....      546 

interest  on  payable  out  of  income  556 

Estate  in,  purchased  by  co-executors   415 

Estate  per  autre  vie,  in   354 

personal  property,  is  354 

Exchange  of  lands    437 

Executors 

authority  of  over    424 

foreclosure  sale,  lands  purchased  at   ..352,424 

lands  purchased  by  mistake  425 

at  foreclosure  sale   ...352.424 

limited  by  terms  of  will 424 

mistake,  lands  purchased  by  425 

personal  estate,  use  of  for  benefit  of   . . .     424 
co-executors,  estate  of  in  lands  purchased  at  fore- 
closure sale  424 

discharge  of  encumbrances  upon  '. 427 

rents  and  profits  426 

sale  of  under  power  of  sale,  see  Sale  of  Lands  by 
Executors,      Administrators,      Guardians      atid 
Trustees. 
Exoneration  of  from  encumbrances,  see  Encumbr'"  i,ces  upon, 

this  title  supra. 
Heirs    and    devisees,    right    of    to    exoneration    from    encum- 
brances, see  Encumbrances  upon,  this  title  supra. 

Insurance  on,  whether  payable  from  income  or  corpus   558 

Liability  of   for   debts    457 

dower,  lands  devised  in  lieu  of   460 

general  rule   457 


General  Index.  i-.- 

LANDS  OF  D-ECEDE^T-Continucd. 

Liability  of  for  debts— Continued. 

lien  conferred  bv  statute  .  .-a 

"    ^  ••  •  4.->P 

conveyance,  effect  of  ^  . 

dower,  lands  devised  in  liai  ..t    , 4-g 

duration  of   

45*^ 

proceeds  of  sale  of  lands  ,^ 

condemnation  proceediufis.  under   461 

partition   sale    460 

sale   for   payment   of   debts   see   Sale   of  lands  for 
Debts. 

will,  when  charged  with  dei)ts  by   45- 

Payment  of  debts,  sale  of  for.  see  Sale  of  Lands  for  Debts. 

Proceeds  of  sale  of   35 '  460 

interest  on,  when   personal   projierty    ^54 

judgments  against  heir  or  devisee  may  be  |)aid  from 

surplus     -ij< 

liability  of  for  debts   ^i;_>  4^0 

condemnation  proceedings,  of 460 

partition  sale,  of 460 

,        nature  of  ^-2 

partition    proceedings,    under,    judgment    creditors 

may   reach    46,, 

real  property,  when  regarded  as   35^ 

Rents  and  profits  of 

administrator,    right   of   to 4^6 

assets  for  payment  of  debts,  when  354 

executor,  right  of  to   4_>6 

Repairs  to,  whether  pavable  from  income  or  corpus  5^7 

Sale 

administrators  c.  t.  a.,  by.  under  power  of  sale,  see  Sale 
of  Lands  by  E.reciitors.  Administrators,  Guardians 
and  Trustees. 

co-executors.  i)y   414 

lands  purchased  by 415 

debts,  to  pay,  see  Sale  of  Lands  for  Debts. 
executors,  etc..  liy,  see  Sale  of  Lands  by  E.veeittors.  ./</- 
ininistrators.  Guardians  and  Trustees. 
power   of   sale,   under,   see  Sale  of  Lands  hy 
Exeetitors,  .■Idministrators.  Guardian';  and 
Trustees. 
guardians,  by.  see  Guardians  of  Infants  ;m<l  liuardians  of 

Idiots,  Lunatics  and  Drunk-nrds 
trustees.  In-,   sec   Trustees. 

Taxes  on    i-''> 

corpus,  when  payable   from  ^^4  5.^^* 

income,   when   payable   from    'j   ««'■ 


1548  Probate  Law  and  Practice. 

LANDS  OF  DECEDENT— Co»h««rrf. 

Taxes    on — Continued. 

inheritance,  when  allowed    553 

payable  by  personal  representative,  when   426 

personal  representative,  when  payable  by   426 

trust,  on  lands  held  by  executor  in   426 

Title  to 

vests  in  heir  at  law  or  de\isee  on  deatl:  of  owner 249 

Trust,   declaration   of   made   by   decedent,   proceedings   to   en- 
force       429 

Trustee,    purchased    by    352 

may  sell  without  order  of  court   352 

Will,  validity  of  governed  by  law  where  lands  are  situate  ....  98 

LEGATEES  AND  DISTRIBUTEES— 

Assignees  of  take  subject  to  equities    339,  72>2> 

Creditor  of  estate,  legacy  to,  when  construed  to  be  in  pay- 
ment   of    debt    340 

Debts  due  from  to  estate   339 

payment  of    339 

set-ofif  against  legacy  or  distrilnitive  share 339.  JH 

barred  by  limitation   734 

Distributive  share 

barred  creditor  may   recover  claim   from 

payment    to   distributee,   before    581 

after  579 

executor,  etc.,  of  deceased  executor,  etc.,  cannot 

be  called  upon  to  pay  y^T) 

suits   for,   see   Suits  for  Legacies  and  Distribu- 
tive Shares. 

Estoppel  of  to  complain  of  misconduct  of  executor 401 

Legacy 

barred  creditor  may  recover  claim  from 

payment  to  legatee,  after   579 

before  581 

deceased  executor,  etc.,  personal  representative 

of  cannot  be  called  upon  to  pay  7212) 

executor    etc.,    of    deceased    executor,    etc.,    cannot    be 

called  upon  to  pay  yii 

life,  payment  of  to  legatee  for  726 

executor  may  require  security  before  making  ....     727 

payment  of   to   legatee   for  life    726 

executor  may  require  security  before  making,     yiy 
suit     for,     see    Suits    for    Legacies    and    Distributive 
Shares. 

Legatee  or  devisee  witnessing  will,  effect  of  136 

Liability  of  to  creditors  of  estate  714 


General  Index.  i-_^tj 

LEGATEES  AXD  DlSTRlBUTEES-Cor/n,,,.-./. 

Life,  payment  of  legacy  to  legatee  for  .  -_.(, 

executor  may  require  security  before  making  ^27 

Loss  or  depreciation  of  assets,  apportionment  of  between  life 

tenant  and  remainder  man   ^qi 

Payments     improperly     made    but     accruing    to    benefit     of. 

allowed    -,,, 

^A*i 

made  by  agreement  with  beneficiary    551 

Payment  of  legacy  to  legatee  for  life  ; J6 

executor  may  require  security  before  making  -27 

Receipt  for  legacy  or  distributive  share  715 

acknowledged,  must  I)e   -\t) 

evidential  value  of   ;i(3 

recorded,  when  may  be  1  ; 

Refunding  bonds  by,  see  Refunding  Bonds. 

Releases  by,  see  Releases. 

Suits  for  legacies  and  distributive  shares,  see  .V/m/j  jur  I.nia- 
cics  and  Distributive  Shares. 

V'ested  right  of  transmitted  to  personal  representative   .'4.> 

Vested,  title  to  after  death  of  legatee  or  distributee .^jg 

vests  in  personal  representative   _^3<) 

Witness  to  will,  when  legatee  or  devisee  is,  effect i j6 

LETTERS  OF  ADMINISTRATION— See  Administration.  .Id- 
ministrators,  and  Executors  and  Administrators. 

LETTERS  OF  ADMINISTRATION  c.  t.  a.-See  Administra- 
tion c.  t.  a..  Administrators  c.  t.  a.,  and  Executors  and 
•Administrators. 

LETTERS  OF  GUARDIANSHIP— See  Cuordion.shit^  ..nd 
Gitardia)is. 

LETTERS  OF  SUBSTITUTIONARY  ADMIXISTRATIOX- 
See  .Substitutionary  Administration  and  Executors  and 
Administrators. 

LETTERS  OF  SUBSTITUTIONARY  ADMINISTRATION 
c.   t.  a. — See   Substitutionary  Administration  c.  I.  o.  and 

Executors  and  ."Idministrators. 

LETTERS  TESTAMENTARY— 

Bond,   when   required   on   grant   of    >'',  iii 

Contest  of  grant  of   -lo 

no  method  of  raising   .Jio 

Debtor  of  estate,  right  of  to ao6 

Executor  not  qualifying  upon  probate  of  will,  issue  of  to  . . .  MJ 

Idiots   and   lunatics,    right  of   to    207 

Infants,   right   of  to    •?<*7 

Insolvents,  bankrupts,  etc.,  right  of  u>   -•07 


1550  Probate  Law  and  Practice. 

LETTERS  TESTAMENTARY— ro7;/i»Mrrf.    • 

Issue  of 

executor  not  qualifying  on  probate  of  will,  to 207 

persons  named  in  will  only  entitled  to   206 

Non-resident  executor,  to  206 

bond    required    from    206, 311 

power  of  attorney  required  from  206 

Power    of    attorney    required     from     non-resident     executor 

before   issue   of    208 

Recorded  by  Surrogate,  to  be  58 

Surrogate,  jurisdiction  to  issue    195 

LOST  WILLS— 

Accidentally  lost  or  destroyed,  where   244 

Destroyed,   when    244 

consent  of  proponent,  must  be  without   244 

Evidence  to  establish    244,  245 

declarations  of  testator  admissible  to  establish   ....  245 

Orphans'    Court,   jurisdiction   to   probate    243 

Probate  of 

Orphans'  Court,  jurisdiction  of   243 

practice   243 

citations  to  issue   244 

petition    243 

addressed  to  Surrogate,  to  be  243 

recitals    of    243 

spoliation,  proof  of  required    244.  245 

subscribing  witnesses  must  be  called 245 

LIMITATIONS,  STATUTE  OF— 

Claim  by  wife  for  money  advanced  deceased  husband   526 

statute  does  not  run  against  5^6 

Debts  barred  by 

estate    insolvent,    where    589 

payment  of  by  personal   representative    526 

debts  due  personal  representative  526 

representative  may  waive  bar  527 

personalty  insufficient  to  pay  debts   ....  52S 

promise  to  remove,  method  of  proving  . .  527 

Decree  barring  creditors  not  a  statute  of 566 

Suspension  of  by  death  of  debtor  528 

Waiver  of  bar  of 

executor,  etc.,  power  of  to    527 

estate   insolvent,    where    589 

one  of  several  executors,  by  414 

personalty  insufficient  to  pay  debts  528 

promise  to  waive,  method  of  proving    ....  527 

one  of  several  executors,  by 414 


General  Index. 


i;;i 


MARRIED  \VO^^AX— 

Administrator,  may  be   317 

bond  of,  husband   may  be  surety  on   317 

Bond,  cannot  be  surety  on    318 

Executrix    317 

bond  of,  husband  may  be  surety  on  317 

conveyance  of  lands  \^y   44y 

husband  need  not  join  in 440 

lands    purchased    at    foreclosure    sale. 

of    44') 

husband  need  not  be  joined  . . .  441) 

may  be   317 

Guardian,  may  be  317 

bond  of,  husband  may  be  surety  on   317 

Paraphernalia  of    344 

Separate  property  of,  not  assets  of  husband's  estate   344 

Surety  on  bond,  cannot  be 3!>< 

Testamentary  capacity  of   105 

Will  of 

capacity   to   make    1  f>.i 

curtesy  of  husband,  cannot  be  divested  by 105 

MASTERS  IN  CHANCERY— 

Advisory  masters,  see  Advisory  Masters. 

Masters  and  examiners  of  Orphans'  Court,  are  .Vj 

Reference  of  exceptions  to  account  to   36 

see  also  Accounting. 
Testimony  for  use  in  Orphans'  Court  may  l)e  taken  l)efiirr  47 

practice    '" 

NEXT  OF  KIN— 

Administration,    right   of   to,   see   Admiiiislnilion. 
Administration  c.  t.  a.,  right  of  to,  see  Adimuislrati,>ti  c.  t. 

Assets  of  estate,  cannot  maintain  action  to  recover -  i . 

Distribution   of   intestate's   estate   to,   see  Distribution. 

Estoppel  of  to  complain  of  misconduct  of  administrat.T  1  " 

Guardianship,  right  of  to,  see  Guardiansliit. 

Infants,  when,  right  of  guardian  to  administralii.n   JOfJ 

Interest  of  in  estate  of  intestate  •• 249. 337 

nature  of   ^^a  .W 

Personal  representatives,  are  not  ; ' " '. ' ' '     ""''^ 

Substitutionary  administration,  right  of  to,  sec  Substiliilioi, 
ar\  Administration. 

will    annexed   with,    rigiil   <>f   to.   see  Suhstt- 
tutionary  Adniwistniti'in  c.  I.  a. 

Unknown,   inquiry   fur    

affidavit  of   '  '' 

nature  of  

99 


1552  Probate  Law  and  Practice. 

NON-RESIDENTS— 

Administration  upon  estate  of,  see  Administration. 
Administrator 

power   of   attorney   required    from,    see   Power 
of  Attorney. 
Executor,  bond  required  from,  see  Bonds  of  Executors,  Ad- 
ministrators, Guardians  and  Trustees. 

power   of   attorney   required    from,   see   Power  of 
Attorney. 
Guardian 

power  of  attorney  required  from,  see  Power  of  At- 
torney. 

Service   of  process   upon    40, 41 

person  specially  appointed,  by 40 

proof  of  service    40 

power  of  attorney  when  given  by,  see  Pozi'cr  of  At- 
torney. 

publication,  by   41 

Trustees 

power    of    attorney    required    from,    see    Power    of 
Attorney. 

NOTICES— 

Prerogative  Court,  in,  see  Prerogative  Court. 

Service  of  40 

NUNCUPATIVE  WILLS— 

Committed  to  writing,  when  must  be    242 

Defined    237 

Essentials  of  a  valid 237 

Execution  of   239 

fixed   form  of  speech,  none  necessary    240 

manner  of   239 

request  of  testator  to  witnesses    240 

witnesses   required    '. 240 

Last  sickness,  what  constitutes 237 

Nature  and  essentials  237 

directions  for  written  will,  not  sufficient   237 

opportunity  to  execute  written  will  invalidates   239 

Probate  of   241 

notice  of    242 

time  for  proving  241,  242 

Revocation  of  written  will  by 242 

Statutory  provisions    239 

strictly    construed    241 

Validity    of    238 

sustained  only  in  case  of  necessity 239 


General  Index.  155^^ 

NUXCUPATI\'E  \\\LLS— Continued. 

Witnesses  to    - »«' 

number  required    .     -M" 

who  may  be   -4" 

ORDINARY— See  also  Prerogative  Court. 

Assistance  of  supreme  court  justice,  may  request  3 

Chancellor    is    3 

Judge  of  Prerogative  Court,  is  .^ 

Rules   of   practice,   may   make    .? 

as  binding  as  statute,  are  -(>i 

Vice  ordinaries,  see  Vice  Ordinaries. 

ORPHANS'  COURT—  • 

Act  creating  4- 

liberally  construed,  to  be   +-' 

remedial,    is    +-' 

Adj  ournments  of   30 

Administration,  see  also  Administration. 

considerations  controlling  court   -06 

request  of  a  majority  of  next 

of  kin,  not  bound  by  -'66 

jurisdiction  to  grant   45-  -3' 

probate  of  disputed  will  naming 

no  executor,  on  45 

removal  and  discharge  of  execu- 
tor, etc.,  in  case  of   6io 

next  of  kin 

request  of  majoritv  of,  court  not  boiuid 

by    '. -'66 

when  will  accept  -'"5 

not  accept  -"" 

pendente    lite,    see    Administration    Pendente 

Lite. 
removal    or    discharge    of    executor,   etc..    in 

^i                                                     ....     '"" 
case  01    

Adoption,  see  Adoption  of  Minors. 
Affidavits  for  use  in 

deputy   Surrogate   may   take    ^ 

record  of  admissible  in  evidence  6l 

validity    of    

Surrogate  may  take    

Affidavits  to  proceedings  in.  pr-M-mr.  imt  m  take  54 

Amendments 

power  of  court   as   h-    

appeal    on     ^" 

Certiorari,  review  of  proceedings  of  by    . 


1554  Probate  Law  and  Practice. 

ORPHANS'  COURT— Coiifinucd. 
Clerk  of 

Surrogate   is    36 

duties  as    62 

Costs  and  counsel  fees  in,  see  Costs  and  Counsel  Fees. 
Court  of  Chancery 

jurisdiction  of  over  decrees  of,  see  Court  of  Chancery. 

Decrees  of   48 

authority  of  court  over   43 

collateral  attack,  not  subject  to  48 

correction  of  by  court  71 

lands,   when   bind    50 

abstract  of  to  be  filed  with  county  clerk 50 

♦ecitals    of     50 

revocation  of  by  court   71 

validity    of    48 

collateral  attack,  not  subject  to    48 

may  be  set  aside  in  equity  for  fraud  49 

not  on  probate  of  will   49 

Decrees  of  Surrogate 

cannot  set  aside    58,  61 0 

control   of    over    610 

Depositions,    in     60 

Deputy  Surrogate  may  take 60 

record  of  admissible  in  evidence 61 

validity  of   61 

Surrogate  may  take    60 

Discharge  of  executors,  etc.,  see  Discharge  of  Executors.  Ad- 
ministrators, Guardians  and  Trustees. 
Drunkards,      jurisdiction      to      appoint      guardian      for,      see 
Guardianship  of  Idiots.  Lunatics  and  Drunk- 
ards. 
sale  of  lands  of,  see  Sale  of  Lands  by   Execu- 
tors, Administrators,   Guardians   and   Trus- 
tees. 

General  jurisdiction,  a  court  of    42 

Guardians,  directions  to  as  to  expenditures   from  ward's  es- 
tate, see  Guardians. 
Guardianship 

jurisdiction  to  grant,  see  Guardiatiship. 
Guardianship  of  minors 

concurrent  jurisdiction  with  Surrogate  and  Ord- 
inary          741 

History  of    3-2 

Idiots  and  lunatics,  jurisdiction  to  appoint  guardians  for,  see 
Guardianship    of  Idiots,   Lunatics  and  Drunkards. 
See  also  Guardians  of  Idiots.  Lunatics  and  Drunk- 
ards. 
sale  of  land  of,  jurisdiction   787 


GKNEKAI,    InDKX.  i;;; 

ORPHANS'  COVRT—Contiiiurd. 

Incidental  jurisdiction  of   ,(, 

administrators,  to  appoint  <in   probate  of   dispute*! 

will   when   necessary    .5 

construction  of  wills,  over    722 

nature    of    vj 

Judge  from  other  county  may  hold,  when  3-'.  34 

judge  may  sit  separately ^3 

request,  how  made  33 

validity  of  acts  of  substitute  judyc-  ^^^ 

Judges  of   32 

additional,  authorized  in  certain  counties   34 

courts   which   may   hold    34 

laws  applicable    34 

powers    of    34 

sit  together  or  separately   34 

death  of.  how  judgments  or  orders  signed  in  case  of..  35 
expiration  of  term  of.  how  judgments  or  orders  signed 

in  case  of    35 

practice  of  law  by  36 

Jurisdiction  of 

accounts  of  executors,  etc.,  over,  see  .■iccoiiutiiKj. 
administration 

controversies  as  to  right  of.  over, 
see    Contested   .idmitiistration. 
grant  of.  over,  see  .Idiiiinistratiou. 

Surrogate   administrator,    when    . .  61 
adoption  proceedings,  see  Adoption  of  Minors. 
certify  questions  of  fact  to  Circuit  Court  for  tri;il. 
to,  see  Contested  Probate. 

chancery  powers,  cannot  exercise   4.i 

co-executors,  etc.,  over  actions  between  4-'i 

decrees  of  Surrogate,  to  review a> 

equitable    powers     4.^ 

existence  of  wills,  over  controversies  concerning  4.  J45 

general   jurisdiction  of    41 

a  court  of    4- 

guardianship.   over  grant   of.    see   Ciiuirdumship. 

incidental    4<^ 

administrator   c.   t.   a.,    to   a|)point    on 

lirobate  of  will  when  needed    ....  45 

construction   of   wills,  tiver    723 

nature    of    A^ 

inventories,  over  fairness  of   .....'  4' 

limited  but  not  special,  is   7" 

limited   Iiy   statute    AS 

lost  wills,  over  probate  of    -4.? 


1556  Probate  Law  and  Practice. 

ORPHANS"  COURT— Continued. 

Jurisdiction  of — Coutiiiucd. 

nature  of    43 

probate  of  wills,  over    45 

solemn   form,  to  prove  in,  will   probated 

by    Surrogate    191 

Surrogate  executor,  when    61 

Surrogate,  to  review  decree  of   45 

trusts,  cannot   enforce    44 

trustees,    over    44 

Lost  wills,  jurisdiction  to  probate   243 

Notices    in    40 

service   of    40 

Officers   of   court    36 

advisory   masters,   how   appointed    27 

clerk,   Surrogate  is    t,6 

masters  in  chancery,  as   2)(^ 

Open,  when 38 

Probate  of  wills 

jurisdiction  over   45 

to  prove  in  solemn  form  after  probate  by  Surrogate  191 
Process  of,  see  Process. 

Proofs  for  use  in   60 

Deputy  Surrogate  may  take 60 

record  of  admissible  in  evidence    61 

validity   of    61 

Surrogate   may   take    6a 

Questions  of  fact,  may  certify  to  Circuit  Court  for  trial,  see 

Contested  Probate. 
Removal  of  executors,  etc.,  see  Removal  of  Executors.  Ad- 
ministrators, Guardians  and  Trustees. 

Review  of  proceedings  of,  by  certiorari  81 

Rules  of  practice.  Ordinary  may  make  3 

valid  as  statute,  are   261 

Rules  to  show  cause    39 

issued  into  any  county,  may  be   40 

service    40 

when  may  be  used    39 

Sale  of  lands 

administrator  c.  t.  a.,  by,  see  Sale  of  Lands. 

debts,  to  pay,  see  Sale  of  Lands  for  Debts. 

guardians    of    idiots,    lunatics    and    drunkards,    by,    see 

Guardians  of  Idiots,  Lunatics  and  Drunkards. 
guardians  of  minors,  by,  see  Guardians  of  Minors. 

Statute  creating,   remedial    42 

liberally  construed,  to  be  42 

Surrogate,  jurisdiction  over  decrees  of  6fo 


Gexekal  Indkx. 


i;;- 


4.< 


ORPHANS'  COl'RT— Continued. 

Terms  of    g 

business  continued  if  term  not  l)eUl 38 

change  of.  method  of  providing  for  " ^8 

Testimony,   in    ,, 

•••••».-  4^ 

before  whom  mav  he  taken  . .  ,- 

•♦/ 

practice    ^~ 

how  taken   ^~ 

master  in  chancery,  may  he  taken  before  47 

Surrogate,  may  be  taken  before  47 

practice    ^- 

Wills,  jurisdiction  over 

construction   of    

existence   of    4.  J4  < 

lost     

probate  of   4; 

solemn   form,   in    i.>i 

Surrogate   executor,   when    f)r 

Witnesses,  may  require  attendance  of  4.> 

PAYMENT  OF  MONEY  INTO  COURT— 

Application  for  fund  by  distributee  713 

,                                petition    by    71  j 

recitals   of    71JI 

Disposition  of  moneys  by  clerk  713 

deposited  in  bank,  to  be  71^1 

how  withdrawn   from  I)ank   7I.< 

to  credit  of  whose  account   713 

Inquiry  required  for  persons  entitled   71 J 

nature   of    71,; 

Receipt  upon   71-' 

discharge,  operates  as   71.' 

recorded,  may  be  71- 

Surrogate  to  give    7  •  - 

Unclaimed  distributive  share  or  legacy  of   7I- 

affidavit  to  be  filed  7' J 

recitals    of    7'3 

wiien   permitted    7'- 

PERSONAL  PROPERTY— See  als.-  Assets. 

Action  to  recover,  next  of  kin  incuniiK-tcnt  lo  maintain  ... 

Assets  for  payment  of  debts  545 

primary   fund   for • 545 

Disposal  of  by  personal  representative M7 

power   of    .^'7 

property  specifically  b(<ineaibi  i.<7 

Distribution  of.  see  Distrihttticn 


155^  Probate  Law  and  Practice. 

PERSONAL  PROPERTY— Continued. 

Estate  per  autre  vie   354 

personal  property,   is    354 

Next  of  kin  incompetent  to  maintain  action  to  recover 249 

Payment  of  debts,  primary  fund  for   545 

Sale  of 

co-executors  and  administrators,  by    412 

proceeds  of  sale,  right  to  possession  of    . .  412 

executors  and  administrators,  by   337 

power   of    337 

property  specifically  bequeathed   337 

Vests  in  personal  representative    249,  250 

Will  of,  validity  governed  by  law  of  testator's  domicile 97 

POWER  OF  ATTORNEY— 

failure  to  file,  effect  of   209 

Non-resident  executors,   etc.,    from    209 

Required,   when    209 

Revocation  of,  effect  of   209 

Service  of  process,  method  of   209 

duty  of  Surrogate   209 

POWER  OF  SALE— See  Sale  of  Lands  by  Executors,  Adminis- 
trators, Guardians  and  Trustees.  , 

PREROGATIVE  COURT— 

Accounting  23 

exceptions  to  be  in  writing  and  specific   24 

filed  in,  when  to  be  19 

letters  granted  or  will  probated  before  Ord- 
inary,   when    19 

notice  of  settlement  23 

mailed  to  persons  in  interest,  to  be   23 

practice  when  person  in  interest  is 

a    minor    23 

statement  whether  commissions  and 
counsel  fees  will  be  applied  for, 

to    contain    23 

petition    on    24 

recitals    of    24 

verified,  to  be   24 

resettlement  of,  notice  of  application  25 

statement  of  assets,  annexed  to,  to  be  25 

changes  in  investments  annexed  to,  to  be  25 
vouchers 

lodged  with  Register,  to  be  23 

open  to  inspection,  to  be  23 

when  to  be  filed  in  19 

letters  granted  or  will  probated  before  Ordi- 
nary, when   19 


General  1mm:n.  i;-(, 


PRER(X^,ATIVE  COVRT-Co„ti,uu'd. 
Administration 

application   for    

-n     o.-.,!      „.... 


M 

form  and  contents  


affidavit  of  value  of  estate  to 

be  annexed    k, 

in  writing,  to  he   14 

recorded,  to  be   14 

verified,  to  be    14 

notice  of  14 

service  on  non-residents   14 

residents 14 

when    required    14 

recorded,  to  be  14 

renunciation  of  next  of  kin  14 

recorded,  to  be  14 

when    required    14 

vice  ordinary,  to ;;; 

jurisdiction  to  grant   13.  -'51 

death   presumed,    when    jjy 

general,    not   special    13 

particular  purpose,    for   jH^ 

pendente    lite    284 

temporary  or  special    _'8j.  J83 

limited  administration,   of    13 

next  of  kin,  absent,  inquiry  required   for   jj 

proof  of  inquiry  to  be  filed   J3 

next  of  kin  neglect  to  apply,  when   15 

notice  of  application    15 

service    on    non-residents    15 

residents    15 

non-residents,  residents  preferred  over  16 

notice  of  application    14 

absent  next  of  kin,  inijuiry  required  ftir  -'J 

proof  of  inquiry  to  he  filed   ....  -'3 

service  of,  on  non-residents   14 

residents    14 

when  required   14 

particular  purpose,  for,  jurisdiction  l«)  urant   .  .  -'S3 

pendente  lite,  jurisdiction  to  grant   "^j 

proof  that  no  dispute  has  arisen  rcquir«.l 

renunciation  of  next  of  kin   .4 

recorded,   to  be    14 

required,  wlien   14 

residents  preferred  over  non-residents  i<» 

subsequent  proceedings  to  be  before  Siirmgatr  n; 
temporary  or  special,  jurisdiction  to  grant   ...i8.i. -'Hj 


1560  Probate  Law  and  Practice. 

PREROGATIVE  COURT— Contimied. 

Administration — Continued. 

transcript  of  proceedings  to  he  filed  with  Sur- 
rogate       19 

certified  copies  of  admissible  in  evi- 
dence      20 

recorded,  to  be   I9 

fees  for  recording   -IQ 

value  of  estate,  affidavit  of  required  16 

Administration  c.  t.  a. 

application   for    M 

notice    of    14 

service   of    on    non-residents  14 

residents    ...  14 

when    required    14 

renunciation  of  next  of  kin  14 

recorded,  to  be   14 

when  required  14 

form  and  contents    I4 

affidavit  of  value  to  be  annexed  to 16 

in  writing,  to  be   I4 

verified,  to  be   I4 

recorded,    to   be    I4 

non-residents,  residents  preferred  over 16 

notice  of  application   I4 

service  of.  on  non-residents   14 

residents    I4 

when  required    I4 

renunciation  of  next  of  kin   14 

recorded,  to  be    14 

when  required    I4 

residents  preferred  over  non-residents    16 

value  of  estate,  affidavit  of  required  16 

Affidavits  for  use  in 

proctor  or  counsel  not  to  take   3° 

Amendments,    appeal    on    53 

Appeals  from 

practice   on    3i 

time  for  taking 3i 

Appeal  to,  see  Appeals. 

Assistance  of  supreme  court  justice.  Ordinary  may  require   . .  3 

Commissions,  see  also  Commissions. 

adjustment  of  between  co-executors  etc 25 

notice  of  application  for   25 

administrator   of,    where    after   discovered    will 

is  probated    16 


General  Index.  15C1 

PREROGATI\"E  COVRT—Coutvmcd. 
Commissions — Coutiniwii. 

executors  and  administrators 

later  will  discovered,  where   16 

where   estate   exceeds   $50,000,   app!: 

cation  for    

guardians,  where  estate  exceeds  $,20,000,  appli- 
cation  for    25 

notice  to  persons  in  interest  of  application   for      2^ 

service  of  notice    23 

minors,  on   23 

trustees,  where  estate  exceeds  $50,000,  applica- 
tion  for    -'^ 

Contempt  proceedings 

failure  to  obey  decree  or  citaiinn   

Costs  in 

collection   of    4 

payment   of    4 

Decrees  of 

enforcement  of    4 

Depositions  for  use  in.  who  may  take ^.t 

Discharge  of  executors,  etc..  see  also  Discliariic  of  Executors. 
Administrators,  Guardians  and  Trustees. 

notice  of  application  for -7 

service  of  notice  -7 

Distribution  of  intestate's  estate 

decree  for,  proof  of  persons  entitled  to  26 

affidavit,  may  be  by 26 

who  may  make  -'t> 

Distribution  of  testator's  estate 

decree  for  1 -^ 

application    for    26 

notice  of   26 

service  nf  notice  26 

recitals  of  26 

Division  of  real  estate 

jurisdiction   of    •       ^ 

practice  on  application  for   

Dower 

inchoate    right    of    where    dowress    under    disabilitv 

sale    of    

l)ractice  on  application 

table  showing  value  of  

Executors,  etc. 

discharge   of.    see    also   Disiluiryr   «/   lixnulors. 
Administrators.   Guardians  and   TrustdS. 

notice  of  application    -7 

service  of  notice   27 


i)-M 


27 

28 

Q26 


1562  Probate  Law  and  Practice. 

PREROGATIVE  COVRT—Coutwucd. 

Guardianship,  see  also  Guardianship 

application  for   20 

affidavit  to  be  annexed  to 20 

form  and  contents   20 

infant  over  fourteen,  by 

form  and  execution 21 

guardian  appointed  while  un- 
der fourteen  when 21 

notice  of   .  21 

practice   on  21 

recorded,  to  be 21 

dispute   as   to,   proof   that   none   has   arisen   re- 
quired     • 22 

infant  over  fourteen,  of,  for  whom  guardian  was 

appointed  while  under  fourteen 21 

application,  form  and  execution   21 

notice  of    21 

practice  on   21 

jurisdiction  concurrent  with  Surrogate  and  Or- 
phans'  Court    741 

letters  of,  register  to  sign   22 

nearest  of  kin,  absent,  inquiry  required  for  ....  22 

proof  of  inquiry  to  be  filed  23 

notice  of  application   20 

absent  next  of  kin,  inquiry  required  for  . .   22 

proof  of  inquiry  to  be  filed   23 

service  on  non-residents   21 

proof  that  no  dispute  has  arisen  required 22 

renunciation 

,                                    recorded,  to  be   21 

when    required    20 

subsequent  proceedings  to  be  before  surrogate  19 
transcript  of  proceedings  to  be  filed  with  sur- 
rogate     19 

certified  copies  of  admissible  in  evi- 
dence      20 

recorded,  to  be   19 

fees  for  recording  19 

Guardians  ad  litem   30 

appointment   of    30 

appeal,  on   81 

on    application    on    behalf    of    infant 

or  incompetent    30 

no  application  made  on  behalf  of  in- 
fant or  incompetent,  where   ....  30 


General  Index.  1563 

PREROGATIVE  COURT— Continued. 

History  of  rise  of  jurisdiction  of   7 

Inventories,  when  to  be  filed  with IQ 

Investments  by  executors,  etc. 
failure  to  make 

executors,  etc..  to  report  26 

Jurisdiction  of   7 

appeal,  on   89 

original  jurisdiction,  when  has   89 

when  has  not  89 

history  of  rise  of  7 

probate  of  wills,  over  12 

appeal  from  decree  founded  upon  verdict 

of  jury    230 

death  presumed,  when   I05 

solemn  form,  in   IQI 

statutory    '  - 

will,  may  order  produced  for  probate 190 

Letters  of  administration.  Register  to  sign  910 

guardianship.  Register  to  sign   912 

substituted  administration ^^ 

form   of    l^ 

to  be  changed  to  accord  to  facts 19 

Register  to  sign IQ 

testamentary.  Register  to  sign   9^0 

Notices 

motions  of.  form  of   -9 

service  of   "^ 

Officers  of    ^ 

proctors,  solicitors  in  chancery  are  6 

register,  secretary  of  state  is 6 

Ordinary,  see  Ordinary. 

judge  of,  is   -■'•^ 

Petitions  to  be  addressed  to  Ordinary   7 

Pleadings    in    ' 

character  of  paper  and  typewriting 7 

petitions  to  be  addressed  to  Ordinary   7 

Probate  of  will,  see  also  Probate  of  Wills. 

administration  granted,  after   '^ 

application  for  probate   '-^ 

form  and  contents '  * 

proof  that  no  caveat  filed  reciuired  13 

recorded,   tn  be    '-^ 

verified,  to  lie   '-^ 

writing  to  lie  in '-♦ 

application    for  to   vice-i.rdinary    S 

jurisdictifin    


1564  Probate  Law  and  Practice. 

PREROGATIVE  COVRT— Continued. 

Probate  of  will — Continued. 

non-resident  of    12 

notice  of  application,  when  required  13 

practice    13 

persons    noticed    may    cross-examine    testa- 
mentary witnesses   14 

presumption  of  death,  on  195 

production  of  will,  jurisdiction  to  order   190 

proof  required  that  no  caveat  filed  13 

solemn   form,  in    191 

subsequent  proceedings  to  be  before  surrogate   ....  19 

transcript  of  proceedings  to  be  filed  with  surrogate  . .  19 

certified   copies  of,   admissible  in   evidence  20 

recorded,  to  be   19 

fees  for  recording 19 

Process  in,  see  Process. 

Proctors  of,  solicitors  in  chancery  are  6 

Production  of  will,  jurisdiction  to  order  190 

References  to  vice-ordinaries    4 

causes  on  final  hearing,  of  *. .  5 

general    reference 5 

matters  which  may  be  referred ' 4 

Register  of  6 

commissions   of  on   deposits    7 

duties  of   6 

attend  sitting  of'  court,  to  7 

record  decrees  and  proceedings,  to   7 

sign  letters  of  administration,  to   ,  18 

Rules  of  practice,  Ordinary  may  make 3 

valid  as  statute,  are 261 

Substitutionary   administration    14 

application   for    14 

form  and  contents    14 

in  writing,  to  be   14 

verified,  to  be  14 

notice   of    14 

service    of,    on    non-resi- 
dents 14 
residents  14 

when   required    14 

recorded,  to  be  14 

renunciation  of  next  of  kin    ....  14 

recorded,  to  be  ... .  14 

when  required  14 


General  Index.  1565 

PREROGATI\E  COVRT— Continued. 

Substitutionary  administration — Contmuai. 

letters  of  substitutionary  administration   ....  iS 

form  of   18 

to  be  changed  to  accord  to  facts  19 

register  to  sign . .  19 

next  of  kin 

absent  or  unknown,  proof  of  inquiry  for  22 

neglect  to  apply  for.  when  17 

notice  of  application  17 

service  of  on  nun-residents  17 

residents    17 

non-residents,  residents  preferred  over   16 

notice   of   application    14 

next  of  kin,  absent  or  unknown,  proof 

^          of  inquiry  for 22 

service  of,  on  non-residents  14 

residents    14 

renunciation  of  next  of  kin 14 

recorded,  to  be   14 

when  required    14 

residents  preferred  over  non-residents  ib 

value  of  estate,  affidavit  of  required  16 

Substitutionary  administration  c.  t.  a U 

application  for   '4 

form  and  contents   M 

in  writing,  to  be  14 

verified,  to  be   14 

notice  of    '4 

next   of   kin   absent   or   un- 
known, where,  proof  of 

inquiry  for   22 

service  on  non-residents   .  .  14 

residents    14 

when    required     '4 

recorded,  to  be    '4 

renunciation  of  next  of  kin   >4 

recorded  to  be '4 

when  required,   '4 

letters   of    '^ 

form  of   '° 

to  be  changed  to  accord  to  facts  ig 

register  to  sign    '9 

next  of  kin  neglect  to  apply  for.  when 

absent  or  unknown,  i)roof  of  inquiry  for  22 

neglect  to  apply  U<y,  wlierc  '7 


1566  Probati;  Law  and  Practice. 

PREROGATIVE  COURT— Continued. 

Substitutionary  administration   c.   t.   a. — Continued. 

next  of  kin  neglect  to  apply  for.  when — Con- 
tinned. 

notice  of  application 17 

service  on  non-residents 17 

residents 17 

non-residents,  residents  preferred  over   16 

notice  of  application   14 

next  of  kin  absent  or  unknown,  where, 

proof  of  inquiry  for   22 

service  of,  on  non-residents   14 

residents    14 

when   required    14 

renunciations 14 

recorded,  to  be  14 

when    required     14 

residents  preferred  over  non-residents 16 

value  of  estate,  affidavit  of  required 16 

Terms  of,  abolished   6 

Transcript  of  will  as  evidence  4 

Vice-ordinaries,  see  Vice-ordinaries. 

Wills,  production  of,  jurisdiction  to  order  190 

PROBATE  OF  WILLS— See  also  Contested  Probate. 

Administration  granted,  after   200 

citations  to  issue   200 

Appeal 

-    Orphans'   Court,   from   see  Al^peals. 

verdict  of  jury,  founded  upon,  see  Appeals. 
Surrogate,  from,  see  Appeals. 

Application  for  201 

form  and  contents    201 

verified,  must  be 20] 

necessity    for    20] 

Surrogate,  to    20] 

when  may  be  made 201 

method  of  computing  time   201 

withdrawal   of    201 

Attestation   clause    140 

evidential  value  of   140,  141 

recitals  of  presumed  true  14] 

where  defective   14c 

presumptions   arising   from    141 

rebutted,  may  I)e   14^ 

recitals  presumed  to  be  true 141 

purpose    of    14c 

what  is  meant  by 140 


General  Index.  1567 

PROBATE  OF  WILLS— Continued. 

Bond   of   executor,   when   required,   see  Bonds  of  Executors, 
Administrators.  Guardiiins  and  Trustees. 

Caveat  against  ig; 

citations  to  be  issued  hy  surrogate 196 

issued,  to  whom  should  be  222 

jurisdiction  of  surrogate,  effect  on   105-197 

sheriff  to   serve    40 

to  whom  should  lie  issued  222 

effect  of  filing  igj 

suspends  jurisdiction  of  court   195-197 

jurisdiction  of  surrogate  suspended  l)y  I95-I97 

nature   of    ig; 

suspends  jurisdiction  of  court   105-197 

who  may  file   igS 

attorney  in   fact    ig8 

executor  of  will    198 

infants    198 

withdrawal  f)f    198 

after  issue  of  citations,  effect  of   igg 

when  may  be  withdrawn 198 

Common  and  solemn  form,  in.  see  Solonn  and  Cununon  l',>nn 
this  title  infra. 

Conclusive  after  seven  years  J2ij 

Confidential  relations,  see  Undue  Influence. 
Contested  probate,  see  Contested  Probate. 
Costs  and  counsel  fees,  see  Costs  and  Counsel  Fees. 

Death  presumed,  when  195 

Decree  for 

cannot  be  set  aside  by  chancery  for  fraud  49 

Decree  of  surrogate,  see  Decrees. 

adjudication    that    no    doulits    arise    on    face    of    will. 

amounts   to    200 

Depositions 

subscribing   witnesses,    of.    see   .S'ul>scrihin</    Wit- 
nesses,  this   title   infra. 
Discovery  of  will  where  person  in  possession  refuse'^  to  iiri>- 

duce  for  probate   189 

I)ractice  to  obtain    189 

procedure,  outline  oi  i^l-' 

Disposition  of  cause,  considerations  controlling  court  upon  .  .  .  14') 

Dispute  as  to  existence  of  will 105 

citations  to  be  issued  Ijy  surrogate Ii)6 

effect  on  jurisdiction  of  surrogate  106 

jurisdiction  of  '^iirroualc   lo"; 


100 


1568  Probate  Law  and  Practice;. 

PROBATE  OF  WILLS— Continued. 

Doubts  on  face  of  will  199 

adjudication  of  existence  of  doubts  necessary 200 

citations  to  be  issued  by  surrogate  196,  199 

effect  on  jurisdiction  of  surrogate 196,  199 

decree  admitting  will  to  probate  adjudication  tbat  none 

exist  200 

jurisdiction  of  surrogate 195,  199 

what  constitute    199 

Evidence  upon,  see  Evidence. 
Execution  of  will,  see  E-vccution  of  Wills. 
evidence,  see  Evidence. 

Executor,  neglect  to  probate  will  for  40  days,  efifect  of  189 

Expert  witnesses,  when  should  be  chosen  by  court,  see  Con- 
tested Probate. 
Foreign  wills,  see  Foreign  Wills. 

Jurisdiction  of  surrogate   I9S 

caveat  against  probate  of  will  filed  195 

dispute  as  to  existence  of  will,  when  195 

doubts  on  face  of  will,  when  195 

Later  will  discovered  after  probate  200 

practice 200 

procedure,  outline  of   811 

Letters  testamentary 

bond  required  before  issue  of,  when,  see  Bonds  of 
E.vccutors,  Administrators,  Guardians  and  Trus- 
tees. 

contest  of  grant  of    210 

no  method  of  raising   zio 

idiots  and  lunatics,  right  of  to  207 

infants,  right  of  to  207 

insolvents,  bankrupts,  etc.,  right  of  to  207 

non-resident    executors    required    to    give    power    of 

attorney  before  issue  of  208 

qualification  of  executor  necessary  before  issue  of  . . .     208 
Lost  wills,  see  Lost  Wills. 

Nature  of  proceeding  

not  a  civil  action   

proceeding  in   rem    

Necessity  for  

Neglect  to  present  for  probate  for  forty  days,  efifect  of 

Non-residents,  of 

foreign   probate,  upon  transcript  of   record  of     211 

practice   on    211 

original  will,  cannot  be  granted  56,  196 

Nuncupative  wills,  see  Nnncnpative  Wills. 


General  Index.  1569 

PROBATE  OF  WILLS— Continued. 

Orphans'  Court,  jurisdiction  of 

contested,  when,  see  Contested  Probate. 

doubts  on  face  of  will,  see  Doubt.';  ou  Fiur  ,>(  Will. 

lost  will,  of,  see  Lost  Wills. 

uncontested,   when    45 

Power  of  attorney  from  non-resident  executor  208 

failure  to  file,  effect  of  209 

required,   when    208 

revocation  of.  effect  of  209 

service  of  process,  method  of 209 

Prerogative  Court,  before,  see  Prerogatize  Court. 

Presentation  for  probate  i8g 

duty  of  executor  189 

effect  of  neglect  for  forty  days 189 

proceedings  to  compel   i8g 

Presumption  of  death,  on   195 

Prerogative  Court  may  grant    195 

Probate  contested,  see  Contested  Probate. 

Procedure,  outline  of  8og 

Qualification  of  executor  204 

corporation  executor,  of  205 

must  be  taken  before  surrogate  205 

origin  of  requirement   204 

Record  of 219 

copy  may  be  recorded  in  any  county   220 

admissibility  of  record  in  evidence 220 

Surrogate  to  make   219 

transcript  of  received  in  evidence  219 

validity  and  effect  of   221 

what  record  must  contain  221 

Solemn  and  common   form,  in    190 

distinction   between   iQo 

jurisdiction    of    Orphans'   Court   to   prove   in   solemn 

form  after  probate  by  Surrogate  191 

jurisdiction  of  Prerogative  Court  to  reprove  in  solemn 

form  will  probated  before  Ordinary  192 

Subscribing  witnesses 

dead,  practice  when  202, 

depositions  of 

foreign  will,  of  216 

Orphans'  Court  may  take  ....  216 
original     will,     pro- 
duction   of    un- 
necessary    2K1 

Surrogate  may  take  216 


15/0  Probate  Law  and  Practice. 

PROBATE  OF  WILLS— Continued. 
Subscribing  witnesses — Continued. 

depositions  of — Continued. 

number  of  witnesses  required 202 

attestation  clause  perfect,  where  202 
imperfect, 

where.   .  .  202 
lands    in    other    .states,    where 

there  are   202 

non-resident  witnesses,  of  203 

commission,    l)y    203 

officer  appointed  by  Sur- 
rogate,  by    203 

Surrogate  to   take    202 

testimony   necessary    202 

Surrogate I95 

executor,  when   61 

jurisdiction  of   195 

appeal  suspends   79 

attacking,  method  of   210 

appeal  l)y,  see  .-if peals. 
direct    attack    Ijefore    Surro- 
gate, by    68 

Orphans'  Court  without  jur- 
isdiction except  by  appeal  610 

caveat  against  will,  when  hied  195 

dispute  as  to  existence  of  will,  when   .  .  195 

doubts  on  face  of  will,  when 195 

non-residents,  of,  jurisdiction   196 

validity   of    210 

Testamentary  capacity,  see  Testamentary  Capaeity. 

Time  for  making  application   201 

method  of  computing  201 

neglect  to  make  application  189 

for  forty  days,  effect  of   189 

Undue  influence,  see  Undjie  Inflnenee. 

Vice-Ordinary,   before    5 

Witnesses,   subscribing,    see   .Subserihiiuj    Witnesses,   this   title 

supra. 
Will,  discover}'  of  where  person  in  possession  refuses  to  pro- 
duce for  probate   189 

practice    189,  812 

PROCESS— 

Citations    39 

appeal  from  Surrogate,  on  76 

appellant  to  cause  issue  and  service 76 


General  Index.  i 


^/ 


PROCESS— Continued. 
Citations — Continued. 

appeal  from  Surrogate,  on — Continued. 

dismissal   of    appeal    for    failure   to   issue   or 

serve   77 

time  limited  for  issue  of  76 

caveat  against  probate  of  will,  on    222 

service  of   223 

by  whom  served    40 

non-resident  on    40.  41 

person  specially  appoint- 
ed, by  40 

publication,  by    41 

issue  to  whom   222 

issue  into  any  county,  may   40 

service   of    30 

1iy  whom  served   40 

Contempt  proceedings,  disobedience  of  punishable  by  49 

Disobedience  of.  punished  as  contempt  49 

Issued  into  any  county,  may  be    40 

Non-residents,  against    40 

service  of 40 

non-resident  executor,  etc.,  who  lias 
given  power  of  at- 
torney   209 

method  of  service   20Q 

Surrogate,   duty  of    .....  209 

person  specially  appointed,  by  40 

publication,  1)y   41 

Notices  in  Orphans'  Court  40 

service    of    40 

Prerogative  Court,  in 

enforcement  of  obedience  to   4 

notices 

motions,  of  20 

form  of  29 

service  of    29 

service  of   29 

Return  of,  court  always  open  for 38 

Rule  to  show  cause  30 

service  of   30.  40 

proof    of    39 

Service  of   30.  40. 878 

by  whom  served   40 


1572  Probate  Law  and  Practice. 

FROCESS— Continued. 

Service  of — Continued. 

non-residents,  upon   40,  878 

executor,  etc.,  who  has  given  power  of 

attorney    209 

duty  of  Surrogate 209 

method  of  service    209 

person  special!}'  appointed,  by   40 

proof  of  service   40 

pubHcation,   by    41 

Subpoena  to  appear 

Orphans'  Court  may  issue  39 

Surrogate  may  issue   57 

PROCTORS— 
Affidavits 

Orphans'  Court,  for  use  before,  not  to  take 54 

Prerogative  Court,  for  use  before,  not  to  take  ....  30 

Surrogate,  for  use  before,  not  to  take 67 

Appeal  from  Orphans'  Court,  on  84 

Prerogative  Court,  in.  Solicitors  in  chancery  are 6 

REFUNDING  BOND— 

Administrator  to  take    580 

effect  of  not  filing   579 

Amount  of 73i 

Condition   of    ■  • 7^4 

debts  included  within 715 

Creditors  of  estate,  suits  by  upon^  see  Creditors  of  Estate. 

Debts  included  within  condition  of   715 

Distributees,  required   from    714 

Executor  to  take 580 

etifect  of  not  tiling  579 

Failure  to  file,  effect  of,  presumptive  evidence  that  legacy  or 

distributive  share  unpaid   579 

Filed,  when  to  be  73i 

Infants,  by   714 

guardians  may  execute   7I4 

Liability  of  obligor  upon  715 

Nature  and  effect  of  714 

Penalty   of    714 

amount  of   •  • 714 

Suits  upon    " 715 

creditors,  by.  see  Creditors  of  Estate. 

pleading   715 

Sureties  not  required  upon  7i4 

Tender  of,  when  necessary  731 


General  Index.  1573 

RELEASES— 

Administrator,  to,  taking  of  renders  accounting  unnecessary, 

when  619 

acknowledged,  to  be  619 

recorded,  when  may  he   619 

Administrator    c.    t.    a.,    to 

acknowledged,  to  he  619 

filing   of    renders   account   unnecessary,    when  619 

recorded,  when  may  be  619 

Executor,  to,  filing  of  renders  account  unnecessary,  when   .  .  619 

acknowledged,  to  be  619 

recorded,  to  be   619 

Guardian,  to,   from  ward,  filing  of   renders  account  unneces- 
sary,   when    619 

acknowledged,  to  be    619 

recorded,  to  be   619 

Legatee  or  distributee,  by 

defense  to  suit  for  legacy  or  distributive  share,  is 734 

set  aside  by  Chancery,  when  will  be  735 

Trustee,  to.  from  cestui,  filing  renders  account  unnecessary, 

when    619 

acknowledged,  to  be   619 

recorded,  to  be   ol9 

REMOVAL  OF  EXECUTORS.  ADMINISTRATORS.  GUARD- 
IANS AND  TRUSTEES— 

Account,  for  failure  to  file  604 

provisions  of  statute  directory   616 

Administrator  pendente  lite,  of 285 

Chancery,  jurisdiction  over    606 

executor    or   administrator    600 

enjoin,  may   606 

trustees    ■ "°" 

Co-Executors,   etc.,  of,  office  devolves  upon   those   remaining  611 

Disobedience,  for   ^^ 

citation  to  account,  of  630 

order  of  court,  of  600 

Grounds  for  removal   ^^ 

considerations  controlling  court  on  application  for  .  .  601 

disobedience  of  order  of  court 600 

failure   to   file   inventory   or   account    604 

incapacity  of  executor,  etc..   605 

incompetence    ^ 

intemperance    ■ °"7 

non-residence  of  executor,  etc 605 

violation  of  duty   "^7 

waste  and  misconduct  ""' 

what  constitutes   "*'-' 

when  court  will  remove  for 601 


1574  Probate;  Law  and  Practice. 

REMOVAL  OF  EXECUTORS.  ADMINISTRATORS,  GUARD- 
IANS AND  TRVST'E'ES— Continued. 

Incompetence,   for    605 

Intemperance,   for 607 

Inventory,  for  failure  to  file  604 

Liability  of  removed  executor,  etc 609 

Non-residence,  in  case  of  605 

Notice  of  application   , 605 

rule  to  show  cause,  by 606 

Orphans'  Court,  jurisdiction  over 600 

Practice  on 605 

notice  of  application   605 

rule  to  show  cause,  may  be  by 605 

method  of  service,  court  may  direct 605 

service  of    605 

Procedure,  outline  of   873 

Removed  executor,  etc ,. 608 

duties  of    608 

account,    to    608,  619 

deliver  assets  of  estate  to  successor,  to  608 

liability  of    609 

Revocation  of  letters  distinguished  from  609 

Security  on  sale  of  lands  for  debts,  for  failure  to  give 504 

Successor  to  removed  610 

appointment  of    610 

bond  required  on 611 

form  of   611 

jurisdiction  of  Orphans'  Court   610 

powers  of  611 

actions  by 

recovery  of  property  of  estate,  may 

maintain    611 

removed  executor,  etc.,  may  maintain 

against 612 

removed   executor,    etc.,    has   all   the 

powers   of    611 

trustee  appointed  may  exercise  power  of  sale 612 

Trustee,  successor  to  may  exercise  power  of  sale  612 

Violation  of  duty,  for  ~. 607 

Waste  and  misconduct,  for   601 

what  constitutes   602 

when  court  will  remove  for 601 

REPUBLICATION  OF  WILL— 

Execution  of  codicil  amounts  to  174 

annexation  of  codicil  to  will  unnecessary   175 

efifect  of   174 

establishes  will  as  it  existed  when  codicil  executed  174 


General  Index.  i^j^ 

REPUBLICATION  OF  WILL-Coutinncd. 

Execution  of  codicil  amounts  to — Continued. 

language  necessary  to  accomplish   176 

validates  defective  will i-, 

improperly   executed    ,;^ 

revoked  will   ,- , 

will   of  incompetent    175 

REVOCATION  OF  WILLS— 

Alteration   jg. 

original  will  stands  if  not  properly  attested   185 

presumption  that,  was  made  after  execution  185 

declarations  of  testator  admissihle   .  .  186 

Birth  of  issue,  by  jg^ 

partial,    when    jg^ 

total,   when    jgg 

Burning,  by   j^^ 

intention,  ineffective  without  178 

who  may  perform  act   170 

Cancelling,  by f  j-^ 

mistake,  by,  effect  of I7g 

pencil,  effective  I7g 

what  sufficient   178 

who  may  perform  act   I7g 

writing  memorandum  on  margin  of  will   178 

Codicil,   by    ,-7^  jg^ 

express  revocation  of  will  unnecessary   182 

Conditional ij^i 

cancellation  of  portion  of  will  with  view  to  new 

will   1H2 

destroying  one  page  and  sul)stituting  aiKither  after 

execution    1S2 

erasing  name  of  executor  and  substituting  anotiier  181 

Destruction  necessary 178 

illustrations  of  rule  178 

ineffective  without  intention    178 

prevented  by  fraud,  when  178 

who  may  perform  act  179 

Evidence  of,  see  Evidence. 

Intention  necessary   1 78 

frustrated  by  fraud,  when  1 78 

ineffective  without  physical  destruction    178 

time  to  which  question  of  intent  relates  180 

Later  will  177,  182 

contingent  will,  I)y   183 

effects  of  express  revocation  183 

express  revocation  unnecessary 182 


1576  Probate  Law  and  Practice. 

REVOCATION  OF  WILLS— Contimted. 

Later  will — Continued. 

revival  of  prior  by  revocation  of  later  will  183 

later  will  expressly  revokes  prior  will,  when 183 

Marriage  does  not  operate  as   187 

Nuncupative  will,  by    242 

Obliterating,  by  177 

mistake,  by,  effect  of   179 

what  sufficient  178 

who  may  perform  act  179 

Partial  revocation    179 

birth  of  issue,  by 186 

declarations  of  testator  186 

increasing  residuary  bequest,  effect  of   180 

presumed  to  have  been  done  after  execution  of  will  . .  185 

remainder  of  will,  does  not  affect 179 

residuary  bequest,  increasing,  effect  of 180 

time  to  which  question  of  intent  relates  180 

Pencil  cancellation  valid   179 

Requisites  to  accomplish 178 

by  whom  act  may  be  performed 179 

intent  and  physical  destruction  must  co-exist 178 

intent  conditional  on  accomplishing  change  in  will 

which    fails    181 

Revival  of  prior  will  by  revocation  of  later 183 

where  later  will  expressly  revokes  former 183 

Revocability  an  inherent  element  of  wills  177 

Statutory  provisions   177 

Tearing,  by 177 

intention  to  revoke  necessary   178 

mistake,  by,  effect  of   179 

prevented  by  fraud,  when  178 

tearing  off  seal,  by   178 

what  sufficient  178 

who  may  perform  act 179 

Who  may  perform  act   179 

RULES  OF  PRACTICE— 

Binding  as  statutes,  are  261 

Ordinary  may  make  for  Prerogative  and  Orphans'  Courts  ....  3 

RULE  TO  SHOW  CAUSE— See  also  Process. 

Service  of  39 

proof  of    39 

When  may  be  used   39 


General  Index.  1577 

SALE  OF  LANDS  BY  EXECUTORS.  ADMINISTRATORS. 
GUARDIANS  AND  TRUSTEES— See  also  Sale  of 
Lauds  for  Debts. 

Adjournment  of   50? 

certain  adjournments  validated   508 

publication  of  notice  of  necessary,  when 508 

Administrator,  right  of  to  purchase  lands  of  estate  450 

lands  sold  to  satisfy  execution   456 

own   sale,  at    450 

official  sale  453 

ratification  of  sale  by  heirs 455 

relief  afforded  heirs   453 

effect  of  laches  455 

Adminstrator  c.  t.  a.,  by 

jurisdiction  of  Orphans'  Court   447 

procedure,  outline  of  848 

proof  of  value  of  lands  requirecW 447 

purchaser  not  required  to  look  to  application  of 

purchase  money    44^ 

right  of  to  purchase  at  sale 450 

where  authorized  by  will  456 

security   required    447 

Administrator  c.  t.  a.,  under  power  in  will 44i 

ancillary  administrator  c.  t.  a.,  powers  of 444 

authority  of   44i 

when  will  directs  sale  without  naming 

executor    445 

confirmation   of   required    44^ 

notice  of  intention  to  report  sale 

for  confirmation   446 

service  upon  non-residents  446 

residents    . . .  446 

petition  for  confirmation   446 

afiidavits  to  l)e  annexed  to  446 

recitals  of   446 

foreign  will,  of 

probated  in  this  state,  when   444 

recorded  in  this  state,  when  445 

power     devolving    upon     executor    as    trustee. 

where   443 

procedure,  outline  of "48 

will  directs  sale  but  names  no  executor,  when  .  .  445 

Advertisement  required  of  pul)lic  sale   5o6 

posting  of    506 

publication  of   5o6 

^                                                  (krman  pa|)er,  in   5"" 


15/8  Probati;  Law  and  Practice. 

SALE  OF  LANDS  BY  EXECUTORS,  ADMINISTRATORS, 
GUARDIANS  AND  TRUSTEES— Continued. 

Appeal  from  order  setting  aside 514 

confirming  sale   514 

Brokers  commissions  on   555 

when  proper   555 

Co-executor,  etc.,  by,  see  Co-Exccutors. 

Conduct  of  sale   5^5 

adjournments  507 

certain   adjournments  validated    508 

private  sale,  may  be  sold  at  505 

confirmation  of,  see  Report  of  Sale,  this  title 
infra. 

publication  of,  when  necessary   508 

public  sale,  at 506 

advertisement  of  required  506 

•                            posting  of  506 

publication  of    506 

German   newspaper, 

in    507 

Confirmation  of    510 

appeal   from  order    514 

application  for,  practice  upon   512,  847 

higher  ofifer,  not  grounds  for  denial  of   510 

inadequacy  of  price,  effect  of    510 

irregularity    in    publication    of    notice    of    sale, 

effect  of   511 

new  sale  ordered,  practice  when  511 

notice  of  application  for   510 

service  on  non-residents    510 

residents    510 

order  confirming  512 

appeal   from    514 

collateral  attack  on    512 

evidential  value  of  513 

validity  of   512 

practice  on  application   512,  847 

practice  where  new  sale  is  ordered  511 

report  of  sale,  see  Report  of  Sale,  this  title  infra, 

subsequent  higher  offer  not  ground  for  denial  of  510 
Contracts  by  executor,  etc.,  for  sale  of,  specific  performance 

of  by  Chancery  505 

Contracts  of  decedent  for,  to  fulfill,  see  Lands  of  Decedent. 

Curtesy,  right  of  not  affected  by 509 

Death  of  personal  representative 

confirmation  of  sale  after  495 

proceedings  in  case  of   495 

order  of  sale  made,  after   495 

proceedings  in  case  of    495 


General  Index.  1579 

SALE  OF  LANDS  BY  EXECUTORS.  ADMINISTRATORS. 
GUARDIANS  AND  TRUSTEES— fox/n/ia-rf. 

Death  of  purchaser  after  sale 496 

proceedings   in   case   of    496 

Deed  of  conveyance   5 14 

authority  to  execute    514 

covenants  of  title  invalid    515 

curtesy    not    affected    50Q 

dower  not  affected  509.  516 

estate  conveyed  by    515 

sale  more  than  one  year  after  decedent's  death. 

when   516 

sale  within  one  year  of  death  of  decedent,  wlicn  515 

execution  of    516 

recitals  of 514 

Dower  rights  not  affected  hy   509 

Execution,  to  satisfy,  right  of  executor,  etc..  to  purchase  at..  456 

Executor,  hy.  to  estate  not  permitted  451 

Executor,  by,  under  power  of  sale  430 

general   power    434.  436 

implied,   when   power  will   be    431.  434 

liability    of    executor    440 

good  faith,  must  exercise   440 

selling  at  improper  time,  when 440 

limited  power,  under 434.  436 

manner   of    selling    43S 

may  lay  out  streets   43S 

surviving  executor  may  execute 436 

what  property  may  be  sold  438 

time  within  which  jjower  ma^'  be  exercised 43Q 

directions  in  will  must  be  complied  witli   439 

Executor,  etc.,  right  of  to  purchase  lands  of  estate  at  his  nwn 

sale    450 

authorized  by  will,  when   456 

ratification  of  sale  by  cestui  455 

relief  afforded  cestui    453 

laches,  effect  of    455 

.    Foreclosure  sale,  purchased  at   42^ 

may  lie  sold   by  executor,   etc..  witliout   order  of 

court   4-4 

Guardians,  by.  see  Guardians. 

OuarcHans.  right  of  to  purchase  lands  of  estate   430 

authorized  by  will,  where   456 

lands  sold  to  satisfy  e-xccutinn  4.S6 

official  sale,  at  4.S3 

own  sale,  at  .  45" 

ratification  of  sale  by  ward    455 


1580  Probate  Law  and  Practice. 

SALE  OF  LANDS   BY  EXECUTORS,  ADMINISTRATORS, 
GUARDIANS  AND  TRUSTEES— Coiiiiimcd. 

Guardians,  right  of  to  purchase  lands  of  estate — Coutiiiitcd. 

rehef  afforded  ward  453 

effect  of  laches  455 

where  authorized  by  will  456 

Interest  conveyed  by  515 

sale  within  one  year  of  decedent's  death  515 

more  than  one  year  after  decedent's  death  516 

Lands  purchased  by  executor,  etc.,  by  mistake,  of  425 

AParried  executrix,  etc.,  by  449 

husband  need  not  join  in  449 

lands  purchased  at  foreclosure  sale  449 

husband  need  not  join  in   449 

Official  sale,  right  of  executor,  etc.,  to  purchase  at 453 

Payment  of  debts,  for,  see  Sale  nf  Lands  to  Pay  Debts. 

Power  of  sale,  under   430 

general  power   434-436 

implied,  when  will  he   431-434 

limited  powers   434-436 

surviving  executor  may  execute   436 

Private    sale,    may    be    at    506 

confirmation  of,  see  Re  fort  of  Sale,  this  title  infra. 

Proceeds  of,  liability  of  for  debts   460 

Public  sale  at 

advertisement  required   506 

posting   of    506 

publication   of    506 

'lerman   paper,  in    507 

Purchase  of  lands  In-  executor,  etc..  at  his  own  sale   450 

authorized    by    will,    where    456 

general    rule    stated    450 

exceptions  to  rule   452 

official  sale,  at   453 

relief   afforded   cestui    - 453 

effect   of   laches    455 

measure  of  damages   454 

ratification  of  sale  by  cestui  455 

where    authorized    by    will 456 

Purchaser  at 

death  of  after  sale,  proceedings  in  case  of  497 

duty  of   513 

refusal  of  to  comply  with  conditions  of  sale  497 

liability  of  purchaser  497 

proceedings  in  case  of   497 

right  of  executor,  etc.,  to  be  450 


General  Index.  1581 

SALE  OF  LANDS   BY  EXECUTORS,  ADMIXISTRATORS. 
GUARDL\XS  AXD  TRUSTEES— Co»/i;;Hrrf. 

Report  of  sale    509 

notice  of  intention  to  make  510 

service  of  on  non-residents   510 

residents    510 

recitals  of    510 

verified,  must  be   509 

Restraint  of  sale  by  chancery  504 

when  court  will  order    504 

Specific    performance    of    contract    for.    when    chancery    will 

decree 505 

Trustees,  by 

appointed  by  court,  may  sell   299 

estate  to,  not  permitted  451 

lands  purchased  by  at  foreclosure  sale 352 

mistake 425 

Trustees,  right  of  to  purchase  lands  of  estate  450 

authorized   by   will,   where    456 

lands  sold  to  satisfy  execution  456 

official  sale,  at  453 

own  sale  at  450 

relief   afforded   cestui    453 

effect  of  laches 455 

ratification  of  sale  by  cestui    455 

Validity   of    5ii 

collateral  attack  on  512 

SALE  OF  LANDS  FOR  DEBTS— 

Account  of  personal  assets  and  debts  to  be  presented  470 

debts  inserted  not  taken  out  of  statute  of  limitations  473 

specific,   must   be    47- 

under  oath,  must  l)e   473 

Appeal  from  order  for   • 501 

who  may  take    501 

Application  for  by  executor  or  administrator 470 

petition    for    47<i 

co-executors,  by   47' 

necessity   for    470 

recitals  of  / 47i 

verified,  to  l)e   471 

Application   for,  liy  judgment  creditor   47' 

jurisdiction  of  court  472 

lies,   when    47' 

notice    of    application    17- 

petition    47' 

relief    provided,   extent   of    47^ 

when   lies    47' 


1582  Probate  Law  and  Practice. 

SALE  OF  LANDS  FOR  D-EBTS— Continued. 

Bond  by  heir  or  devisee  to  prevent  sale 474 

amount  of   475 

condition    of    475 

lands  may  be  sold  on  failure  to  comply  with  .  "475 

hearing  on  rule  to  show  cause  adjourned  ....  475 

prosecution  of  475 

disposition  of  proceeds   475 

judgment  in  suit   475 

notice    of    application    for    order 

directing   475 

practice  on    475 

Bond  required  from  executor  or  administrator   502 

amount  of   502 

breaches  of    503 

condition    of    503 

necessity    for 503 

removal  of  executor  or  administrator  for  failure  to  give  504 

sureties  on,  number  required   502 

Claims  of  creditors,  court  may  determine  validity  of  477 

Claims  of   executor,   disputed  by  co-executor,  jurisdiction   of 

court  over   478 

Court  of  Chancery 

jurisdiction  to  order   479 

to  restrain   479 

Curtesy,  free  from,  see  Dozuer  and  Curtesy. 
Death  of  personal  representative,  proceedings  in  case  of.  see 
Sale  of  Lands  by  Executors.  Administrators,  Guardians 
and  Trustees. 
Death  of  purchaser  after  sale,  proceedings  in  case  of,  see  5"^/^ 
of  Lands  by  B.vecutors.  AdmintsPrafors.  Guardians  and 
Trustees. 

Debts  for  which  lands  will  be  ordered  sold  484 

administration  expenses    485 

advances   by   personal    representative    484 

collateral  inheritance  tax   485 

commissions    of    executors,    etc 485 

decedent,   for  debts  of  only    484 

general   rule   stated    484 

limi4:ations,  debts  barred  by  statute  of  485 

Deed   of   conveyance,    see   Sale   of  Lands   by   E.vecutors,   Aduiin- 

istrators.  Guardians  and  Trustees. 
Dower,  free  from,  see  Dozver  and  Curtesy. 

Dower,  lands  devised  in  lieu  of   487 

Hearing  on  retvirn  of  order  to  show  cause  476 

adjournment   of    479 

claim  of  executor  disputed  by  co-executor   478 


General  Index.  1583 

SALE  OF  LANDS  FOR  D-EBTS— Continued. 

Hearing  on  return  of  order  to  show  cause — Continued. 

claims  of  creditors,  court  may  determine  validity  of  477 

heir  may  give  bond  to  prevent  sale   475 

adjournment  of  hearing,  when 475 

procedure,  outline  of   846 

proceedings    at    476 

lands,  title  to,  court  will  not  try 478 

testimony  taken   477 

title  to  lands,  court  may  not  try 478 

Heirs  and  devisees 

bond  by,  to  prevent  sale,  see  Bond  by  Heir  or  Devisee 

to  Prevent  Sale,  this  title,  supra, 

contribution,  may  compel  when  lands  ordered  sold  ....  519 

Insolvent   estate,   of    596 

Judgments,  free  from,  when  court  may  order   489 

Lands  devised  in  lieu  of  dower 487 

escheated,    487 

Lands  in  more  than  one  county,  when   480 

confirmation  of   sale    481 

form  of  application   481 

proceedings  for  sale    480 

Lands  specifically  devised   486 

contribution    in    case   of    sale   of    486 

Lands  which  may  be  sold   486 

deficit,  only  suflficient  to  raise  488 

devised    486 

contribution  in  case  of  sale  of  486 

in  lieu  of   dower    487 

escheated    487 

Mortgaged  lands 

sale   free   from   mortgage    500 

disposition  of  proceeds  of  sale  500 

order  for  sale,  form  of 5™> 

payment  of  mortgage  debt,  proceedings  where 

court  does  not  make  order  for 501 

Order  for  sale   487 

amount  to  be  raised,  must  specify 487 

appeal     from 5^1 

creditors,   effect   upon   claims   of    499 

dower  or  curtesy,   free   from,   when   court   may  order. 
see  Dower  and  Citrtcsy. 

insolvent,  where  estate  is    4^3 

judgment,  free  from,  when  court  may  order  489 

lands  in  county,  other  than  where  administration  was 

granted,  operation  on  lands   480 

lOI 


1584  Probate  Law  and  Practice. 

SALE  OF  LANDS  FOR  DUBTS— Continued. 

Order  for  sale — Continued. 

lands  sold,  only  sufficient  to  raise  deficit  488 

method  of  selling,  may  direct  487 

streets  may  be  laid  out  and  easements  of  right 

of  way  created  487 

mortgage,   sale   free   from    500 

disposition  of  proceeds  of  sale  500 

form  of  order  of  sale 500 

proceedings    when    court    does    not    make 

order  concerning  payment  of  mortgage  501 
operation  of  on  lands  in  county  other  than  where  ad- 
ministration was  granted    480 

Orphans'    Court,    by,    of    county    other    than    that    in 

which    letters    granted     480 

application,    form    of    481 

confirmation    of    sale    481 

proceedings  to  obtain   480 

personalty  must  be  first  exhausted  482,  483 

exoneration  of  personalty  by  will   482 

specific  legacies  must  be  applied  482 

sale,  method  of,  court  may  direct    487 

streets   may  be  laid   out  and   easements   of   right 

of    way   created    487 

second  order,  court  may  make   499 

specify  lands  to  be  sold,  must  488 

sum  to  be  raised,  must  specify   487 

time  within  which  order  may  be  made    499 

validity  of  order 498 

cannot  be  attacked  collaterally   498 

Order  to  show  cause 

application  by  executor,  etc.,  upon  473 

judgment    creditor,    upon     471 

hearing  on   adjourned   if   heir  at   law   gives  bond   for 

payment  of  debts   475 

posting  of    474 

publication  of  474 

returnable,    when 473,  474 

Personalty  must  be  exhausted  before  court  may  order 482 

exoneration  of  personalty  by  will    482 

specific  legacies  must  be  applied 482 

Procedure,  outline  of   844 

Proceeds  of  sale  517 

assets  for  payment  of  debts 517 

disposition  of   517 

interest  on  considered  personalty 518 


General  Index.  1585 

SALE  OF  LANDS  FOR  DEBTS— Continued. 

Proceeds  of  sale — Continued. 

judgments   against   lieirs   and   devisees,   pay- 
ment of   from    519 

surplus   considered   real   estate    517 

Restraint  of  sale  by  Court  of  Chancery 504 

jurisdiction    504 

Sale,  conduct  of,  see  Sale  of  Lands. 

rules  concerning  judicial  sales  apply  to 505 

Security    required    on,    from    executor   or    administrator,    see 
Bond  Required  on  Sale,  this  title,  supra. 

Specific  legacies  first  applied  to  payment  of  debts 486 

contribution   in  case  of    486 

Specific'performance  of  sale,  when  Chancery  will  decree  ....  505 

Title  to  lands,  court  may  not  try   478 

What  lands  may  be  sold   496 

devised   486 

contribution  in  case  of  sale  of  486 

in  lieu  of  dower 487 

escheated 487 

sufficient  only  to  raise  deficit  488 

SUBPCEXA  TO  APPEAR— 

Orphans'  Court  may  issue  39 

Surrogate,  before 

may  be  issued  liy  surrogate 57 

SUBSTITUTIONARY  ADMINISTRATION— See  also  .Admin- 
istrators. 

Application  for  -58 

notice    of,    see    Notice    of   .IfiplicatiDn,    this    title, 
infra. 

practice  on   -59 

recitals  of  -58 

value  of  estate,  affidavit  of  required  258 

verified  to  be   -58 

writing,  to  Ije  in    285 

Death  of  administrator,  after   -76 

deceased  administrator,  executor,  etc.,  of 

account,  may  be  required  tn    616 

liability  of   for  waste    3</) 

Distributive  share,  suit  lies  against  to  recover  733 

Duties  of  administrator  -77 

Legacy,  suit  lies  against  to  recover   733 

Necessary,   when    •  ■  •  -7^ 


1586  Probate  Law  and  Practice. 

SUBSTITUTIONARY  ADMINISTRATION— ConfjuM^rrf. 

Neglect  to  apply  for  forty  days  278 

notice  of  application   278 

service  of  upon  non-residents  278 

residents    278 

proceedings   when    278 

Non-residents,  residents  preferred  over   262 

Notice  of  application  for   258 

effect  of  not  giving  260 

necessity  for    259 

recorded,  to  be   259 

renunciation  may  be   substituted   for    258 

required,   when    258 

service  on  non-residents   259 

residents    259 

verified,  to  be   259 

writing,  to  be  in  259 

Powers  of  administrator   276 

account,  may  require  executor,  etc.,  of  deceased  ad- 
ministrator to    618 

possession  of  unadministered  assets,  to  demand 2"]"] 

Prerogative  Court,  in,  see  Prerogative  Court. 

Procedure,  outline  of  818 

Qualification  of  administrator  261 

Residents  preferred  over  non-residents 260 

Renunciation  of  next  of  kin 258 

form  and  contents   259 

necessity  for  259 

notice  of  application  may  be  substituted  for  ....  258 

recorded,  to  be  259 

Suit  lies  against,  for  recovery  of  distributive  share 733 

Who  entitled  to   278 

SUBSTITUTIONARY  ADMINISTR.\TION  c.  t.  a.— See  also 
Administrators  and  Administrators  c.  t.  a. 

Application  for 258 

notice    of,    see   Notice   of  Application,   this    title, 
infra. 

practice    on     259 

recitals    of    258 

renunciation   of   next  of  kin,   see  Renun- 
ciation of  Next  of  Kin.  this  title,  infra. 

value  of  estate,  affidavit  of  required 258 

verified,  to  be   258 

writing,  to  be  in 258 


GENliRAIv    LXDKX.  1587 

SUBSTITUTIONARY  ADMINISTRATIOX  c.  t.  a.— Continued. 

Bond  of  administrator,  see  Bonds  of  Executors,  Administra- 
tors, Guardians  and  Trustees. 

Death  of  administrator  with  the  will  annexed,  upon   277 

Death  of  surviving  executor,  upon  275 

Deceased    executor,    etc.,    of 275 

account,   may  be   required  to    618 

duties  of    618 

liability  of  for  waste   399 

not    authorized    to    administer    estate    of    original 

decedent  275 

Discharge  of  executor,  upon 275 

Duties  of  administrator  277 

Necessary  when  275 

death,  discharge  or  removal  of  administrator  c.  t. 

a.  upon   276 

death  of  executor,  upon   275 

discharge  of  executor,  upon 275 

removal  of  executor,  upon    275 

Neglect  to  apply  for  forty  days 278 

notice  of  application   278 

service  of  notice  of  on  non-residents   278 

residents    278 

proceedings    when    278 

Non-residents,  residents  preferred  over  262 

Notice  of  application  for   258 

effect  of  not  giving 260 

necessity    for    259 

recorded,  to  be 259 

renunciation  may  be  substituted  for  258 

required   when    258 

service  of  on  non-residents    259 

residents    259 

verified,  to  be   258 

writing,  to  be  in   • 258 

Persons  in  interest  neglect  to  apply  for,  when  278 

notice  of  application,  when  required   278 

renunciation  of  next  of  kin  278 

Powers   of   administrator    276 

Prerogative  Court,  in,  see  Prerogative  Court. 

Procedure,  outline  of   Sio 

Qualification   of   administrator    261 

Removal  of  executor,  upon  275 

Renunciation  of  next  of  kin    258 

form  and  contents   259 

necessity  for  259 


15,88  Prouate  Law  and  Practice. 

SUBSTITUTIONARY  ADMINISTRATION— Co^/j/H/rrf. 

Renunciation  of  next  of  kin — Coiiliiiued. 

notice  of  application,  may  be  substituted  for  ....  258 

recorded,  to  be    259 

Residents  preferred  over  non-residents   262 

Residuary  legatee,  right  of  272 

who  entitled  after  death  of   272 

Statutory  provisions 275 

Suit  lies  against  for  recovery  of  legacy 733 

Who  entitled  to   278 

SUITS  FOR  LEGACIES  AND  DISTRIBUTIVE  SHARES— 
Administrator 

costs  chargeable  against,  when   737 

unreasonatle  delay  in  paying,  in  case  of  .  737 

Chancery,  jurisdiction   over    737 

Citations    730 

clerk,  to  be  signed  by  730 

isue  of  on  filing  petition  730 

petitioner  or  solicitior,  to  be  signed  iw 730 

Clerk 

citation,   to  sign    730 

fees  of,  two-thirds  of  those  allowed  in  Chancery 730 

perform  same  duties  as  Clerk  in  Chancery,  to 730 

Costs    737 

chargeable  against  personal  representative,  when  737 

unreasonable  delay  in  paying,  in  case  of . .  .  .  737 

Decree  of  distribution   731 

suit  for  distributive  share,  necessary  before  bringing.  .  731 

~  suit  for  legacy,  not  necessary  before  bringing 731 

Defenses    733 

debt  due  from  legatee  or  distributee  set-off  against  733 

barred  by  limitations,  may  be   734 

outstanding  disputed  claim  against  estate,  when   .  . .  735 

-^practice    736 

release  of  legatee  or  distributee 734 

set  aside  in  Chancery,  when  will  be .  735 

Demand,  necessity  for   730 

Disputed  claim  against  estate   735 

when  a  defense    735 

practice    736 

Distributive  shares,  for 

decree  of   distribution  necessary   before  bringing  731 
Evidence,  see  Eiidence. 
Executor 

costs  chargeable  against,  when 737 

unreasonable  delay  in  paying,  w-hen   737 


General  Index.  1589 

SUITS  FOR  LEGACIES  AND  DISTRIBUTIVE  SHARES- 
Coiitiiuted. 

Executor,  etc.,  of  deceased  executor,  etc. 

do  not  lie  against    -jj 

Fees    y:io 

clerk,  of.  two-thirds  of  those  allowed  in  Chancery 730 

solicitor,  of,  same  as  in  Chancery   7jo 

Legacy,  for 

decree  of   distribution   not  necessary  hefore  bringing  731 

Orphans'  Court  in   ; 7^q 

jurisdiction   of    731 

Parties  to   -32 

debtors  of  estate   -32 

debtors  of   executor    -32 

executor  dead,  where   733 

general  rule  as  to j^j 

not   in  esse    j^j 

residuary  legatee j^y 

Petition    J30 

commenced    by    730 

recitals   of    730 

verified,  to  be    730 

Practice 

governed  by  rules  of  practice  of  Court  of  Chancery  730 

Procedure,  outline  of   878 

Refunding  bond 

amount  of   731 

condition    of 731 

filed,  when  to  be 731 

infant,  by   73 1 

refusal  of  personal  representative  to  accept,  pro- 
ceedings   on     73 1 

tender  of,  necessity  for   731 

Releases  of  legatees  or  distributees  7i.\ 

defense,  as  a   y;^^ 

set  aside  in  Chancery,  wlien  will  lie 735 

Solicitor 

citation,  to  sign    730 

fees  of,  the  same  as  in  Chancery 730 

Sul:)Stituted    administrator,    against     733 

SURROGATE— 

Acts  of  judicial    56 

Affidavits  for  use  before 

proctors  not  to  take 67 


1590  Probate  Law  and  Practice. 

SURROGATE— Co»/mM^d. 

Affidavits,  what  may  take 60 

Administration,  see  also  Administration. 

jurisdiction  to  grant  251 

nature  of  jurisdiction   252 

particular  purpose,   for,   jurisdiction  to   grant  283 

presumption  of  death,  on  279 

temporary  or  special,  jurisdiction  to  grant  .  .282,283 

Administration  bonds,  to  file  59 

Administrator,  practice  when  61 

Affidavits  for  use  before,  see  Affidavits. 
Appeals  from,  see  Appeals. 

Clerk  of   Orphans'  Court    62 

duties  as  62 

Clerk  of  Surrogate's  court,  is  57 

Court,  holds  a  56 

Decrees  of,  see  Decrees. 
Depositions  de  bene  esse 

surrogate  may  issue  commission  58 

Depositions,  what  may  take  60 

Deputy  surrogate,  proofs,  depositions,  etc.,  which  may  take  ...  60 

Doubts  on  face  of  will,  effect  of  on  jurisdiction  of 199 

Duties  of  as  clerk 

administration  bonds,  to  file   59 

clerk  of  Orphans'  Court,  to  act  as  62 

clerk  of  Surrogate's  court,  to  act  as  57 

guardians'   bonds,   to   file    59 

index  papers  and  records,  to 59 

penalty  for  failure  or  neglect 59 

inventories,  to  transmit  to  "Prerogative  Court  60 

papers,  what  required  to  file 59 

wills,   to   record    58 

wills,  to  transmit  to  Prerogative  Court 60 

Fees  of,  see  Costs  and  Counsel  Fees. 

For  time  being  may  sign  certificates,  etc 59 

Guardians'  bonds,  to  file 59 

Guardianship  of  minors 

jurisdiction  concurrent  with  Orphans'  Court  and 

Ordinary   741 

History  of  office  55 

Index  papers  and  records,  to  59 

penalty  for  failure  or  neglect  to 59 

Jurisdiction    57 

administration,   to  grant    251 

caveat  filed,  after    196 

restored  when  caveat  withdrawn 198 

guardianship,  to  grant   741 


General  Index.  1591 

SURROGATE— Coiilwucd. 
Jurisdiction — Continued. 

letters  testamentary,  to  issue    195 

limited  to  matters  arising  in  his  county 56 

probate  of  wills   195 

caveat,  effect  of  liling  196 

citations    after    issue   of    ig6 

non-residents,   of    196 

proceedings  in  Orphans'  Court 

terminated,  after    196 

statutory,  only  57 

subpoena  to  appear,  may  issue 57 

penalty  for  disobedience  of   57 

suspended  by  filing  caveat   197 

restored  by  withdrawal,  when 198 

Letters  testamentary,  jurisdiction  to  issue   195 

Nature  of  office   56 

Non-resident  executor,  etc.,  duties  of  surrogate  when  process 

served  upon  in  case  of  power  of  attorney 209 

Papers,   required  to   file    59 

Power  of  attorney,  duty  of  upon  service  of  process 209 

Probate  of  wills 

jurisdiction  over,  see  Probate  of  Wills. 

surrogate  executor,  when   61 

Process,   service  upon   when  non-resident   executor,  etc.,  has 

given  power  of  attorney  209 

Proofs,  what  may  take   60 

Records  of,  evidential  value  of 60 

Reference  of  exceptions  to  account,  to  36,  665 

Removal  of  special  guardian  of  non-resident  minor  l)y   756 

Service  of  process  upon  where  non-residcnl  executor  etc.,  has 

given  power  of  attorney 209 

Testimony  for  use  before  Orphans'  Court,  may  take  47 

practice    47 

Transcript  of  records  of   58 

admissibility  of  in  evidence   59 

evidential  value  of    60 

Validity  of   acts  of    5^ 

TAXES — See  also  Lands  of  Decedent. 

Inheritance    553 

allowance  of  when  paid  by  personal  representa- 
tive      553 

Whether  payable  out  of  income  or  corpus   554 

TESTAMENTARY  CAPACITY— 

Burden  of  proving "6 

attacking  sanity,  on  person "6 


1592  Probate  Law  and  Practice. 

TESTAMENTARY  CAPACITY— Continued. 

Burden  of  proving — Continued. 

drunkenness  alleged,  when  117 

insanity  existed  prior  to  execution  of  will,  where  ...  116 

Commission  of  lunacy   119 

evidential  value  of   119 

Conduct  of  testator  119 

business  ability  material  119 

Conflict  of  law 103 

personal  property,  to  execute  will  of 103 

law  of  testator's  domicile  governs   103 

real  estate,  to  execute  will  devising 103 

law  where  land  is  situate  governs 103 

Declarations  of  testator  118 

competency  of 118 

making  of  will,  as  to  118 

Delusions    m 

defined    iii 

disposition  made  by  testator,  must  influence   112 

prejudice   distinguished    113 

Disposing  memor}-,  what  constitutes  no 

Drunkenness,   effect  of    114 

condition  at  time  of  making  will  the  test 115 

presumptions,  when  alleged   117 

Dying  persons,  of    109 

Eccentricity,  effect  of 114 

Evidence,  see  Ezndence. 

Expert  testimony   122 

received  with  caution 122 

value  of    122 

Feeble  intellect,  effect  of  1 14 

Infants,  of ; 104 

common  law,  rule  at 104 

New  Jersey,  statutory  rule  in   104 

will  disposing  of   guardianship  of   minor  child,   may 

make    743 

Insanity   no 

commission  of  lunacy,  effect  of  119 

delusions  defined  iii 

disposition  made  by  testator,  must  influence  112 

prejudice  distinguished  from  113 

monomania,  effect  of  ill 

partial,  eft'ect  of   in 

suicide,  as  evidence in 

test  as  to  what  constitutes  no 


Gkxekau  Im)i:x. 


TESTAMENTARY  CAPACITY— C(.;,/,;n/.(i. 


1593 


Married  women,  of  104 

common  law,  rule  at   104 

New  Jersey,  statutory  rule  in   105 

Memory,  disposing,  what  constitutes  1 10 

Mental  capacity,  degree  required  106 

capacity,  same  required  for  will  of  personal  and  real 

property    107 

commission  of  lunacy,  effect  of i  ig 

delusions,  effect  of  1 1 1 

disposition  made  by  testator,  must  inriuence     iij 

prejudice  distinguished  from    113 

drunkennes.s,  eft'ect  of   114 

presumptions   117 

dying  persons   lor, 

eccentricity 114 

feeble  intellect   114 

mind,  unbroken,  need  not  be  106 

moderate  capacity  only  required 106 

monomania,  effect  of  in 

old  age  and  infirmity,  effect  of 109 

physical  debility,  eft'ect  of   log 

test  of  requisites   106 

testator's  mind  need  not  be  unhrcjken   106 

IMonomania,  effect  of   Ill 

Old  age  and  infirmity 107 

effect  of   107 

test  of  capacity,  in  case  of 107,  108 

Opinion  testimony ui 

admissibility  of    ui 

facts  upon  which  opinion  is  based  must  be  stated  .  ..  122 

Personal  property,  to  execute  will  of   103 

law  of  testator's  domicile  governs  103 

Physical  debility   log 

effect    of    109 

Prejudice  113 

delusions  distinguished  from   113 

Presumptions  of  1  lO 

drunkenness  alleged,  when    117 

insanity  existed  prior  to  making  will,  when  ....  1 16 

Keal  estate,  to  execute  will  of  103 

law  where  land  is  situate  governs 103 

Reasonableness  of  will,  evidential  value  of i.;i 

Subscriljing  witnesses  to  will  I-J3 

testimony  of 

contradiction   of   statements    made   out 

of   court    '-J 


J  594  Probate  Law  and  Practice. 

TESTA^IENTARY  CAPACITY— Continued. 

Subscribing  witnesses  to  will — Continued. 

testimony  of — Continued. 

period  within  which  limited   117 

discretionary  with  court,  is  . . . .  118 

weight  of    123 

Time  to  which  question  relates  103 

Unequal  or  unjust  disposition  of  property   120 

evidence  of  lack  of  capacity,  not  120 

suspicion,  will  looked  upon   with    121 

TRUST  COMPANIES— 

Application  for  appointment  as  executor,  etc 304 

affidavit,  statement  and  certificate  to  accompany  .  .  304 

Bond  required  from  306 

Deposit  of  securities  by > 303 

character  of  304 

mortgage  assigned  to  register  304 

register  to  receive   305 

unnecessary,  when  303 

Fund,  to  create  303 

character  of  securities  deposited   304 

mortgages  assigned  to  register  305 

register  to  receive  305 

unnecessary,   when    303 

TRUST  FUNDS— See  also  Trustees. 

Character  of,  changes  in  not  permitted  371 

liability  in  case  of   371 

Deposits  in  trust,  ownership  of  348 

Claim  of  cestui  against  estate  of  deceased  trustee  for 571 

assets,  cestui  must  trace  572 

application  of  rule  573 

illustrations  of  rule 573 

Smith  V.  Combs  distinguished  574 

nature  of  claim 571 

debt  of  decedent,  is  not  a  57i 

Removal  of  to  foreign  state  300 

foreign  trustee,  proof  of  appointment  of  300 

jurisdiction  of  court  to  authorize  300 

notice  of  application   300 

security  required,  in  case  of  300 

TRUSTEES— See  also  Trust  Funds. 

Absent  person,  for  estate  of 301 

bond  of  trustee   302 

distribution  of  estate 302 


General  Index.  1595 

TRUSTEES— ro»/i««f(/. 

Absent  person,  for  estate  of — Continued. 

inventory  of  trustee    302 

jurisdiction  to  appoint  *. . .  301 

Acceptance  of  trust  2^ 

probate  of  wills  amounts  to.  when   294 

Accounts  of,  see  Accounting. 

separate  from  those  as  executor,  should  be  kept 293 

Accountant,  m^'  not  employ  376 

Administrator  c.  t.  a.,  may  not  perform  trustee's  duties  ....296,297 
Agents,  employment  of,  see  Executors  and  Administrators. 
Appeal  from  decree  appointing,  see  Appeals. 

probate  of  will,  from  80 

suspends  powers  of   80 

Application  for  appointment  l)y  trust  company,  see  Trust  Com- 
panies. 

Appointment  of  by  court  296 

bond  required  from  296 

sureties  upon    296 

discharge  or  removal  of  trustee,  in  case  of 298 

jurisdiction   296,  297 

notice  of  application  298 

service  of.  incompetents,  upon 298 

minors,  upon   298 

within    state    298 

without  state  298 

powers  of  guardian  299 

original  trustee,  has  all  of   299 

sell  lands,  may  299 

procedure,  outline  of 867 

statutory  provisions  296 

construction  of  statute  296 

when  court  will  appoint 296.  297 

Appointment  of  by  will 293 

character   of   powers   and   estate  confided   deter- 
mines    293 

language  used  immaterial 293 

unnecessary  that  word  "trustee"  be  used 293 

Bonds   of,   see   Bonds  of  E.vecutors,   .Idniinislrators,   Cuard- 

ians  and  Trustees. 
Commissions  of.  see  Commissions  of  E.veeuti>-rs,  Aihninistra- 

tors,  Guardians  and  Trustees. 
Conveyances,  by 

cestuis  whose  consent  rKjuired  by  will  have  died, 

where   202 

Corporations,  foreign,  right  of  to  act   294 


1596  Probate  Law  and  Practice. 

TRUST'EUS—Conitnued. 

Discharge    of,    see    Dicharge    of   Executors,    Administrators, 

Guardians  and  Trustees. 
Discovery  of  assets  of  estate,  proceedings  by  to  obtain,  see 

Discovery  Proceedings. 
Discovery  against  as  to  condition  of  estate,  see  Discovery  Pro- 
ceedings. 

Duties  of  distinguished  from  those  of  executor  293,  859 

Expenditures,  see  also  Dislnirsemcnts. 

income  or  corpus,  whether  payable  from  553 

betterments  to  real  estate 556 

broker's  commissions  on  sale  of  real  estate 555 

general  rule  stated  553 

insurance    558 

interest  on  encumbrances   554 

municipal  assessments   557 

principal  of  encumbrances   556 

real  estate,  betterments  to  556 

insurance  558 

repairs  to    557 

taxes  554 

principal   and   income   devoted   to   sup- 
port of  widow,  where  556 

Foreign  corporations  as   294 

right  of  to  act 294 

Married  woman  may  be 317 

bond  of,  husband  may  be  surety  on 317 

Non-resident 

power  of  attorney  required  from,  see  Power  of 
Attorney. 

Office  of    293 

executor  distinguished  293 

nature  of   293 

devolution  of  on  death  of   295 

administrator   c.   t.   a.,    does   not   devolve 

upon    296 

Powers  of,  appointed  by  court 299 

land,  when  may  sell 299 

original  trustees,  have  all  of  299 

Releases  to,  see  Releases. 

Removal    of.    see    Removal    of    E.recnfors,    Administrators, 
Guardians  and  Trustees. 

Safe  deposit  box,  rent  of 377 

Sale  of  lands  by.  see  Sale  of  Lands  by  E.vecutors,  Adminis- 
trators, Guardians  and  Trustees. 
Security  required  from,  see  Bonds  of  E.vecutors.  Administra- 
tors, Guardians  and  Trustees. 


General  Index.  159- 

TRUSTEES— fo;(/nNU'(/. 

Substituted  by  court 

powers  of    299 

original  trustee,  has  all  of  jgg 

sell  land,  ina\-  299 

Successor  to  removed  610 

appointment  of   610 

bond  required  from  611 

form  of    611 

powers  of    611 

actions  which  may  be  maintained  hy   611 

recovery  of  property  of  estate,  for  ..  611 

removed  trustee,  against   612 

power  of  sale,  ma\'  exercise   612 

removed  trustee,  has  all  of  the  powers  of  . .  611 

Support  of  family  of  decedent  by 550 

allowance  for  unreasonable,  court  will  interfere  when  550 

"comfortable  support''  directed  by  will,  when  550 

payment  to  third  persons  for  support  of  family,  when 

will  directs   551 

Trust  companies  may  be.  see  Trust  Companies. 

Trust  funds,  changes  in  character  not  permitted 371 

liability  in  case  of  37i 

Trust  funds,  removal  of  from  state   300 

jurisdiction  of  court  to  authorize   300 

notice  of  application    300 

proof  of  appointment  of  foreign  trustee 300 

security  required  in  case  of  300 

Vouchers    642 

checks   as    642 

duty  of  to  preserve  642 

lodged  with  surrogate  on  accounting  642 

right  to  inspect  642 

UNDUE  INFLUENCE— 

Acquiescence  in  prejudices  of  testator  154 

Advice  as  to  testamentary  disposition  155.  156 

effect  of,  dependent  upon  relation  of  parties  155 

improper,  not  necessarily   155,  156 

Affection  and  kind  offices  156 

not  undue    I5<5 

Burden  of  proof i6l 

confidential  relations,  effect  of l6i 

burden  shifts,  when   ^^Ks 

sustained,   when    16.S 

general  rule  stated   i''- 

illustrations  of  rule   . .' "^» 


1598  Probate  Law  and  Practice. 

UNDUE  INFLUENCE— Com nnw^rf. 

Burden  of  proof — Continued. 

party  alleging  uncue  influence,  upon  161 

sustained,   when    165 

Confidential  relations,  effect  of  IS7 

alone,  do  not  constitute  157 

supplemented  by  other  indicia,  when 158 

presumption  of  undue  influ- 
ence, may  raise  158 

burden  of  proof,  effect  of  upon  162 

burden  shifts,  when   163 

sustained,  when    165 

general  rule  stated   162 

illustrations   of    rule    164 

standing  alone  do  not  constitute  157 

supplemented  by  other  indicia,  when  158 

presumption     of    undue     influence, 

may    raise    158 

Declarations  of  testator  170 

admissibility  of    170 

illustrations  of  rule   171 

mental  state  of  testator,  admissible  to  prove  ....  171 

Defined    149 

cannot  be  accurately   151 

Denunciation  of  person  discriminated  against  154 

presumption  of,  when  does  not  create   154 

Evidence,  see  Evidence. 

Extent  of  immaterial   150 

False  representations    150,  153 

acquiescence  in  prejudice  of  testator  not  sufficient  ....  154 

false,  must  be  to  invaUdate  will 1S4 

Fraud  152 

distinguished   152 

invahdates   will    153 

Free  agency  ^ 

must  destroy  _ ;   149 

Health  of  testator,  condition  of  material  151 

Immoral  relations 

effect  of    ., 152 

presumption  of,  does  not  raise   152 

suspiciously  scrutinized    158 

Importunity    156 

relation  between  parties,  effect  of  depends  upon  156 

rule  as  to  what  constitutes,  impossible  to  state  . .  156 

Indicia  of 151 

beneficiary  draftsman  of  will   151 


GexERAI,    IndKX.  I^yy 

LNDUE  INFLUENCE— C'<)/;//;/»rJ. 

Indicia  of — Continued. 

clandestinity    i-l 

confidential  relations  between  testator  and  beneficiary     157 

enfeebled  in  mind,  when  testator  is   151 

exclusion  from  testator  of  aatural  objects  of  his  bounty     151 

favored  beneficiary  draftsman  of  will  151 

testator  enfeebled  in  mind   1:^1 

Injury  to  some  person  necessary    150 

Issues  involved  in    170 

Legatee  participating  in  execution  of  will 166 

effect   of    166 

illustrations  of  rule  167 

Letters  and  papers  of  testator  172 

admissibility   of    172 

Mind  of  testator,  condition  of  material  151 

declarations  of  testator  admissible  to  prove  171 

Operation  and  effect  of   159 

may  invalidate  only  portion  of  will   159 

Opinion  testimcni}-    17^ 

value  of   173 

Persuasion    . 1^5,  156 

dangers  of    155 

improper,  not  necessarily    155,  156 

Prejudices  of  testator 

acquiescence  in    154 

Presumption    of    160 

denunciation    of    person    discriminated    against. 

when  does  not  create   154 

indicia,  proof  of  existence  of  certain,  upon 151 

beneficiary  draftsman   of   will    151 

clandestinity    151 

confidential     relations     iietween     testator 

and   beneficiary 157 

exclusion    f ro- 1   testator   of    natural   oli- 

jects   of      is  bounty    151 

testator  enfeebled  in  mind   151 

immoral  relations,  do  not  raise  15J 

possession   of   influence   and   motive   to   exert    it 

no    presumption    15J.  i6[ 

will    favored    160 

Proof  of.  direct  rarely  oljtainable   151 

Ratification  of  will  obtained  by Kk) 

retention  of  will  by  testator,  by  160 

^•iggestions    155,  156 

improper,  not  necessarily   155 


i6oo  Probate  Law  and  Practick. 

UNDUE  INFLUENCE— C\7//f/»»c-(/. 

Suspicious    circumstances    152 

insufficient  to  establish,  when   152 

Threats  constitute,  when  157 

estrangement,  of,  by  child  to  dependent  parent   157 

litigation,  of,  when   157 

Unequal  or  unjust  disposition  of  property  168 

efifect  of   16:^ 

illustrations  of  rule   169 

VICE  ORDINARIES— 

Applications  in  Prerogative  Court,  may  be  made  to   5 

Evidence  before,  method  of  taking  5 

General  reference  to  5 

Hearing  before,  practice  on  5 

Jurisdiction   of    4 

Motions  may  be  made  before 5 

References  to 4 

causes  on  final  hearing   5 

general   reference    5 

matters  which  may  be  referred   4 

practice   on    •. 5 

Stenographer  to   5 

Vice  chancellors  to  be   4 

WILLS— See  also  Probate  of  Wills  and  Contested  Probate. 

Alteration  of   185 

original  will  stands  if  alterations  not  properly  at- 
tested       181 

presumption  that,  were  made  after  execution   185 

declarations  of  testator  admissible   .  .  186 
Appeals  from  probate  of,  see  Appeals. 

decree  founded  upon  verdict  of  jury  from,  see  Con- 
tested Probate. 

Attestation  clause    140 

evidential  value  of 140,  141 

defective,  where   140 

recitals   of   presumed   true    141 

presumptions  arising  from    141 

rebutted,  may  be   14^ 

recitals  of  presumed  true   141 

purpose    of    MO 

what  is  meant  by 140 

Cancelling  fraudulently,  a  crime    IQO 

Capacity  to  execute,  see  Testamentary  Capacity. 

Concealing  f raudulentlv  a  crime  IQO 


General  Ixdkx.  lOoi 

It  L^—Contiuui-d. 
Conflict  of  law 

personal   property,   validity  of   will   bequcatliintj  gov- 

'           erned  by  law  of  testator's  domicile 97 

real    estate,    devising,    validity    of    governed    liy    law 

where  lands  situate  98 

Co  nstruction  of  by  Orphans'  Court  on  application  for  decree 

of  distribution   723 

Ccmtingent,  valid   g8 

illustrations   of    98 

'Jestroying  fraudulently  a  crime   190 

•  Discovery  of,  where  person  in  possession  refuses  to  produce 

for  probate  189 

practice  to  obtain  189 

i  Effective,  when  become  97 

Es  tate  per  autre  vie,  bequeathing,  execution  of  126 

Extrinsic  documents,   incorporation   of   in    99 

description  of  must  be  detinite   100 

exist  at  time  of  execution  of  will,  must  ico 

legacies  subject  to  deductions  by  advancements  dis- 
tinguished       ICO 

permitted,   when 99 

For  eign    211 

probate  of,  see  I'orciyii  If^ills. 

Fori  n  of    99 

blank  page  does  not  impair  validity   99 

immaterial  99 

letter  valid   99 

several  sheets  of  paper  not  fastened  together,  valid  ....  99 

writing,  must  be  in   99 

character  of  unimportant   99 

Kno\vledge  of  contents   137 

establishing,  method  of  139 

presumption  of  knowledge  137.  138 

testator  did  not  read  will,  wlicre  ....  137 

incapacitated    138 

foreigner   139 

unable  to  read  or  write 13S 

will   in  possession  of  testator,  where  138 
Lands,  devising,  validity  of  governed  by  law  where  l.iiids  situ- 

Jite   (>^ 

Letter  valid  as   99 

Lo.st  Vvills,  probate  of,  see  Lost  1 1' ills. 

Naturf  and  essentials  97 

law  governing  validity  of    97 

revocable    97 

statutory    ri(|uisites    I J5n 


i6o2  Probate  Law  and  Practice. 

WILLS— Coutiuitcd. 

Nature  and  essentials — Continued. 

testamentary  intent  necessary  

time  of  taking  effect 

Non-resident,  of,  see  Foreign  IVills. 

Nnncupative  wills,  see  Nuneupativc  Wills. 

Personal  property,  of.  validity  of  governed  by  law  of  d( 

Probate  of,  see  Probate  of  Wills. 

administration  granted,  after,  see  Probate  of  ]l 
caveat  against,  when,  see  Contested  Probate. 
contested,  see  Contested  Probate. 
doubts  on  face  of  will,  when,  see  Doubts  on  7 

Will. 
evidence  of  formal  execution  of  will,  when  con 
Publication  of.  see  Exeention  of  Wills. 
Republication  of  by  execution  of  codicil,  see  Codicil. 

Revocability  an  inherent  element  of   

Stealing,  a  crime   

Transmission  of  to  Prerogative  Court,  duty  of  Surrog;- 

Time  when  becomes  effective   

Validity  of,  what  law  governs  

Writing,  must  lie  in    

character  of  unimportant    

ink.  may  be  in  

partly  written  and  partly  printed,  may  be  .... 

pencil,  may  be  in    

several  sheets  of  paper,  may  be  on   

WITNESSES— See  also  Evidenee. 

Jurisdiction  of  Orphans'  Court  to  require  attendance 

Subpoena  to  appear.  Surrogate  may  issue 

penalty  for  disobedience  


SOUTHERN  REGIONAL 


AA    000  761  577    6 


